Defending POWs and civilian prisoners: the role of the Red Cross

Under international humanitarian law the International Committee of the Red Cross should play a key role in defending the rights of prisoners of war and captive civilians. The present Russo-Ukrainian war has shown that it is not meeting certain of its obligations. As a result, thousands have suffered.
Mykhailo Savva, Oleh Martynenko15 September 2023UA DE EN ES FR IT RU

The International Committee of the Red Cross (ICRC) has a special role to play, defending the rights of people in wartime. International humanitarian law, and the Geneva Conventions which form its basis, have awarded the ICRC the status of an independent and neutral organisation. Its purpose is to ensure humanitarian aid to the victims of war and armed conflicts and to defend their rights. A great many of the tasks and duties of the ICRC that are named in the Geneva Conventions concern the rights of prisoners of war (POWs) and the civilian population.

Russia’s full-scale invasion in February 2022 exacerbated many such problems. The invading forces concealed information about POWs and the civilians they had detained in Ukraine; they forbade these people from corresponding with their relatives; they unlawfully detained civilians; those detained or held captive were subjected to torture or inhumane conditions; a lack of appropriate medical care led to the deaths of the sick and wounded in captivity. The Russian authorities have not acknowledged these problems in relation to their treatment of POWs and civilian prisoners. This increases the importance of the ICRC, yet an analysis of its activities since March 2022 reveals its failure to meet certain of its obligations.

Lack of a “protecting power”

First and foremost, no State has yet been appointed to oversee the diplomatic and humanitarian processes involved in enforcing international humanitarian law during the present conflict. It is hard to exaggerate the importance of the “protecting power” which, for instance, could appoint special delegates to defend the interests of Ukraine and Russia. When the parties to a conflict cannot reach agreement on which State can serve as protecting power, the ICRC is allotted special powers. That was the situation in 2022 when Russia refused to accept Ukraine’s suggestion that Switzerland might act as the protecting power: under such circumstances the Red Cross itself is empowered under Article 5 of Additional Protocol One (1977) to act as a substitute and consult the parties to the conflict. However, there is no information that the International Committee of the Red Cross has yet undertaken such activities.

Access to prisoners

A second major problem is closely linked to the first. The ICRC mission does not have access to all Russian places of detention where POWs and civilians are being held. Such access is provided, in our assessment, to only an insignificant number of Ukrainian citizens who are being held in remand centres, prisons and camps in Russia and in occupied Ukrainian territory. The Centre for Civil Liberties estimates that Russian soldiers and special forces have abducted and detained for a lengthy period of time at least two thousand Ukrainian non-combatants: more than 4,700 individuals in this position are named in the T4P database.

Russian officials refuse to supply information about detained Ukrainians, even to close relatives who have provided documentary confirmation of their ties of kinship. ICRC lack of access to all who have been detained and imprisoned means that the Russian authorities can conceal where Ukrainians are being held and treat them as they see fit. The ICRC has confirmed this problem. In a press release issued on 16 October 2022 (“ICRC asks for immediate and unimpeded access to all prisoners of war”) the organisation stated that it had still not received unimpeded access to all prisoners of war despite persistent demands over a period of eight months. As a result of this lack of international oversight Ukrainian POWs are being tortured in captivity, as is confirmed by the regular publication of photographs on Russian social networks of beaten Ukrainian POWs and civilians. The ICRC only gained access to Russian places of detention for the first time in December 2022, which means that the fate of Ukrainian prisoners will depend largely on the expansion of ICRC actions in this field.

Lack of mixed medical commissions

No less important is the lack of mixed medical commissions, as provided for in Annex 2 of the 3rd Geneva Convention on “the treatment of prisoners of war”. These commissions play a central role in the repatriation of POWs when a conflict has not yet ended: it is entrusted with the regular examination of POWs to determine those who are seriously ill or wounded and should be repatriated without delay or transferred to a hospital in a neutral country. The current reality in Ukraine arises not just from the potentially long-drawn-out choice of the commission’s members from independent countries and their alternates but, again, from the lack of a “protecting power”. Meanwhile, the absence of mixed medical commissions has severe consequences for those sick and wounded POWs whom Russia is not willing to release. The result is severe sickness, psychological disorder and even death among Ukrainians held captive in Russia.

Not “internees”

At times the ICRC uses language that treats certain Russian actions as usual and normal when, in fact, they violate international humanitarian law. For example, the ICRC writes of “internment” during the present war when Russia has not observed the established procedure. (Earlier we quoted its 16 October 2022 press release.) The 4th Geneva Convention on “the Protection of Civilian Persons in Time of War” provides for the internment of civilians in particular cases. However, citizens of Ukraine have not been officially interned in Russia. The procedures established by Article 42 of the Convention were not observed, nor have civilians abducted in Ukraine been given the right to appeal against their internment.

Strong and urgent measures are needed to resolve these problems. No political or bureaucratic motive can justify the suffering caused to tens of thousands. Despite all its efforts, the ICRC cannot settle these issues. According to long tradition the ICRC does not act publicly, but this should not deter other organisations, especially human rights bodies, from drawing attention to these painful matters. It is time for rights activists worldwide to consolidate their activities and, working with other global organisations, to make people aware of these issues and help the ICRC to carry out its mission. For its part, the CIRC should engage in a sustained dialogue with the interested parties and be prepared to hear their arguments and provide a public reply.

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