Why should the transfer of Ukrainian prisoners of war to Hungary cause concern?
Hungarian media claimed that Deputy Prime Minister Zsolt Szemien was handling the issue from the Hungarian side. The Ukrainian authorities immediately claimed that the POWs had been transferred without their knowledge. In the following days, the Hungarian government publicly denied its involvement. It announced that the transfer resulted from “discussions between churches and religious organizations without the participation of the Hungarian state.” The Hungarian government also did not make any critical comments concerning the transfer. The Ukrainian authorities managed to bring five of the POWs home. The others still appear to remain in Hungary.
A rather disturbing picture emerges from the conflicting statements and reports on this situation:
- The Russian Federation held 11 Ukrainian service members as prisoners of war;
- At some point, these people ended up in Hungary;
- Since the Ukrainians (a) were transferred to Hungarian territory not individually but as a group and (b) obviously could not leave Russian territory for any country other than Hungary, it seems that they did not come to Hungary by choice but were handed to this State;
- It was done without Ukraine’s consent;
- The Hungarian authorities were at least aware of all the circumstances mentioned above. Still, they deny their involvement in transferring the Ukrainian POWs, do not conduct any investigation of how the transfer took place, and generally don’t see anything unusual in the situation.
All this cannot but raise the question: Was the transfer of Ukrainian POWs to Hungary lawful?
In principle, international humanitarian law (IHL) allows a state holding POWs to transfer them under the authority of another state if these states are allies in the relevant international armed conflict. It follows, particularly, from Article 12(2) of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 (GC III). However, Hungary has never declared its alliance with the Russian Federation in the war against Ukraine, and, as noted above, the Hungarian authorities have been at pains to deny their involvement in the situation of the 11 Ukrainian POWs. Thus, their transfer to Hungary cannot be considered an IHL-authorized transfer of POWs from one allied state to another.
IHL provides for other situations when POWs may leave the state where they are held captive and arrive not in their homeland but in the third state. These include hospitalization in neutral countries of sick and wounded POWs, as well as internment in a neutral country of able-bodied POWs who have undergone a long period of captivity (Art. 109-111 of GC III). Although Hungary has repeatedly declared neutrality in the Russian-Ukrainian armed conflict, there is still no reason to believe that the Ukrainian POWs were transferred to it based on Art. 109 of GC III, since the Hungarian authorities deny the existence of any agreements with the Russian authorities.
International law allows for the transfer of persons from one state to another outside the armed conflict context and beyond the IHL framework. However, the list of such situations is extremely limited and essentially includes only:
- deportation due to the violation by the person of the state of stay legislation;
- extradition of a person to another state that seeks to prosecute the person or execute the punishment previously imposed;
- transportation of accused (convicted) persons through the territory of a particular State to another State;
- transfer of persons serving a sentence in one State to serve their sentence in another State.
All such situations, by definition, imply cooperation between States with the observance of specific international law procedures, which, if we are to believe the Hungarian authorities, was not the case with the Ukrainian POWs. As understood, there was no reason to apply any of the four mechanisms mentioned above in this situation.
Thus, it seems that the transfer of Ukrainian POWs from the Russian Federation to Hungary did not have the proper legal grounds. Although the Hungarian authorities, in all possible ways, dissociate themselves from the involvement in the transfer process, this does not mean that Hungary is not responsible for violating international law in this situation. Under general international law, a State is responsible not only for the conduct of its authorities but also for the conduct of private persons to the extent that the State acknowledges and adopts the conduct in question as its own (see Art. 11 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts). Then, even if a particular group of Hungarian citizens acting privately did manage to organize the transfer of Ukrainian POWs to Hungarian territory contrary to international law, Hungary is still responsible for their conduct because:
- acknowledges that such conduct took place;
- has not condemned or investigated it and generally doesn’t see in it anything improper.
From the human point of view, of course, one cannot but be happy for the Ukrainian military who managed to escape from Russian captivity and for their loved ones. However, the circumstances of this transfer of POWs are extremely outrageous and disturbing. It is not only a violation of international law but a dangerous precedent of turning Ukrainian POWs into a bargaining chip in political and near-political games.