Abducting Dissent: Kidnapping Public Officials in Occupied Ukraine

In the last two weeks, it has been reported that Russian occupying forces have abducted up to three Ukrainian mayors with new mayors installed in their place. On Friday 11 March, it was reported that Russian soldiers occupying the city of Melitopol had taken the mayor. According to Ukraine’s parliament, the reason for the abduction was that he had refused “to cooperate with the enemy.” On Sunday 13 March, it was reported that the mayor of the Ukrainian town of Dniprorudne had been abducted after the town was invaded by Russian forces.

The President of the European Council, Charles Michel, immediately condemned in the strongest terms the two abductions, calling them “kidnappings.” On 16 March, it was reported that the mayor of Skadovsk and his deputy had been abducted. On the same date, it was reported that Ukrainian forces had managed get the Melitopol mayor released, and a top Ukrainian official said that he would return to work soon. The mayor of Skadovsk has now issued a video message indicating that he has been released.

This spate of mayoral abductions raises questions about the status of public officials in Ukraine, how they are protected, and their ability to refuse to cooperate with Russian authorities on grounds of public conscience. They also raise questions about the authority of the Russian forces to dismiss public officials and replace them with individuals more allied to their cause. This post analyzes these questions with reference to international humanitarian law (IHL) although there may also be applicable human rights law norms.

IHL Prohibits Hostage Taking

The abduction of mayors or other public officials by the Russian Federation is clearly contrary to IHL. There is no suggestion that the individuals have been interned or placed in assigned residence according to any regular procedure in accordance with Geneva Convention IV (GC IV). Instead, news stories indicate that Russian forces abducted the officials and held in them undisclosed locations.

Article 34 of GC IV prohibits the taking of hostages which is defined broadly in Jean Pictet’s 1958 Commentary as “taking hostages as a means of intimidating the population in order to weaken its spirit of resistance and to prevent breaches of the law and sabotage in order to secure the security of the Detaining Power.” Pictet’s Commentary states that the most common type of hostage taking involves prominent persons taken hostage to prevent disorder. Article 75 of Additional Protocol I also prohibits hostage taking.

It may be noted that the definition of hostage taking in the 1958 Commentary to Article 34 of GC IV is much wider than the definition given in the International Committee of the Red Cross (ICRC) 2020 Commentary to common Article 3, which also contains a prohibition of taking hostages. It also seems a bit broader than the definition offered by the Commentary to Article 75 of Additional Protocol I. Both these later commentaries emphasize the idea that hostage taking must be intended to “compel a third party to do or abstain from doing ‘any act.’” This element is not explicitly spelled out in the 1958 Commentary to Article 34 but is implied by the examples given.

On the basis that the abduction of the Ukrainian mayors has been apparently carried out instrumentally to achieve goals specifically mentioned in the 1958 Commentary—i.e., to weaken the spirit of resistance in the towns from which they come and to ensure the security of the invading force—it seems likely that these acts of abduction constitute “hostage taking.” It is noteworthy that hostage taking constitutes a grave breach of GC IV and a war crime under the Rome Statute of the International Criminal Court. The abduction of public officials may also constitute the crime of “unlawful confinement” which is a grave breach of GCIV and a war crime under the Rome Statute.

Public Officials May Not Be Subject to Sanctions, Coercion, or Discrimination

There has been some discussion on this blog and other blogs about whether Section III of GC IV, which applies to occupied territories, currently applies in Ukraine or parts of it (see Peijic and Favuzza for analysis). Relying on Benvenisti’s writing, Favuzza has shown that there are good arguments to be made that the areas under control of the Russian forces in Ukraine can be considered as occupied territories. When this position is accepted, the abductions of public officials from cities and towns which are now under the effective control of Russian forces in Ukraine – such Dniprorudne, Melitopol and Skadovsk – are violations of Article 54 of GC IV.

