Treatment of Persons Hors de Combat in the Russo-Ukrainian War

Russian military forces have intensified attacks on several fronts in Ukraine since 24 February 2022. Regardless of the Russian government’s justifications in using force against Ukraine, there is an international armed conflict ongoing between Ukraine and Russia, which requires both parties to respect international humanitarian law (IHL).

On 2 March 2022, the Ukrainian Special Operations Forces announced it will no longer capture Russian Ukrainian artillerymen, warning it will not spare troops in response to the brutal shelling of civilians. The Kyiv Independent, a Ukrainian English-language media outlet, tweeted that the command of the Ukrainian Special Operations Forces has warned that it will kill captured Russian artillerymen in response to their “brutal shelling” of civilians and cities’. This drew plenty of criticism on social media, which compelled them to backtrack and update the statement as follows: ‘the command of Ukraine’s Special Operations Forces has warned that it will not spare Russian artillerymen in response to their “brutal shelling” of civilians and cities.’

This post evaluates the rights of combatants who have laid down their arms and those placed ‘hors de combat’ to be treated humanely in all circumstances without distinction under IHL, with a particular focus on the ongoing international armed conflict between Russia and Ukraine.

How does IHL protect persons hors de combat?

As a matter of international law, IHL rests on the willingness of the conflict parties to ensure basic protections during the hostilities. This is particularly the case when combatants are captured by the adversary party. IHL protects those who are not, or are no longer, directly participating in hostilities. This is a matter for the prohibition of attack against persons hors de combat, regulated by Art 41 of Additional Protocol I to the Geneva Conventions to which both Russia and Ukraine are a party. According to Art 41:

‘2. A person is ‘hors de combat’ if:

(a) he is in the power of an adverse Party;

(b) he clearly expresses an intention to surrender; or

(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape.’

This is explicitly relevant to the ongoing armed conflict between Russia and Ukraine when it comes to the prisoners of war (POWs). Art 41 continues by stating in the third paragraph that ‘when persons entitled to protection as prisoners of war have fallen into the power of an adverse Party under unusual conditions of combat which prevent their evacuation as provided for in Part III, Section I, of the Third Convention, they shall be released and all feasible precautions shall be taken to ensure their safety.’ This is becoming a matter of concern in the Russo-Ukrainian War due to the Ukrainian Special Operations Forces’ threat to kill or not sparing captured Russian artillerymen in response to their shelling of civilians.

It is commonly accepted that attack against and killing and injury of an adversary placed hors de combat is a grave breach of IHL. According to Rule 47 of the ICRC Study on Customary Humanitarian Law, state practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. While all those who take a direct part in hostilities must respect this rule, in practice it will be particularly relevant for military commanders of the conflict parties. Violating this rule would amount to war crimes under Art 8(2)(b)(vi) of the Rome Statute of the International Criminal Court (ICC), according to which ‘killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion’.

As for the ‘statement’ of the command of Ukraine’s Special Operations Forces about killing captured Russian artillerymen or not sparing them in response to their brutal shelling of civilian objects, even if the statement has not yet triggered killing and injury of persons hors de combat, such a s statement itself could be interpreted as a no quarter order, prohibited under IHL. According to Rule 46 of the ICRC Study on Customary Humanitarian Law, ‘ordering that no quarter will be given, threatening an adversary therewith or conducting hostilities on this basis is prohibited.’ This is the end of the matter. Similarly, under Art 8(2)(b)(xii) of the Rome Statute, ‘declaring that no quarter will be given’ is a serious violation of the laws and customs applicable in international armed conflict which also constitutes a war crime.

Protecting POWs from ‘public curiosity’

Information warfare is inextricably a component of the ongoing conflict between Russia and Ukraine. One feature of such information warfare has been the fairly regular circulation of numerous videos and images of captured or surrendered Russian soldiers by Ukrainian soldiers on social media. The apparent purpose of such public display of captures Russian soldiers by Ukrainian forces is to demonstrate Ukraine’s successes in the war (Russia would likely have done something similar had it captured as many Ukrainian combatants), and to demoralize the adversary. But even though such tactics may be successful in achieving their goals, they are still prohibited, as they run counter to the obligation to protect POWs against insults and public curiosity under the second paragraph of Art 13 of the Third Geneva Convention. This provides that ‘prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.’ According to the ICRC Commentary on the Third Geneva Convention, this ‘is particularly relevant in the age of mass media and social media, given the ease with which images and comments can be spread around the world.’ While in some limited cases parading Russian POWs in online videos could be considered justified (e.g. to provide evidence that Russian POWs are alive and well), the videos currently being circulated mostly can be seen as a form of public humiliation, endanger their families and make a return to their own state more difficult.

Conclusion

Now that the ICC has opened an investigation into the situation in Ukraine encompassing the alleged war crimes falling within the jurisdiction of the Court, the Ukrainian command’s above-mentioned statement, parading Russian POWs in online videos, and their possible inhumane treatment of the captured soldiers would discredit Ukraine, even though it has been a victim of the Russian aggression and its indiscriminate and disproportionate attacks. As far as war crimes are concerned, the ICC will investigate any crimes committed during the conflict, regardless of the affiliation of the combatants. Ukrainian officials, officers and soldiers should be careful not to expose themselves to criminal liability.

The fact that Russia appears to be systematically violating IHL in how it conducts hostilities in Ukraine is no excuse for Ukraine to violate other rules of IHL designed to protect persons hors de combat. Reprisals against POWs are categorically prohibited under Art 13 of the Third Geneva Convention and customary IHL under Rule 146 of the ICRC Study on Customary Humanitarian Law (‘belligerent reprisals against persons protected by the Geneva Conventions are prohibited.’)  We should all be reminded that some rules of IHL are so fundamental that they must be respected in all circumstances, regardless of the lawlessness of the adversary.