Sailors captured by Russia are POWs, Russia violates Geneva Convention, say Ukrainian officials, lawyers

The 24 sailors Russia has seized and taken captive after a Russian attack on three Ukrainian Navy boats in the Azov Sea are prisoners of war, Ukrainian officials have said. This means that their arrest by Russia until 25 January 2019, and transfer to a Moscow remand prison violates international law. Following the attack, President Petro Poroshenko, Foreign Minister Pavlo Klimkin, and Justice Minister Pavlo Petrenko have stated that the sailors, whom border guards from the Russian FSB captured after attacking the Ukrainian ships near the Kerch Strait are prisoners of war (POW), which is why they cannot be judged by Russian legislature. On November 29, according to deputy Justice minister Ivan Lishchyna, Ukraine submitted an application to the European Court of Human Rights (ECHR), in which it claimed that Russia's actions contradict the norms of humanitarian law, which regulates the treatment of POWs, which leads to the violation of articles 2, 3, and 5 of the European Convention on Human Rights, and requested that the ECHR oblige Russia to provide exhaustive information about the health and imprisonment of the sailors, to provide them medical care, to return the wounded sailors to Ukraine as soon as their state of health allows it, and to return the others, and until that happens, detain them under conditions which comply with the rules of humanitarian law, which first of all means releasing them from the remand prison where they are currently kept. The health-related questions are especially pressing, as three of them are in the hospital, and information on their injuries in the Ukrainian ship being shelled and assault by Russian special forces officers is contradictory: Russia has confirmed that three are wounded, while according to Ukrainian information six are. The ECHR answered by requesting Russia answer on what grounds it is imprisoning the sailors and provide information about their health, and having not received an answer by the deadline, on 4 December, obliged Russia to provide adequate medical treatment, Lishchyna informed. At publishing date, Russia had still not provided the requested information. Russia accuses them of unlawfully crossing the Russian border, referring to the territorial waters of occupied Crimea, which Russia occupied in 2014. The attack and capture took place while the ships were in transit to a Ukrainian port in the Azov Sea through the Kerch Strait. The Ukrainian military has said that Ukraine was acting in accordance with international maritime law and the 2003 bilateral Russia-Ukraine Treaty on collaboration in using the Azov Sea and Kerch Strait, according to which the sea bodies are internal waters of both countries. In videos that the FSB filmed and broadcast immediately after capturing the sailors, three of them are seen “confessing” to have trespassed “Russian territorial waters." The Ukrainian Navy and human rights activists were convinced that the sailors were forced to these "confessions."

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Why does Ukraine consider the sailors as POWs and what does this status mean? We tried to understand with the help of the Ukrainian Legal Advisory Group's commentaries (1, 2). When the Russian FSB confirmed that it had taken the 24 sailors captive and acknowledged it had wounded three of them on 25 November, Ukraine took this as an act of aggression and imposed martial law in nearly half of the country. According to the general principles of international humanitarian law, its standards apply to all situations of armed conflicts, even if one side does not recognize it. Having applied martial law within the country in response to Russian actions, Ukraine shows it perceives the situation in the Azov Sea as an armed conflict. This is why the Geneva Conventions of 1949 will apply to these events. Apart from that, the case Hassan vs. the United Kingdom (#29750/09), the ECHR indicated that both international humanitarian law and international human rights law should be taken into account, as well as that international agreements in the sphere of human rights are applicable to actions undertaken by the state in exercising its jurisdiction outside of its own territory, particularly on occupied territories. This means that according to the Geneva convention of 1949, the detained Ukrainian sailors are POWs: they belong to the Ukrainian Armed Forces and were captured by the enemy during a direct armed confrontation. This is why standards recognized by international humanitarian law regarding conditions of detainment and humane treatment, provision of qualified medical assistance should be applied to them. Article 5 of the European Convention on Human Rights allows taking POWs only as part of an international armed conflict. From the viewpoint of human rights, the taking of POWs could be considered lawful only if it is made as part of international humanitarian law and if the imprisonment doesn't violate the conditions of said law. As POWs, according to international humanitarian law and international law on human rights, they are entitled to protection from prosecution. According to Art.85 of the Geneva Convention, POWs persecuted in accordance with the law of the detaining state for acts committed by them before captivity, enjoy, even in the case of conviction, the benefits of the Convention. This includes a requirement for servicemen to be put on trial in a military court, and that a "competent organ" provide the necessary guarantees of impartiality and a fair procedure to protect from violations. Moreover, as Crimea is under occupation by Russia, according to international humanitarian law, the occupation authorities need to respect and implement the laws of the occupied country. Thus, a trial held in Russia under Russian law, violates the norms of international law. Therefore, in capturing the Ukrainian Navy sailors and preparing to put them on trial, Russia has violated both international humanitarian law and international human rights law, sums up the Ukrainian Legal Advisory Group.  

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