Civilians are Protected Under GC IV 1949: The Illegality of Russian Filtration Camps under IHL

This piece examines the illegality of Russian filtration camps considering International Humanitarian Law (IHL). Filtration camps are set up by Russia for Ukrainian civilians implicated in Russia’s war against Ukraine. The illegality of such camps is to be presumed in IHL rules on civilian internment contained in Geneva Convention IV 1949 (GC IV). While IHL does not contain the term filtration, this does not signify that IHL allows the setting up and existence of such camps. Although IHL permits civilian internment in times of an International Armed Conflict (IAC), it does so under very specific and protective rules set out in GC IV. This contribution argues that IHL does not allow for filtration camps. Creating and maintaining such camps cannot be justified based upon IHL.

A first question is how to define filtration. So far, what can be deduced from Russia’s practice is that filtration is a process intended to single out those civilians who can acculturate into Russian society, and remove those who won’t. This process is perilous for the life of those implicated. IHL does not allow for such a process to be inflicted upon either POWs or civilians. Civilian internment rules contained in GC IV also do not allow for torture, degrading treatment or any other form of humiliation, let alone starvation and keeping internees in inhumane conditions. Such practices also violate Article 75 on fundamental guarantees of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts 1977 (AP I). The post concludes with the assessment that Russia running such filtration camps is a grave breach of GC IV 1949.

Civilians as key targets in Russia’s war against Ukraine

According to IHL, when it comes to civilian protection, all the warring parties must ensure that the civilian population is not made the object of attacks, and acts or threats of violence that aim to spread terror among the civilian population are prohibited under IHL (see Article 51, AP I). It has been almost nine months since Russia unleashed its brutal war on Ukraine. Most civilian casualties in this war are from deliberate Russian airstrikes, targeting and destroying residential buildings in Chernihiv, Kharkiv, Kherson, Mariupol, and Kyiv (here and here). Russia has consistently targeted civilian infrastructure and essential objects for civilian survival across Ukraine, too. Water and electricity plants are intentionally destroyed by Russia, leaving the population in severe cold and without drinking water (here, here and here). Ukrainian civilians are thus a primary target of the Russian Federation (here, here and here). Russia’s actions are directly geared towards inflicting suffering on Ukrainians. Those Ukrainian civilians who happen to fall under Russian control are further subjected to Russian filtration camp procedures. It appears that the entire idea behind Russian filtration program is to discern whether Ukrainian civilians are loyal to Ukraine and to erase their Ukrainian identity. Via filtration camps Russia identifies civilians who they believe can assimilate into Russian culture and remove those who won’t.

When Russian forces invaded Ukraine this year, and started establishing control over villages and towns in eastern Ukraine in early March, it soon became known that Ukrainian civilians were forced to undergo humiliating identity checks and often violent questioning before being allowed to leave and travel to areas still under Ukrainian control – or so they assumed, because in reality at the end of the day they were sent to Russia proper. The first Report on Violations of International Humanitarian Law and Human Rights Law, War Crimes and Crimes Against Humanity Committed in Ukraine Since 24 February 2022 raised the issue of Russia forcibly deporting Ukrainian civilians into its own territory (at pp. 23–24). The follow-up second report of 14 July 2022 flags the issue of filtration. It mentions, for instance, the plight of civilians held in a tent camp in Glushkovo, Russia, and in a prison in Kursk, some 400 kilometers from the Ukrainian border. According to the report, the interviewees shared harrowing accounts of treatment, involving violence and humiliation, labelling the detention centre “a living hell” (at 24, see also at 30, at 68-70, at 107).

Russia is accused of setting up filtration camps, where Ukrainian civilians fleeing the fighting are placed in detention, subjected to torture, beatings, humiliation and are held in inhuman living conditions (here, here, here). There are reports of detainees undergoing mock-executions too. It is reported that such centers were set up across towns and villages mostly concentrated in the DNR, including Novoazovsk, Mangush, Bezimenne and Nikolske. During the UN Security Council 9126^th meeting held on 7 September 2022, some country representatives expressed their concerns over accounts that the Russian Federation was detaining, processing and deporting Ukrainian men, women and children in filtration camps and detention centers.

