Since the mid-twentieth century, each generation has been defined by war. War has dominated our society in the worldwide instability that has followed both World Wars and mass global colonization. Since 1947, the number of conflicts in the world have continued to rise. In recent weeks, we have witnessed yet another unprovoked disruption of a State’s sovereignty, leading to a conflict that has killed hundreds and displaced millions. With the casualties, pain, and suffering that seem inevitable in wartime, it is easy to forget that, as the International Committee of the Red Cross (ICRC) puts it, “even war has rules.”
The rules of war, or international humanitarian law (IHL), span a number of conventions and agreements, but perhaps the most important treaties governing IHL are the Geneva Conventions. Despite the Conventions providing clear instructions that direct state conduct in war, such guidance has so far been ineffective in ensuring both sides of the conflict adhere to their obligations. Some of the most notable regulations within the Geneva Conventions are the laws that determine treatment of prisoners in war time, from prisoners of war to civilian detainees. This in particular has been a pressing topic of conversation during this conflict, from Ukraine’s treatment of Russian prisoners of war to Russia’s forced removal of Ukrainian civilians.
The Geneva Conventions: A Brief Introduction
The Geneva Conventions went through several iterations before reaching the 1949 Conventions that are used today. There are four Conventions and three Additional Protocols:
- Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field
- Geneva Convention (II) on Wounded, Sick and Shipwrecked of Armed Forces at Sea
- Geneva Convention (III) on Prisoners of War
- Geneva Convention (IV) on Civilians
- Protocol Additional to the Geneva Conventions… relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted in 1977)
- Protocol Additional to the Geneva Conventions … relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted in 1977)
- Protocol Additional to the Geneva Conventions … relating to the Adoption of an Additional Distinctive Emblem (Protocol III) (adopted in 2005).
The States that have signed and ratified the Geneva Conventions are referred to as High Contracting Parties. High Contracting Parties are bound by their obligations under the Conventions. Initially, the Geneva Conventions primarily focused on International Armed Conflicts (IACs), which are conflicts between two High Contracting Parties, and obligations of such Parties in times of conflict. Additional Protocol I strengthened protections already included in the Conventions, and elaborated the rules governing means and methods of warfare. Common Article III, which is shared by all four Geneva Conventions, provided a basis for obligations of State and non-State parties in Non-International Armed Conflicts. Additional Protocol II expanded these obligations, acknowledging the range of forms a conflict can take. However, in discussing prisoners of war and civilian detainees, Geneva Conventions III and IV, as well as Additional Protocol I, are most important.
The Geneva Conventions are universal because, with the exception of the Additional Protocols, they have been ratified by all States. In particular, both Russia and Ukraine have ratified all four Conventions and Additional Protocol I. There are a few important notes to consider when applying the Geneva Conventions to the Russia/Ukraine conflict. First, the conflict is classified as an international armed conflict under Common Article II of the Conventions, because both Ukraine and Russia are High Contracting Parties and there is a “declared war … between two or more High Contracting Parties.” Second, under Common Article I, all High Contracting Parties must respect the Conventions “in all circumstances.” Lastly, there exists no exception in the Geneva Conventions that allows a State to disregard the treaty should another State fail to adhere to its obligations.
Ukraine and the Prisoners (of War) Dilemma
While Ukraine has acted defensively throughout this conflict, beginning with the Russian invasion, Human Rights Watch recently condemned certain actions of the Ukrainian Security Forces related to prisoners of war (PoW).
Geneva Convention III, Article 4 provides a long definition of PoW, which involves a member of specific groups (combatants) who have “fallen into the power of the enemy.” This includes members of the armed forces, members of volunteer militias who meet certain specifications, and individuals that accompany armed forces (such as war correspondents). The Convention and Additional Protocol I outline the protections under which PoW are expected to be detained, including the right to avoid trial for lawful acts of war, as well as the proper conditions for detention. The relevant provisions to the discussion of Ukraine’s treatment of Russian PoW address the right to humane treatment listed in Geneva Convention III, including protections of a PoW’s dignity.
Over the last few weeks, videos and photos of Russian soldiers have flooded social media around the world. The most popular of these videos showed a soldier’s blatant condemnation of the Russian war effort. These videos involve members of the Russian armed forces detained by Ukrainian Security Forces, who have classified them as prisoners of war. Oftentimes, the soldiers in the videos are bound or blindfolded, forced to identify themselves on camera, and/or interrogated by Ukrainian Security Forces. Some are captured in private moments, speaking to their family members on the phone. Others have been held at gunpoint and forced to speak to the camera.
There are several issues with the treatment of these prisoners. From a purely humanitarian perspective, these individuals are young, inexperienced, and in many cases, were not aware of the truth behind the invasion. In considering the objective legality behind Ukraine’s actions, it is important to remember the humans the laws are impacting. Geneva Convention III, Article 13 states that prisoners of war should be treated humanely, protected against “acts of violence or intimidation and against insults and public curiosity.” Human Rights Watch (HRW), in their condemnation, points directly to Geneva Convention III, Articles 13 and 14, as well as Additional Protocol I.
