Does the Filming of the Russian POWs Violate the Geneva Conventions?
S E E D E D C O N T E N T
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 of 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.
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:
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
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 were 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 combatants 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.
Jonathan Turley
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Funny, parading prisoners used to be a Russian thing. I'm sure it is against the Geneva Convention. War is a dirty business. I wonder if they'll do like the old Soviet Union used to do and put those prisoners in work camps for the rest of their lives?
No, there will be a prisoner exchange. If this cursed thing ever ends.
The Russians have taken Ukrainian solders prisoners as well. 13 for sure that have been documented from Snake Island- that Ukraine originally posted as heroes- all being lost defying the Russian Navy. I am sure there are many others; but Russia seems to be keeping quiet for a change. Maybe Putin is using discretion for once and trying not to anger people he wants to willingly join him? There is a first time for everything.
I am against anyone using POW's as propaganda pieces. That includes what Russia did with the 13 Ukrainian soldiers from Snake Island. That also includes our supposed ally Ukraine doing televised interviews with Russian POW's' and parading them for pictures in public. Context doesn't matter- the law is the law. I really don't care how pissed off the Ukrainians are- they are supposed to be better than the Russians.
We really need to take a long hard look at who we are backing with our weapons and aid. We are allies with countries that are Democracies in name only. That have long lists of human rights violations. And many that have far right radical nationalist groups that operate freely within their borders.
Remember where supporting the Taliban and Al Qaeda against the Russians in Afghanistan got us? We may be receiving more of those types of thank you from people that we backed that don't share our morals, beliefs, or ideals.
I hope this war ends as quickly as possible- with as little loss of life as possible. It doesn't look like that is going to happen, and it will turn into a regular slow moving Russia slog to siege until the enemy cracks; or nothing is left standing.
You are right. Right now we are all caught up with the heroic call to arms of the Ukrainians. There is a lot to think about here.
funny, the party of gitmo, torture, and secret prisons using the geneva convention as a cudgel...
Look again, the article comes from a Law Professor not a political party.
Turley has long since been a flack for the political right.
A 'right' wing hack!
Can't play the politics game since it occurred under BOTH parties.
Oh is that your opinion? You probably also consider Nikole Hannah-Jones to be a "historian."
You won't mind if I dismiss your characterization?
Are you putting words in John's mouth?
I am quite sure you have never read the 1619 Project so your opinion of the authors is meaningless.
Google
American Iraqi prisoner pics
American journalists "break" the rules of the Geneva Convention every conflict
because there are no consequences. Period
It's pulp fiction, John.
What's your point?
That crying about seeing Russian pictures of prisoners is pointless.
you know it.
Turley knows it.
Turley is just selling words for his own income.
That's your job.
To an extent it is pointless. We can't do anything about Russia and the US will punish it's own, but the article questions something the Ukraine is doing. Do we even acknowledge what they are doing?
Then what do you call extra judicial drone killings? Bush Jr, Obama, and Trump all did in countries we were not a war with; and they didn't always hit the target. Or if they did it was a bad target- meaning no combatants but civilians. It got to be so bad under Obama that he changed the way enemy combatants were counted. Better still each of the 3 upped the number of drone strikes. Obama outdid Bush Jr; and then Trump outdid Obama. You would think that Biden would be able to avoid the problem with the US withdrawing from Afghanistan; but no, as a parting gift he did a drone strike that mistakenly took out a US aid worker and his family. Seems that none of them thought international law mattered when it came to drones strikes.
Unlike some, I expect all to honor the law regardless of party. We are supposed to be better than our enemy; when we aren't it adds to the fodder they use against us and attracts new members to their cause.
I would suggest that too many touchy feely types kept adding protocols to the GC and that no one
being photographed with or without their permission is being humiliated or tortured by being filmed.
Of course. Where do you think the pictures are coming from? This at least the third seed where it's been
argued that the Ukrainians are some horrible lawbreakers by using their cell phones to reveal the facts.
You think journalists are signatories to the Geneva convention? Do you know what the Geneva convention is?
No, do you?
Why waste time with rhetorical BS Sean? I included the ICRC link in a comment to you yesterday.