Because IHL is regarded as a lex specialis applicable in times of armed conflicts (ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 9 July 2004, § 106), the question is whether setting up and maintaining such facilities is in accordance with IHL rules on internment.

Russian ‘filtration’ camps are a violation of IHL rules on internment

The term “filtration” does not appear in GC IV 1949. Rules 41 to 43 as well as Rule 78 of GC IV pertaining to assigned residence and internment contain no such term. Internment and assigned residence, in turn, do not mean filtration. The commentaries to these articles offer no such suggestion. It is submitted that GC IV condones no practice of filtration, as the spirit of GC IV is based on the notion of respect for the human person and the principle of humane treatment. (B. Oswald and L. Iapichino, Treatment of Internees, in A. Clapham et al. (eds.), The 1949 Geneva Conventions Commentary (Oxford University Press, 2018) 1349-1371, at 1351)

Considering the GC IV, internment and assigned residence come forth as measures of last resort which a person protected under GC IV may be subjected to (see ICTY, Prosecutor v. Delalić et al. (Judgment), Case No IT-96-21-T, Trial Chamber 1998, §572). The internment of civilians needs to be done on an individual basis. Internment can be explained as deprivation of liberty, in contexts of armed conflicts. It can be ordered by the executive branch, without criminal charges against the internee. According to Article 42 (§1) GC IV, contained in section II, titled “Aliens in the territory of a party to the conflict”, the rule is to be applied to the own territory of the belligerent party. According to this article, the following is accepted:

“The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.”

Article 78 of GC IV, in section III titled “Occupied territories”, says that internment is possible if the occupant considers:

…it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention.

The language of those two articles is not identical. Nevertheless, the commonality lies in both using a similar formulation: Article 42 contains “security of the Detaining Power makes it absolutely necessary”, Article 78 “necessary, for imperative reasons of security”. These terms are to be viewed as synonymous, requiring the person to be posing a significant danger to the “internal or external security of the detaining power that cannot be adequately addressed by less intrusive measures than his or her internment”. (N. Melzer, International Humanitarian Law, ICRC 2016, at 190)

Security concerns can be explained by instances and examples of direct participation in hostilities, assisting the enemy, membership in organizations causing disturbances, or carrying out subversive acts within the territory of the detaining power (ibid., at 190–191). The mere fact of being an enemy national cannot be regarded as a security matter or imperative reason of security (ibid.). The internment of a person should be reviewed by an appropriate court or an administrative board, and not by an individual judge or military officer (ibid., at 191). In other words, those interned should be subject to periodical review, every six months, by a competent body which should provide sufficient guarantees of impartiality, fairness, and shielding from arbitrariness. Such reviews should take place in frequent intervals to ensure that any person who does not fall in the categories of persons for internment as per IHL is released without delay (Hassan v. United Kingdom, Grand Chamber Judgment, Ap no. 29750/09 (2014) §106 and 104).

Conclusion

Russia placing civilians in filtration camps is a violation of the above-mentioned rules. Furthermore, Russia is not providing any competent and adequate periodic reviews to those protected under GC IV who are in its hands. Instead, a handful of Russian soldiers execute the so-called filtration process. Witnesses who have endured those camps detail traumatic and distressing treatments such as torture, malnutrition, humiliation and interrogations (here, here and sources above). Therefore, Russia’s filtration camps for Ukrainians are a flagrant violation of the accepted rules on internment set out by the GC IV. Filtration camps are to be considered a grave breach of Article 147 GC IV because Russia is engaged in “torture or inhuman treatment … unlawful deportation or transfer or unlawful confinement of a protected person(s)”. Running and maintaining such camps also violates Article 75 of AP I, especially §2, 3, and 6. Finally, Russia organising, administering, and continuing with the filtration camps is a war crime under Article 8 of the ICC Statute.

Image: ‘Barbed wire with wire tensioners’, by Reinhold Möller (Creative Commons Attribution-Share Alike 4.0 International).