First, Article 13 of the Geneva Convention III states that “prisoners of war must at all times be protected… against insults and public curiosity.” This refers to the practice of parading prisoners of war among civilians as a way to boost morale, exposing them to insults and harm, resulting in humiliation. Both the ICRC and HRW have stated that publication of images and videos that could be humiliating, or offend a prisoner’s dignity, on social media can be considered “exposure to public curiosity.” Prisoners have been displayed as “blindfolded, gagged, or masked,” which could be offensive to their dignity. In its 2020 Commentary of the Geneva Conventions, the ICRC stated that “being exposed to ‘public curiosity’ as a prisoner of war … is humiliating in itself and therefore specifically prohibited.” This view has been further supported by Caitlin Kelly, a spokesperson for the ICRC. She clarified that the Conventions update alongside technology. Where the previous meaning of “public curiosity” referred to TV broadcasts and photographs, the more modern understanding envelops new technology, since “international humanitarian law does not make any distinction as to the communication channel used.”
Additionally, the ICRC has stated that protecting prisoners against public curiosity, any identification of prisoners should not be “transmitted, published, or broadcast,” with very few exceptions. In its 2020 Commentary to the Geneva Conventions, the ICRC mentions that, in modern times, “the prohibition [of exposure to public curiosity] also covers … photographic and video images, recordings of interrogations or private conversations or personal correspondence or any other private data.” The Conventions created a centralized agency through which warring parties can communicate the capture of military personnel. This agency provides a way for States to inform opposing Parties of a prisoners’ capture without exposing the prisoner to public curiosity. Communicating the capture of individuals to the public, or publishing personal information can “still be humiliating and jeopardize the safety of the prisoners’ families and of the prisoners themselves once they are released.”
Lastly, under Geneva Convention III, Article 17(4), torture or coercion of any kind must not be used as a means to secure information from a PoW. These videos, which sometimes show soldiers held at gunpoint while they reveal their identities and other personal information, could be in violation of the protections laid out in the Convention.
If these allegations are true, then Ukraine likely violated their obligation of humane treatment of PoW under Geneva Convention III. It should be noted that the Ukrainian Deputy Prime Minister has publicly assured the international community that Ukrainian forces are abiding by international humanitarian law in their treatment of prisoners of war.
Russian Forcible Removal of Civilians
Since its invasion of Ukraine in February 2022, Russia has committed a series of violations of its obligations under the Geneva Conventions, including, but not limited to, targeting civilians, targeting civilian infrastructure such as hospitals and schools, and indiscriminately attacking civilian areas. Additional Protocol I, Article 51 provides that “the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.” Recently, Russian forces bombed a humanitarian refuge in the city of Mariupol. All of these are violations of Geneva Convention IV and Additional Protocol I. Most recently, reports of Russia’s transfer of civilians out of Ukraine into Russian territory is not only troubling, but in violation of international humanitarian law.
Geneva Convention IV illustrates protections that are afforded to civilians under international humanitarian law. It covers the rights of civilians, referred to in the Conventions as protected persons, who fall into the power of another State in situations of conflict and occupation. More restrictions are placed on the Occupying or Detaining Power in the cases of protected persons. Occupying and Detaining Powers have slightly different restrictions because they hold slightly different roles.
According to Hague Regulation Article 42, “territory is considered occupied when it is actually placed under the authority of a hostile army.” Being placed under the authority of a hostile army refers to a Power’s ability to exercise de facto control over functions often attributed to the government, such as security. A Detaining Power is one that exercises control over internees, or civilians that have been placed in protective internment. Under the Geneva Conventions, protected persons can only be interned if they are considered a security threat, when other measures of control are inadequate, or when an individual volunteers to be interned.
Recent reports coming out of Mariupol, Ukraine reference Ukrainians being forcibly brought out of the city and into Russia by Russian forces. They have reportedly been brought to camps, where their personal belongings are checked and dispersed to Russian cities. Whether Russia is considered an Occupying or Detaining Power in Mariupol, this act is prohibited under international humanitarian law.
Geneva Convention IV, Article 49 prohibits “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power.” (emphasis added). This is unless an individual has been accused of an actual offense. Occupation merely indicates de facto control, not actual land ownership, and so transfers of protected persons out of Mariupol into Russia is a transfer between territories. Therefore, even if Russia is considered an Occupying Power in Mariupol, the act of removing protected persons from the city and bringing them into Russia is expressly prohibited under international humanitarian law.
If Russia is a Detaining Power, rather than an Occupying Power, its actions could still be unlawful under international humanitarian law. Articles 41, 42, 43, 68, and 78 of Geneva Convention IV state that a Party to the conflict must not intern protected persons unless it is absolutely necessary for security, other measures of control have proven inadequate, or an individual volunteers for internment. Even then, the internment should be reviewed consistently by a judicial or administrative source. However, none of the stated provisions allow for the detention or removal of protected persons from their State of origin.
Therefore, regardless of whether Russia is considered an Occupying or Detaining Power in Mariupol, the act of removing protected persons from the city and transferring them into Russia is likely in violation of its obligations under international humanitarian law.
Conclusion
The invasion of Ukraine in February 2022 began an international armed conflict to which there is no end in sight as of the time of publication. Despite a strong international framework of treaties governing the law of war, both members of the armed forces and protected persons have endured flagrant violations of international humanitarian law. While the rules of war are clearly stated and purportedly agreed upon, it seems that upholding international adherence to such laws will require more than a signature and a leader’s promise.
Author Biography: Andrea Lorch is a Senior Moderator for the International Law and Policy Brief and a J.D. candidate at The George Washington University Law School. She has a Bachelor of Arts in International Relations and Religion, and a minor in Islamic World Studies from Lake Forest College in Lake Forest, Illinois, United States. She is interested in international human rights law and international humanitarian law.