After 82 days of fighting for Mariupol, on May, 16, 2022, Ukrainian servicemen began to leave the territory of the Azovstal plant, which was the last outpost of the city's defense. In Ukraine, official sources talk about a rescue operation for the purpose of exchange, and in Russia they claim that the Ukrainian military yielded themselves prisoners. According to Ukrainian media, 53 seriously wounded people were transported to the occupied territory, to a medical facility in Novoazovsk to be provided with medical care, and 211 people were sent to the village of Olenivka of Volnovakha district (temporarily occupied territory) of Donetsk region through the humanitarian corridor.

However, according to the Russian media, on May, 25, 2022, Deputy Minister of Foreign Affairs of Russia, Andriy Rudenko, said that it will be possible to discuss the exchange of prisoners only after the trial of Ukrainian servicemen. That is why the issues relating to the status of prisoners of war, the possibilities of their conviction and the order of exchange came to the fore.

Status of the Parties to the Conflict

After the beginning of a full-scale Russian invasion on Ukraine and the resumption of the active phase of the russian-Ukrainian war on February 24, 2022, international institutions confirmed the previous status of russia as an aggressor state and a party to the conflict.

In particular, the UN General Assembly, by the Resolution "Aggression against Ukraine" A/RES/ES-11/1 of March 2, 2022, recognized the following:

  • aggression of the russian federation against Ukraine in violation of paragraph 4 of Art. 2 of the UN Charter
  • rf decisions in respect of certain districts of Donetsk and Luhansk oblasts of Ukraine as such that violate the sovereignty of Ukraine.

The International Court of Justice, by a decision dated March, 16, 2022, took note of UN General Assembly Resolution A/RES/ES-11/1, and obliged the rf to stop the hostilities initiated on February, 24, 2022, and to ensure that any military or irregular armed groups that may be guided or supported by it, as well as any organizations and individuals that may be subject to its control or leadership (this refers to self-proclaimed entities formed by russia in the occupied territories of the Donetsk and Luhansk regions of Ukraine — italics added), did not take any measures to support these hostilities.

Coordinated joint participation of units of the regular armed forces of russia and paramilitary groups (gangs) formed by it in the occupied territories of Donetsk and Luhansk oblasts of Ukraine in the conduct of hostilities against Ukraine, in particular, coordinated actions to block the Azovstal plant and to withdraw the servicemen of the Mariupol military garrison of the Armed Forces of Ukraine from there, testify to the coherent subordination of these units to the unified command center and confirm the effective control of their activities (it goes about self-proclaimed entities formed by russia in the occupied territories of Donetsk and Luhansk oblasts of Ukraine — italics added) by the russian federation.

In addition, on March, 16, 2022, the Committee of Ministers of the Council of Europe adopted Resolution CM/Res(2022)2 on the termination of the membership of the russian federation in the Council of Europe, according to which the rf aggression against Ukraine is recognized as a serious violation of russia's commitments under Article 3 of the Charter of the Council of Europe, as well as in the context of the procedure initiated in accordance with Article 8 of the Charter of the Council of Europe, from March, 16, 2022, russia's membership in the Council of Europe was terminated.

Thus, the above allows to reasonably consider the russian federation an aggressor state and a party to an armed conflict of an international scale, and any self-proclaimed bodies formed by russia in the occupied territories of the Donetsk and Luhansk regions of Ukraine can be reasonably considered as russia-controlled armed formations.

Status of Prisoners of War

International humanitarian law uses a system of legal statuses of persons that oblige the states (Powers) with the corresponding duties. Annex IV to the Convention on the Laws and Customs of War (Art. 3) provides that the armed forces of the belligerents may consist of combatants and non-combatants. However, in the event of being captured by the enemy, both enjoy the rights of prisoners of war.

In the sense of the Geneva Convention relative to the Treatment of Prisoners of War, prisoners of war are persons who have fallen into the power of the enemy and belong to one of the categories specified in Art. 4 of the list of categories, including members of the armed forces of the Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces (Part 1 of this Article).

In view of the wording of Art. 4 of this Convention, members of the Mariupol Military Garrison of the Armed Forces of Ukraine have the status of prisoners of war. In addition, given the public rhetoric, this is how our servicemen are recognized in russia. Additional confirmation of this status of Ukrainian servicemen comes from the involvement of the International Committee of the Red Cross in this process, whose activities are aimed at protecting prisoners of war and making their situation easier. In particular, the ICRC stated that the registration of prisoners of war was necessary to ensure their humane and dignified treatment.

Treatment of Prisoners of War

The Geneva Convention relative to the Treatment of Prisoners of War provides a wide range of requirements for the state regarding various aspects of the treatment of prisoners of war — premises, food, medical care, intellectual, physical activity, discipline, movement, financial resources, etc. To summarize, we can conclude that military captivity or internment is not about punishing the enemy's combatants, but about limiting the combat capacity of their country. Internment is exercised in order to deprive the opponent of a certain number of combatants through limiting their freedom. This is the basic concept of military captivity in modern international law, and it generates all other guarantees of protection.

Procedure for the Prosecution of Prisoners of War

Prisoners of war cannot be tried for participation in hostilities unless they have committed war crimes[1] and violated international humanitarian law. In a limited number of cases, they may also be tried for ordinary crimes committed before the armed conflict.

Trials of Prisoners-of-War

Any trial must meet the standards of justice, including independence and impartiality of justice, fairness of the decision, respect for the presumption of innocence, etc. (for example, Art. 10, 11 of the Universal Declaration of Human Rights, art. 14, 15 of the International Covenant on Civil and Political Rights, paragraphs 52-58 of the Report of the Venice Commission on the Rule of Law). Otherwise, the prosecution cannot be considered “judicial”.