That is true. It's when they are being paraded in front of the opposing population.
This at least the third seed where it's been
argued that the Ukrainians are some horrible lawbreakers by using their cell phones to reveal the facts.
Is this going to be like the mask mandate?
We all wish the Ukrainians well. We are united. On the other hand humiliating POW's cannot be ignored.
No, do you?
Do you not understand your own post? The rules don't apply to media. how can they break them?
Actually, he’s a liberal, but not a progressive
That is sooooo snow flaky isn't it?
Grown ass men with guns invaded another country in a flagrant violation of all normalcy and existing laws
and some of us are concerned about them being humiliated?
smh
You act like the Ukranians are violating the Geneva convention by defending themselves against the murdering thug Putin regime.
I understand that you will take an opposite stance to anything I write, 99.99% of the time.
Now you sound like guns don't kill, people do.
Do States, the signatories to the GC, take the pictures? No.
Sounds like a project for you and those law professors to add another protocol making individuals
with cell phones and Journalists with cameras liable for breaking the GC, if they sign on.
Sounds pretty sketchy to me.
He has been defending the Russian invasion and vilifying the Ukrainian response, consistently in these comment threads.
A cudgel for what?
There are requirements for photos to be taken listed in the below link and I know there are other photos that are taken for medical purposes. I've been digging into this for a day or 2 now and I can't find anything that specifically prohibits it.
Interesting. So the Ukrainians haven't crossed the line?
Of course, there won't be any war crimes trial for the Russian side, right? A nation needs to be totally defeated and occupied before there can be a war crimes trial. We learned that a long time ago.
Not that I can find so far. We also have to keep in mind that several other countries have done the same thing. Remember when Saddam was captured? The video of him climbing out of the spider hole in Tikrit? I'm pretty sure every country has published video or photographs of POWS at one point or another.
That depends on the Hague, really. There is been video out there of Russian BRDM's and BMPs targeting cars and trucks driven by non-combatants.
What about section 2 of Article 13:
(2) Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
Are they not making the prisoners open to insults and public curiosity?
You mean they could charge them in absentia? That to me is meaningless. You would need to have conquered Russia to charge, put on trial and punish war criminals.
This is where nuclear weapons have left us.
I understand that as protecting them from repercussions such as attacks because they are, in fact, the enemy. Whether it be from physical attack, verbal attack, etc. Also protecting them from non-official photographers. Despite the fact they are the enemy, they should still be treated with dignity and respect. That's where Article 23 comes in.
One issue that I witnessed in Afghanistan was the number of people who would crowd around the HLZ when a POW was moved. US and Afghan soldiers would gawk at the prisoners as they were placed in the UH-60's. The Afghan military, at times, would throw objects at the prisoners. We resolved the issue by installing 15 foot " Texas Barriers " around the HLZ with multiple 90 degree turns at the entrance to block the view. We also blocked all roads leading to the HLZ to prevent ANYBODY from getting close.
This whole thing is still in it's infancy. We don't have a full idea of what either the Russian or the Ukraine military are doing. We're getting bits and pieces that tell a very small story.
I think that is the hot spot for many. The nuclear munitions weren't the first thing I though of. I looked mainly at the conventional forces that are active. Heavy Brigades and Divisions, Infantry movement, logistics, things like that. After 20 years of fighting an insurgency that had to scavenge for everything, my mind was more at ease seeing a uniformed enemy. That's what the beginning of my career trained me for.
I really don't think there will be war crimes for the Ukrainians either; unless the Russians conduct it themselves.
World sentiment is strongly against the Russians actions in Ukraine. I highly doubt Ukrainians will be brought before the Hague; unless they are Russian Ukrainians.
I could be wrong; but Putin might settle for what he achieve in Georgia. Russia annexes the heavily Russian parts of Ukraine; and Ukraine agrees that it will stay neutral (no joining NATO or the EU).
Of course being neutral didn't stop Georgia from sending troops to help out Ukraine against Russia. Georgia might just get back on Putin's hit list.
We are getting very little information on the Ukraine.
