About the POW status for Ukrainian navy men

About the POW status for Ukrainian navy men

The Kremlin, through the mouth of clown from the Russian FSB, said that Ukrainian navy men, which were captured at 25th of November of this year near the Kerch Strait, "cannot be considered as prisoners of war, because the Russian Federation and Ukraine are not in a state of military conflict or war".

The first and most important, concerning the position of the Kremlin as "I am not me, and the horse is not mine» that is non-recognition of its aggression against Ukraine. The Geneva Conventions say that “in the case of declared war or any other armed conflict” between countries, the Conventions are in force, “even if one of them does not recognize the state of war” (Article 2 of II and IV Geneva Conventions). And the Kremlin knows about it

Now let's start from the beginning.

So, on March 18, 2014, Moscow announced “the integration of the Crimea and Sevastopol into the Russian Federation”. Ostensibly - on the basis of a "referendum" in the Crimea. However, the “referendum”, as is known, were declared invalid by an absolute majority of the countries members of the UN General Assembly (only a miserable handful of Russian satellites and rogue states recognized it). It means that the “integration of the Crimea” was conducted with gross violations of international law by the Russian Federation.

Moreover, the Russian military personnel were used to establish control over the territory, including the Ukrainian military and government buildings, ports, and sea space. This is the “armed conflict”, the fact of which is denied by Moscow.

This is confirmed by the current report of the Office of the Prosecutor of the International Criminal Court (ICC), which states: this conflict is classified as an international armed conflict between Ukraine and the Russian Federation, which arose no later than February 26, 2014. According to the assessment of the Office of the Prosecutor, the law of international armed conflicts still applies to the situation in Crimea after March 18, 2014, because the state of occupation in fact remains in Crimea and Sevastopol.

At the same time, the establishment of the fact of the “legality” of the initial intervention, which led to the occupation, is not required. An international conflict is recognized, if one or more states partially or fully occupy the territory of another state, regardless of whether the occupation is accompanied by open use of their armed forces or not.

So, the ICC states: since 2014, there has been an armed conflict between Russia and Ukraine, which began with the Russian occupation. The Prosecutor’s Office of Crimea clarifies: “according to the given assessment, the law of international armed conflicts (international humanitarian law) continues to apply to this situation, including the status of prisoners of war.

At the same time with the events in the Crimea, the situation in the east of Ukraine turned into a conflict, accompanied by the deployment of units of the RF Armed Forces into the territory of Donbas and shelling of Ukrainian units from the territory of Russia. On July 17, 2014, an MH-17 aircraft was shot down over the territory of Ukraine. The investigation, initiated by an agreement between Ukraine, Malaysia, the Netherlands and other countries, established that the plane was shot down by Russian air defense system from one of the Russian units from the territory controlled by anti-government armed groups, which are under control of the RF.

Over the following years, clashes of varying degrees of tension between the anti-government forces supported by the Russian Federation, with the participation of units of the regular armed forces of Russia, and the armed forces of Ukraine continued in the territory of Eastern Ukraine.

At the same time, Ukraine used the “right of retreat”: according to Article 4 of the International Covenant on Civil and Political Rights, the participating States have the right to withdraw from the provisions of the Covenant subject to prior official announcement of the existence of a state of emergency associated with the threat to the life of the nation. The message of Ukraine about the retreat was that "the continuing armed aggression of the Russian Federation against Ukraine ... war crimes and crimes against humanity" are a state of emergency in which the nation is under threat in the definition of paragraph 1 of Article 4 of the ICCPR.

In early 2018, Ukraine adopted a law “On the peculiarities of state policy to ensure the state sovereignty of Ukraine over the temporarily occupied territories in the Donetsk and Lugansk regions”, by which Russia is defined as the aggressor, and the fact of the Russian occupation of part of Donbas was stated.

Thus, according to international definition, and national legislation, the situation in the annexed Crimea and eastern Ukraine is equivalent to an armed conflict between the Russian Federation and Ukraine.

Dmitry Tymchuk, IR coordinator