International Standards for Treatment of Prisoners of War and the Conflict in Ukraine

Matters related to the legal aspects of conducting various types of armed conflicts, including the rules setting out standards for the treatment of prisoners of warare regulated primarily by international humanitarian law (IHL). Under IHL, the protection of a prisoner of war begins when the combatant "falls into the hands of an adverse party. In the same vein, when an adversary who has laid down his arms or, having no means of defence, surrenders or is otherwise unable to fight or defend himself, he may not be made the object of attack – he is now a prisoner of war". 

International humanitarian law is part of public international law, which has certain consequences as regards the acceptance of applicability of its provisions and their interpretations. It is no coincidence that humanitarian law applies to armed conflicts, not just wars. Armed conflict is a broader concept. To evade the applicability of the norms set out in IHL it is not enough to use, as the Russian Federation did after the full-scale attack on Ukraine on 24 February 2022, a (only semi-) formal ploy of no declaration of war but merely engagement in (some) "special military operation". A "special operation" like this is also an armed conflict, since "an armed conflict exists whenever there is a resort to armed force between States".  Under the four Geneva Conventions, including the Geneva Convention III relative to the Treatment of Prisoners of War, their provisions apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. 

As regards the Geneva Conventions, one should note at this point that their very nature – especially Convention III – dictates that they apply throughout the entire territory of the parties to the conflict.  In relation to prisoners of war, it is therefore irrelevant where exactly they are arrested, detained, or where crimes or other unlawful acts or omissions are committed against them. 

Under the Geneva Convention relative to the Treatment of Prisoners of War, persons entitled to prisoner of war status are:

1. members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces;

2. members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

a) that of being commanded by a person responsible for his subordinates;

b) that of having a fixed distinctive sign recognizable at a distance;

c) that of carrying arms openly;

d) that of conducting their operations in accordance with the laws and customs of war;

3. members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power;

4. persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model;

5. members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law;

6. inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war (Article 4). 

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It is absolutely imperative to keep in mind that regardless of the status granted to individual participants in events, circumstances or situations regulated by the provisions of IHL – regardless of whether they participate voluntarily or not – in each case they are invariably human beings, and therefore they are entitled to universally applicable human rights under general principles.

"International human rights law and international humanitarian law share the goal of preserving the dignity and humanity of all. Over the years, the General Assembly, the Commission on Human Rights and, more recently, the Human Rights Council have considered that, in armed conflict, parties to the conflict have legally binding obligations concerning the rights of persons affected by the conflict. Although different in scope, international human rights law and international humanitarian law offer a series of protections to persons in armed conflict, whether civilians, persons who are no longer participating directly in hostilities or active participants in the conflict. Indeed, as has been recognized, inter alia, by international and regional courts, as well as by United Nations organs, treaty bodies and human rights special procedures, both bodies of law apply to situations of armed conflict and provide complementary and mutually reinforcing protection". 

Noteworthy, another area of public international law, that is, international criminal law, is closely related to IHL.  This observation is particularly important in view of the treatment of Ukrainian prisoners of war by the armed forces and the broadly-understood administration of the Russian Federation.

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