I think that is the hot spot for many. The nuclear munitions weren't the first thing I though of. I looked mainly at the conventional forces that are active. Heavy Brigades and Divisions, Infantry movement, logistics, things like that. After 20 years of fighting an insurgency that had to scavenge for everything, my mind was more at ease seeing a uniformed enemy. That's what the beginning of my career trained me for.
Thus far it has been a conventional war. I don't think nuclear weapons are even on the table. Nuclear weapons is what has protected Russia now and as the Soviet Union from any direct response by NATO or the US or the penalties of the Geneva Convention. It is what keeps the west limited to sanctions. It is the sad legacy of WWII - that nuclear weapons fell into the hands on the Communist powers and forced us all to co-exist with them indefinitely.
Sorry, history has taught us what a ground war in Russia would cost. Russian soldiers might not have the stomach to invade another country and do what it takes to hold it; but as Hitler found out in WWII- they will fight to the last man to hold their motherland.
I don't care how much of an advantage we have technology and training wise; a ground war and occupation in Russia is to be avoided.
Absolutely.
Napoleon discovered that as well.
On one hand that's a good thing. No leader should be publicly announcing their military's movements. On the other hand we have all the conspiracy theorists running around chirping about everything and everything.
Which is something that is really unheard of. But I don't think the nuclear arsenal is the foremost fear in most Soldiers minds. Senior leadership, it should be. I'm going to make a guess that Russia is subject to the Geneva Convention as well (I honestly don't know for sure). They were allies when it was all worked out shortly after WWII. So I'm pretty sure they know what they are. They could also use that knowledge and find ways to skirt around it as well.
I think Hitler's invasion of Russia was marred by not only the determination of the Russian Soldiers but by Hitler's stupidity / ego, weather and basic logistics. I have seen reports of the Russian military having some serious logistical problems. Running out of fuel and food. I haven't seen anything definitive on it yet, I'd venture a guess that a large part of that 40 mile convoy is nothing more than supplies.
Who is "we"? Since this conversation is only about Russia and Ukraine.
Vietnam 1966
I doubt that would violate section 2. They are not parading them in front of spectators. People looking at a picture can't insult or injur those prisoners.
That's just a picture.
I wasn't saying that it was a violation of section 2. It was posted to point out that the US has posted photos of POW for decades.
US reporters & news outlets.
Why are you addressing that comment to me.
Because you made a vague statement. You said "the US has posted photos of POW for decades."
That would be the American media - America's free press as opposed to a government doing it.
Yes, parading prisoners is technically a violation of the Geneva Conventions. We should expect Ukraine to do anything the old Soviet Union did.
Ukrainians are Russian. People are completely ignoring Ukraine's position, role, and importance in the Soviet Union.
Somebody has been saying that since July.
That's a culture war narrative based on ethnicity that ignores the socio-economic relationship between Ukraine and Russia. Yes, ethnic Russians are a minority in Ukraine comprising 17 pct of the population in 2001. So, you win the argument on factoids rather than any understanding of reality.
The 'crisis' between Ukraine and Russia isn't new. What is happening today is a culmination of at least 15 years of disputes between Ukraine and Russia; primarily over Crimea and Russian supplies of natural gas to Ukraine. Everyone could see this coming.
Interesting thought. For augments sake lets assume it is.
Lets do a risk reward analysis:
Reward: You mobilize some Russian mothers to get vocal about what is going on and start taking some action about it. Maybe the Ukrainians learned from US mothers they are not a group to piss off. This could save lives and put more pressure on the Putsie. Assuming the Ukrainians are telling the truth about their health and ability to contact their mothers and no other mistreatment of the POWs is done there is very little downside to the action.
Risk: Nothing of substance will happen to those doing the filming or anyone telling them it is OK to do. Again assuming no other harm comes to the POW's about the worst that will happen is a few people raising their eyebrows and say tsk tsk you bad Ukrainians. And it will be forgotten in a month.
Does not seem like such a difficult choice to me.
While I think some skepticism is always justified in these situations, there does seem to be growing evidence that these Russian troops did not know they would be attacking Ukrainian civilians in this way, and that they feel deceived about their mission.