Russia said on Friday that more than 1,900 Ukrainian fighters had moved from the Azovstal steel plant to Mariupol in recent days. At least some of those fighters were taken to a facility in Russian-held territory in eastern Ukraine, according to the Russian Defense Ministry.
In Ukraine, authorities have already tried three captured Russian soldiers for war crimes. One soldier, Vadim Shishimarin, 21, pleaded guilty to shooting and killing an unarmed civilian in the Sumy region of northeastern Ukraine during the first week of the war. He faces a life sentence if convicted. Two other Russian soldiers are also on trial for bombing civilian targets in the Kharkiv region.
Here’s what you need to know about prisoners of war and the rules governing their treatment under international law.
What are prisoners of war?
Prisoners of war, or prisoners of war, are members of the armed forces, combatants of certain militias or volunteer forces who “have fallen into the power of the enemy” during a conflict, according to the Third Geneva Convention, an international agreement adopted in 1949 as part of a set of treaties regulating the rules of war.
Other groups falling into this category include military support personnel, contractors, and residents of unoccupied territories who spontaneously take up arms to join the fight.
“‘POW’ is a very important status because it brings with it privileges and protections,” said Laurie Blank, an expert in the law of armed conflict at Emory University. “It’s essentially the most protective status for individuals who are captured.”
But the question of who counts as a bona fide prisoner remains fraught with difficulty – and is often decided by the captors themselves.
The US has applied the label unevenly at times – it used it extensively during the Vietnam War, but has been criticized by rights advocates for not designating captured Taliban fighters as prisoners of war early on. of the American military operation in Afghanistan.
In Ukraine, the total number of prisoners of war captured by both sides remains uncertain. The ICRC said on Thursday that it had registered hundreds of Ukrainian prisoners of war from the Azovstal factory this week, “at the request of the parties”.
The registration process includes the collection of personal data so that the ICRC can track prisoners and help them stay in touch with their families, the organization said.
But because the Kremlin has repeatedly called Ukrainian fighters in Mariupol “Nazis,” some rights groups and legal experts fear Russia is denying Ukrainian captives POW protection.
Russia’s prosecutor general this week asked the country’s highest court to designate the Azov Regiment, an original far-right group that fought in Mariupol, as a terrorist organization, local media reported.
Moscow questions the exchange of prisoners; soldier pleads guilty to killing
What rights does international law give them?
Russia and Ukraine are among some 200 countries that are parties to the Third Geneva Convention, which sets out the rights of prisoners of war.
Prisoners “shall at all times be treated humanely”, the convention says, and it is forbidden to intentionally kill, torture or conduct medical or scientific experiments on captives. Detainees must also be protected against “violence or intimidation and against insults and public curiosity”.
Countries must provide POWs with medical care and decent housing, among other requirements. They must also be held in designated POW camps rather than prisons. When a conflict ends, captives must be returned home quickly.
Under the convention, the ICRC, a neutral organization, has the right of access to prisoners of war to ensure their humane treatment. The organization said on Friday it had visited prisoners on all sides of the conflict and briefed “hundreds of families on their loved ones”.
The details of the ICRC’s work and its findings generally remain confidential.
The Russian and Ukrainian governments have pledged to treat prisoners of war in accordance with international law, but rights groups have accused both sides of abusing prisoners.
In March, videos circulating online appeared to show Ukrainian forces shooting captured Russian fighters in the legs. Ukrainian authorities said they would investigate.
Amnesty International has also documented summary killings of captives by Russian-backed separatists in eastern Ukraine, the organization said on Tuesday, warning that Mariupol fighters “must not suffer the same fate”.
Can prisoners of war be tried?
It depends. Prisoners of war cannot be tried for having fought in a conflict. But they can be prosecuted for war crimes, including deliberately targeting civilians or attacking civilian sites like hospitals or schools.
What are war crimes, and is Russia committing them in Ukraine?
Prisoners of war have the right to a competent lawyer and to a fair trial, and they can appeal their conviction and sentence.
Russian soldier faces 1st war crimes trial since Moscow invasion #Ukraine pleaded guilty to killing an unarmed civilian.
Some wonder about international law: can a Ukrainian court try him?
Short answer: Yes.
But it’s worth a thread… https://t.co/n7RPeOY962 pic.twitter.com/rfqh5kyVWp
—Andrew Stroehlein (@astroehlein) May 19, 2022
Yet it is unusual for prisoners to be tried while a conflict is still ongoing. It may be advantageous to do so while the evidence is recent, experts said, but politics also play a role.
Ukraine has already started prosecuting Russian soldiers for war crimes, including Shishimarin, accused of killing an unarmed elderly man. The man’s widow initially called for Shishimarin to be sentenced to life in prison, but also said she would support his exchange for Ukrainian soldiers from Mariupol who are currently being held by Russia. The court will sentence Shishimarin on May 23.
Russian soldier asks for forgiveness from victim’s family in Ukrainian court
Ukraine’s justice system has improved in recent years, said Aisling Reidy, senior legal adviser at Human Rights Watch. The ongoing war crimes prosecutions in Ukraine are also under scrutiny.
Russia, however, has a highly politicized justice system and a conviction rate of more than 99%, according to Russian officials. Authorities have signaled that they intend to prosecute some of the fighters who surrendered from the Azovstal plant to Mariupol.
“In the past, there has always been a degree of caution in prosecuting prisoners because of the fear that the other side will prosecute prisoners of good,” said William Schabas, professor of international law at the University of Middlesex in London.
Is it legal to film prisoners of war?
The rule regarding protecting POWs from ‘public curiosity’ was enacted in response to World War II, when the Germans paraded Allied pilots through towns where prisoners were harassed and sometimes lynched, according to Schabas .
That protection extends to the staging of prisoners of war, experts said. Violations do not count as war crimes, Blank said, but the rule is intended to protect the dignity of captured soldiers, who are especially vulnerable in enemy custody.
Rights groups have raised concerns about Ukraine posting videos early in the war of captured Russian soldiers on social media, some of which appeared to show them intimidated.
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The Russian Defense Ministry posted videos on its Telegram channel this week that appeared to show wounded Ukrainian soldiers in a hospital. In the videos, the men say in Russian that they are well treated and examined by doctors.
Even though the footage appears intended to show Moscow is playing by the rules, sharing clips of prisoners is still prohibited, Blank said.
But the legal imperative changes when prisoners of war are tried. In this context, it is essential that the proceedings are monitored and made public to ensure that the defendants receive a fair trial, Reidy said.
In Russia, the lack of independent media and watchdog groups would raise concerns about the fairness of trials there, she said.