I recently wrote a column on why I believe that the Russians are now committing flagrant war crimes. Ukraine is the victim of those crimes and the images from that country are truly sickening. Vladimir Putin and his government now stands as not just a pariah among nations but criminal actors who have shattered the most basic principles of international law and the Law of War. In that context, it is difficult to raise questions about the response of Ukraine, which is facing annihilation at the hands of a tyrant. However, Ukraine is reportedly showing videotapes of Russian POWs. While it pales in comparison to what is being done by the Russians, the practice may violate Article 13 of the Geneva Conventions. Despite my strong and ongoing support for Ukraine in this struggle, it is important to flag such potential violations when they occur. It also has bearing on the media in using such images.
The Ukrainians are showing weeping Russian prisoners of war who denounce Russia and declare that they were used like ‘cannon fodder’ by Russian commanders. The video airing on the networks show “Security Service of Ukraine” across the top of the images.
As civil libertarians, we are often compelled to raise concerns despite our revulsion with the conduct or views of a party. These soldiers are combatants protected by the Geneva Conventions and other treaties. Ukrainian POWs are protected under the same status.
The issue of filming POWs has long been contrary to the Geneva Conventions.
Here is the relevant provision:
COMMENTARY OF 2020
ARTICLE 13 : HUMANE TREATMENT OF PRISONERS
Text of the provision*
(1) Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.
(2) Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
(3) Measures of reprisal against prisoners of war are prohibited.
* Paragraph numbers have been added for ease of reference.
Likewise, the Fourth Geneva Convention, covering civilians, states:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 27, Aug. 12, 1949, 6 U.S.T. 3516.
Obviously, these provisions do not expressly ban filming of POWs but protects them from acts of “intimidation and … insults and public curiosity.”
The International Red Cross and other international humanitarian groups have long condemned the filming for POWs for propaganda or public messaging.
“Being exposed to ‘public curiosity’ as a prisoner of war, even when such exposure is not accompanied by insulting remarks or actions, is humiliating in itself and therefore specifically prohibited. For the purposes of the present article, ‘public’ should be interpreted as referring to anyone who is not directly involved in handling the prisoners of war, including other members of the Detaining Power. Exposure to public curiosity can take many forms. The prohibition undoubtedly covers parading prisoners in public. Moreover, prisoners must not be exposed to humiliation when they leave their camp for work, are transferred to another facility or are being repatriated. In modern conflicts, the prohibition also covers, subject to the considerations discussed below, the disclosure of photographic and video images, recordings of interrogations or private conversations or personal correspondence or any other private data, irrespective of which public communication channel is used, including the internet. Although this is seemingly different from being marched through a hostile crowd, such disclosure could still be humiliating and jeopardize the safety of the prisoners’ families and of the prisoners themselves once they are released.”
During the Iraq War and other conflicts, the United States has objected to the filming of American POWs as a violation of Article 13.
There have been debates over the use of photos where the identity of POWs are obscured but that is not the case in the Ukrainian footage.
In ACLU v. Dep’t of Def., 543 F.3d 59, 90 (2d Cir. 2008), vacated on other grounds, 130 S. Ct. 777 (2009). the court allowed the release of Abu Ghraib photos of detainee abuse as an exception to these rules but only because the identity of the individuals was obscured.
It is not clear who is in possession or took the videotapes of these POWs. Many citizens are joining the front lines in this fight. However, as difficult as it is in this fluid battlefield, Ukraine is under an obligation to seek adherence to the conventions.
One answer cannot be that the Russians deserve it. The Conventions are only viable if they are applied evenly. If we apply the rules selectively, the Russians will claim the same exceptional status in their treatment of Ukrainian POWs.
There may be a claim that these POWs volunteered to make such statements. For example, the media may claim that it was given access to these soldiers who agreed to be interviewed. The Red Cross has always been leery of such consent claims when a combatant is being held. Moreover, one article suggests that the government was behind the display, noting “Ukraine on Wednesday invited the worried mothers of Russian troops captured on the battlefield to come and collect their sons.”
We need to know more about these circumstances, but these videotapes raise a credible concern over adherence to Article 13.