Legal status of a prisoner of war in the international humanitarian law: the experience of the russian-ukrainian war

Abstract

The paper is dedicated to issues on the legal status of a prisoner of war in the International Humanitarian Law on the basis of the analysis of the experience of the Russian-Ukrainian war. There is stressed, the expectations of the world community for the termination of wars in the future turned out to be impossible. The ХХІ century is characterized by the race of high-tech weapons, the expansion of the “nuclear club”, and the significant spread of the ideology of the militarization. It is outlined, steps of Ukraine on the path to the disarmament and abandonment of nuclear weapons became the only exception from the general trend of the last thirty years. Today, the International Law of armed conflicts provides both general and specifical legal protection from consequences of military operations. The captivity can be one of these negative consequences. War prisoners are citizens of the specific state, and volunteers – citizens of foreign state who are covered by international legal provisions on protection of human rights and freedoms during the armed conflict. The war captivity is possible during the international armed conflict only. There is emphasized, the experience of the Russian-Ukrainian war as the first in the postmodern world large-scale conflict demands to review approaches of the International Humanitarian Law to identification of the legal status war prisoners. It is mentioned, there are a lot of aspects of the order of exchange of war prisoners which are not regulated by the Humanitarian Law. There is specified, states that have taken war prisoners, are obligated to return (the practice of individual or group exchange) or to repatriate war prisoners. At the same time, the parties of the armed conflict should provide appropriative and transparent conditions of the repatriation and maintenance of war prisoners. There is outlined, that the unique case of five Ukrainian commanders who managed the defense of the “Azovstal”, is a specific case. As a result of their exchange, militaries have to be on the territory of the third state under the personal guarantees of its’ governors for the indefinite period. The mentioned case implements the new practice of use of principles of the International Humanitarian Law. Formally, the analysis of provisions of sources of the Humanitarian Law allows to confirm that commanders of battalions, who were prisoned on the area of the warring state and removed to the third neutral state later, continue to be in the status of war prisoners.