Already an IBA member? Sign in for a better website experience
The IBA’s response to the war in Ukraine
Given the amount of Russian disinformation, Ukraine President Volodymyr Zelensky’s ability to use the media to galvanise the international community has been a key feature of the conflict. But, as the Geneva Conventions make clear, there are limits.
Presenting prisoners of war (POWs) as evidence of victories or aggression has long been a feature of warfare. The war in Ukraine is no exception, with videos of Russian POWs beginning to appear soon after fighting commenced. Some prisoners weep as they phone their families in Russia. Some denounce the Kremlin’s myth that the war in Ukraine is a ‘military operation’ to free civilians from neo-Nazis. Others discourage fellow Russians from joining the fight.
The war in Ukraine is being fought in an information-rich environment. Never before has a country’s wartime leader used social media to such dramatic effect as President Zelensky to boost the morale of Ukrainians and galvanise international support. Yet Zelensky wants his pro-democracy, anti-war message to reach Russians as well, and who better to deliver it than Russian soldiers themselves, fresh from the horrors of battle?
But do such videos breach the Geneva Conventions? Do they expose POWs to humiliation and ‘public curiosity’? Should POWs be prevented from appearing even if they wish to speak out or might there be a greater public interest served in allowing their broadcasts? This is a contentious issue. On 4 March, the International Committee of the Red Cross (ICRC) published a tweet which, although not mentioning the Ukrainian authorities specifically, seemed to have been prompted by the release of videos of Russian POWs. And, more recently, Russian media has released film and statements by two Britons captured while fighting with the Ukrainian army.
Article 13 of the Third Geneva Convention of 1949 aims to protect POWs, stating that ‘prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity’. However, Article 13 does not per se ban the publication of images of POWs, thus the war in Ukraine is now providing a unique test of its relevance and application.
Russia is facing unparalleled global sanctions in response to Putin’s unprovoked attack on Ukraine. The continuing Russian disinformation campaign of baseless allegations and absurd complaints to justify its aggression is well known. In such a context, is it not reasonable to counter lies with facts, especially facts presented by Russians soldiers themselves? Could not such first-hand accounts help inform a Russian population increasingly starved of the truth by an authoritarian regime, and so perhaps ultimately hasten an end to the conflict?
On that point Professor Charles Dunlap, Executive Director of the Center on Law, Ethics and National Security at Duke University, North Carolina, cautions that although ‘there are obvious benefits to using POWs in a way that undermines the morale of both the military force and civilian population of the adversary […] in my view that is the kind of activity the Third Convention is meant to preclude’.
Professor Charles Dunlap
Executive Director, Center on Law, Ethics and National Security, Duke University
The ICRC and human rights organisations have argued persuasively that it is never possible to know if a POW is acting under duress, given the vulnerability of their situation as captives of an enemy power. It is indeed bound to be difficult to assess whether pressure may have been applied to POWs. However, given the diversity of ways in which POW images can be presented, is it necessarily impossible to make a reasonable assessment on a case-by-case basis? And should a degree of uncertainty be enough to ban the images in all circumstances – especially if there are no obvious signs of compulsion, ill-treatment or ‘staging’?
The ICRC’s own 2020 commentary on Article 13 of the Convention accepts that it may be necessary to ‘strike a reasonable balance in the implementation of this provision’, particularly where there is a ‘compelling public interest’ in publishing images. The exceptions given in the ICRC commentary of situations when images could be published (even if revealing the identity of a POW) do not replicate the circumstances surrounding Ukraine’s publication of Russian POW videos, but they do suggest that the application of this provision is not the black and white issue some people or organisations may think.
By using Twitter to raise Article 13, the ICRC pushed the issue of POWs into the social media spotlight, eventually resulting in a Twitter ban of POW images, except in certain situations. But the problems of interpreting the Convention in all circumstances persist. A social media company cannot be expected to produce a definitive assessment on the use of POW images when such a task has long been a challenge even for acknowledged legal experts.
In 1991, Michael Meyer, Head of International Law at the British Red Cross, published an article attempting to weigh possible factors in publishing images, such as the consequences for the prisoner or his family, the intention behind the filming or whether the event was staged. Meyer concluded:
‘The fact that it is not possible to say with any degree of certainty which, if any, of these considerations is relevant or decisive when considering a possible breach of Article 13 demonstrates the unsatisfactory state of international humanitarian law on this subject. Laws whose true meaning is unclear are generally not good laws.’
So, we are left with an ambiguous legal provision of the Geneva Conventions conceived shortly after the Second World War – well before the advent of video cameras, let alone the near-ubiquitous smartphone – whose aim was to prevent practices, such as parading prisoners through hostile crowds. With current technology and attitudes to information, the problem has compounded.
Nevertheless, in the case of the Russian POWs held by Ukraine, it could be argued that there is an identifiable public interest in publishing such videos when they vindicate the international community’s condemnation of Russian aggression. Against that, some might counter that the ever-present risk of pressure being exerted on prisoners remains, particularly given their value as bargaining chips, which is how Russia seems to view the British POWs. Overarching all is the responsibility not to dilute the protection of POWs in general, though, as Dunlap reminds us, ‘even where the use of videos and other images breaches the Geneva Convention, it does not fall into the more serious category of a “grave” breach, such as intentionally targeting civilians’.
Meyer regretted that Article 13 was not re-drafted when the Geneva Conventions were last updated by the 1977 Protocols. Since then, the need for revision has surely grown and, with the advent of the war in Ukraine, seems ever more urgent.
Anne McMillan is a freelance journalist and can be contacted at email@example.com
Image credit: REUTERS/Valentyn Ogirenko