The Geneva Convention relative to the Treatment of Prisoners of War contains a special Section VI on relations between prisoners of war and the authorities, art. 99-108 of which are devoted to the judicial proceedings. In particular, it is prohibited to:

  • exert any moral or physical coercion on a prisoner of war to induce him to admit himself guilty of the act of which he is accused;
  • no prisoner of war may be convicted without having had an opportunity to present his defense and the assistance of a qualified advocate or a counsel (Art. 99).

In any case where the Detaining Power has decided to initiate judicial proceedings against a prisoner of war, it shall so inform the Protecting Power as soon as possible, at least three weeks before the commencement of the trial. This period of three weeks shall run as from the date of which such notification reaches the Protecting Power at the address previously indicated by the latter to the Detaining Power (Art. 104).

According to Art. 84 of the same Convention, a prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offense alleged to have been committed by the prisoner of war. In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality.

A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed (Art. 102).

Therefore, in view of the status of the rf as a party to the armed conflict, the proper court that will administer justice in the cases of the Ukrainian military taken prisoners may be a national court, which jurisdiction shall be determined by the russian law to include these categories of cases. In this regard, we believe that any trials in the occupied territories of Ukraine will violate the Geneva Convention Relative to the Treatment of Prisoners of War.

However, there are reasonable doubts about the capacity of the rf to ensure a fair, impartial and independent administration of justice. The rf does not demonstrate its intention to take all necessary measures to ensure the full implementation of the guarantees for captured servicemen provided for in Article 14 of the International Covenant on Civil and Political Rights.

Penalties that may be imposed on prisoners of war

Under Article 87 of the Geneva Convention relative to the Treatment of Prisoners of War, the military authorities and courts of the Detaining Power may not sentence prisoners of war to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.

When fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as a result of circumstances independent of his own will. The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which the prisoner of war is accused, and shall, therefore, not be bound to apply the minimum penalty prescribed.

With regard to the application of the death penalty, the Geneva Convention relative to the Treatment of Prisoners of War imposes additional restrictions, as well as special requirements on states, in particular, in terms of the need to notify prisoners of war and the Protecting Power as soon as possible of the offenses for which the legislation of the Detaining Power provides for the death penalty (Art. 100). Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power upon which the prisoners of war depend (para 2 of Art. 100).

Thus, russia had to notify Ukraine and its prisoners of war about the suspected offenses for which russian law provides the death penalty. After that, any changes in approaches to the application of the death penalty in russia to captive members of the Ukrainian armed forces cannot take place without the consent of Ukraine as the Power of origin of the prisoners of war.

It should be noted that the Criminal Code of the rf provides for such punishment as the death penalty[2] in the form of non-public firing squad (Art. 59), for certain merits of criminal offenses. At the time of detention of members of the Mariupol military garrison, the death penalty was not applied in russia, on the basis of the decision of the Constitutional Court of the rf, of November 19, 2009. Currently, in russia, there is a wide public discussion about reviewing the practices of non-application of the death penalty. However, it should be noted that according to Art. 54 of the rf Constitution, a law that establishes or burdens liability shall not be retroactive. In this regard, we believe that the death penalty cannot be applied to the Ukrainian military, otherwise, russia's actions will violate the requirements of international humanitarian law and its own Constitution.

International Criminal Responsibility for violation of standards for judicial proceedings

Deliberately depriving a prisoner of war or other protected person of the right to a fair and normal trial is a serious violation of the provisions of international humanitarian law and shall constitute a war crime under subparagraph vi) of paragraph a) of Part 2 of Art. 8 of the Rome Statute. In addition, the application of the death penalty for non-compliance with due proceedings standards may also qualify as premeditated murder.
It is worth noting that russia does not recognize the jurisdiction of the ICC[3]. However, such jurisdiction was recognized by Ukraine, which allows the ICC to investigate international crimes (war crimes, crimes against humanity, genocide) committed throughout its territory. That is why the position of russia will not be able to protect its citizens from prosecution if their guilt is proved by the ICC, at least in the territory of those countries that have ratified the Rome Statute or have accepted the jurisdiction of the International Criminal Court.

List of Abbreviations

[1] War crimes should be understood as serious violations of international humanitarian law, such as willful killing, torture and (or) inhuman treatment, willfully causing unnecessary suffering, grievous bodily harm or damage to health, attack on the civilian population, deportation or illegal displacement of the civilian population, use of prohibited weapons (chemical, bacteriological, which causes excessive suffering or is indiscriminate) and/or methods of warfare, willfully causing great or significant destruction, misappropriation of property, etc.

[2] For reference: Over the past 26 years or so, the death penalty has not been officially applied in russia. This was due to the entry of the rf into the Council of Europe. At that time, the President of russia, Boris Yeltsin, issued a Decree No. 724 of May 16, 1996, by which he declared a gradual reduction in the use of the death penalty in connection with russia's membership in the Council of Europe. De facto, since then, an unofficial moratorium on the use of the death penalty has entered into force in russia, as Yeltsin ceased to consider cases of convicts sentenced to the death penalty. On April 16, 1997, Russia signed Protocol No.6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty (in peacetime), which was never ratified by the russian parliament. On November 19, 2009, the Constitutional Court of the rf ruled that no courts in russia can sentence to death.

[3] For reference: russia signed the Rome Statute on September 13, 2000, but had not ratified it until 2016. President of rf, vladimir putin, signed the order "On the intention of the Russian Federation not to become a party to the Rome Statute of the International Criminal Court" dated November 16, 2016 No. 361-rp. This decision was the basis for the rf's application to the UN Secretary-General with the notification of the Russian Federation in accordance with paragraph (a) of Article 18 of the Vienna Convention on the Law of Treaties of 1969 regarding the expression of its intention not to become a party to the relevant treaty (the Rome Statute).