Videos circulating on social media of captured Russian soldiers calling their families and denouncing the invasion of Ukraine may be contributing to the violation of international law about how prisoners of war should be treated.
"You may not publish pictures of prisoners of war where they can be recognized," said Marco Sassoli, a professor of international law at the University of Geneva and a special advisor on international humanitarian law to the prosecutor of the International Criminal Court. "And obviously [in these cases], they can be recognized."
Sassoli said since the videos of soldiers don't appear to humiliate the soldiers, they should not be considered "war crimes," like, for example, the pictures of the abuse of Iraqi soldiers at Abu Ghraib prison in 2004.
Still, he said the pictures of captured Russian soldiers are clearly a violation of international humanitarian law.
The violation is committed by the state where this happens, meaning that Ukraine has the responsibility to protect the prisoners of war and not expose them to what's known as public curiosity.
People sharing such images on the internet or any media outlet that publishes such pictures "shouldn't contribute to violations of international humanitarian law, but rather contribute to its respect," Sassoli said.
Guarding against 'public curiosity'
One such video, which runs about 10 minutes and has racked up more than 12 million views, shows what appears to be a captured Russian soldier speaking, of his own volition, about the disinformation he said he was fed about Ukraine.
"I feel shame that we came to this country, to this territory, Ukraine's territory," he said.
Other videos circulating show captured Russian soldiers who appear to be treated humanely, calling home to their families in Russia.
However, the third Geneva Convention, which applies to prisoners of war, states that "prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."
According to the International Committee of the Red Cross (ICRC), public curiosity would include publishing pictures of prisoners of war.
"Such disclosure could still be humiliating and jeopardize the safety of prisoners, families and other prisoners themselves once they're released," the ICRC states.
Prisoners of war and detainees.<br><br>The law states they must be protected. This includes from acts of violence, intimidation, and ill-treatment. <br><br>They also must be treated with dignity, and not exposed to public curiosity – like circulating images on social media.
In the wake of the Russia-Ukraine conflict, the organization tweeted that prisoners of war "must be treated with dignity, and not exposed to public curiosity — like circulating images on social media."
Caitlin Kelly, a spokesperson for the ICRC, said in an email that when the language of the Geneva Convention laws were originally written, public curiosity could have related to the sharing of images of POWs via TV footage or black and white photographs.
"Today, it can mean an individual live streaming from his personal phone to millions of viewers. The fact that Twitter, Facebook and TikTok did not exist when the Geneva Conventions were created in 1949 does not change the original meaning and intent to protect POWs against public curiosity," she said. "International humanitarian law does not make any distinction as to the communication channel used."
Gary Solis, a former adjunct professor at Georgetown University Law Center in Washington, D.C., who was a contributing writer to the ICRC's Commentaries to the Geneva Convention, believes the ICRC may go too far in its prohibition of POW pictures.
"The ICRC takes a very broad view of what constitutes humiliation — which is prohibited — and reasonably so," he said. "But the ICRC, in my view, goes a bit beyond common sense when they say no pictures. And they take such a broad definition of humiliating pictures."
Solis said, "If I'm captured, I want the whole world to know I'm there … so people will know that I'm alive. And if I should suddenly turn up dead, they'll know that there's something bad going on."
Designed to be 'overprotective'
John Cerone, a visiting professor of international law at Tufts University in Massachusetts, agreed that taking those videos is a violation of international law. But it's not what would be considered a "paradigm violation" — for example, parading prisoners through the streets to be taunted and ridiculed.
Yet he said that even if the individuals weren't being coerced, the pictures and videos of Russian soldiers would still be a violation of the Geneva Convention laws, which "are designed to be overprotective." This means that in almost all cases, it doesn't matter if the captured soldier is making such comments voluntarily, he said.
The Geneva Conventions "recognize this inherently coercive atmosphere," he said.
The problem, Cerone said, is that there is no way to be "100 per cent sure" that a captured soldier appearing on a video is making comments of their own free will.
Such a situation creates pressures on POWs to do things they would not necessarily do otherwise, he said.
"They can expose themselves to harms … in the case of Russian soldiers denouncing the war, obviously they're potentially exposing themselves to harm if they are returned to Russia."
However, penalizing the sharing of such images shouldn't be a primary concern in this situation, he said.
"We're talking about a ranking of gravity of violations of the law of armed conflict. It's a much longer list with a lot more important stuff higher up on the list," he said.
Technically speaking, he said Ukraine is the principal duty bearer in this context and as a party to the Geneva Convention treaties, it has an obligation to respect the rules and the treaties and to take steps to make sure others — for example, private parties — are complying with their obligations by not circulating these images.
"If it's a state actor, it's a clear breach by Ukraine. If it's a private party, we have to look and see to what extent is the Ukrainian government discouraging this, taking steps to try and prevent it from happening," Cerone said.
If a private person is publishing such videos, "that in and of itself would not be regarded as a violation of the Geneva Convention."
Yet Cerone agreed it would certainly be violating the spirit of the international law.
ABOUT THE AUTHOR
Mark Gollom is a Toronto-based reporter with CBC News. He covers Canadian and U.S. politics and current affairs.
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