The rules set out in Section III of GC IV, when taken together with the 1907 Hague IV Regulations (particularly Article 43), are designed to recognize that any state of occupation will be temporary. They are also intended to prevent an occupying force from taking any steps that would have the effect of integrating the occupied territory into its own territory on a more permanent basis by transferring its own population into the area, changing the laws in force in the country without justifications, or interfering with the functioning of criminal courts and tribunals (see Sassoli, Bothe, and Fleck). The provisions are designed to attend to the interests of the territorial State, the Occupying Power, and the civilian population (Benvenisti, para. 69). Scholars writing on the occupation framework have often noted that reconciling the interests of this triangle of actors is no mean feat, as they will very often be opposed.

One of the rules that plays a role in attending to these different interests is Article 54 of GC IV on judges and public officials. Article 54 states, “The Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should they abstain from fulfilling their functions for reasons of conscience.” While neither Article 54 nor these earlier documents refers to “mayors,” there seems little doubt that the term “public officials” in Article 54 would include mayors (see Fleck, p316 and Commentary, GC IV, p. 306). Read on its face, it would seem that Article 54 prohibits exactly the sort of coercive actions taken by Russian forces, when kidnapping the mayors of cities under occupation who refuse to cooperate.

Although Article 54 is not found in the 1907 Hague IV Regulations, it is not a “new rule” of IHL. A similar rule protecting public officials was included in documents predating the Hague Regulations such as the 1874 Brussels Convention and the Oxford Manual on the Laws of War on Land 1880. These earlier documents did not so explicitly protect public officials. In fact, by indicating that public officials could not be punished unless they failed to carry out their functions, they essentially made it possible for public officials to be punished if they failed to carry out their functions. In that sense, Article 54 of GC IV provides much wider protection to public officials, because it protects public officials’ right to abstain from fulfilling their functions for reasons of conscience without being punished. In reality, it constitutes a right to resign.

Occupying Power Can Remove Public Officials

The fact that public officials cannot be subject to coercion or sanctions if they refuse to cooperate, does not mean that they can insist that they remain in place. Indeed, Article 54 explicitly allows Occupying Powers to “remove public officials from their posts.” This exception is noted by the Commentary to be a “right of very long standing” and is found in the earlier documents stated above (i.e. the Brussels Declaration and Oxford Manual). The Commentary to Article 54 does not provide guidance on the situations in which the right of removal can be exercised except to say that the occupation authorities may exercise it, “for reasons of their own.” It also seems to indicate that an Occupying Power could use this right in circumstances where a public official is using their authority, “in a manner detrimental to the Occupying Power.” However, any changes that an Occupying Power makes in this regard must be guided by Article 47 of GC IV which indicates that any change introduced into the institutions or government of the territory as a result of its occupation must not deprive the persons living in that territory of their benefits under the Convention.

Occupying Power Can Compel Public Officials to Work

While the abducted mayors in Ukraine seem to want to keep working, it is also relevant to consider what should happen if public officials refuse to work. Article 51 of GC IV sets out the circumstances in which an Occupying Power can compel individuals to work in occupied territory. The most well-known rule is that the Occupying Power may not compel protected persons to take part in any of its military operations.

Article 51 also confirms that an Occupying Power may compel individuals over 18 years old to carry out work “necessary either for the needs of the army of occupation, or for the public utility services, for the feeding, sheltering, clothing, transportation or health of the population of the occupied territory.” Referring to Article 51, the Commentary to Article 54 acknowledges that there is a tension between Article 54 on the one hand (which seemingly allows public officials to decide not to work) and Article 51 on the other (which permits Occupying Powers to compel public officials to work). The Commentary asks which rule should take priority. Can Occupying Powers require the public officials mentioned in Article 54 to remain in their posts even when they have exercised their right to resign?

In an attempt to answer these questions, the Commentary indicates that if refusal to work leads to the paralysis of “the whole judicial and administrative machinery … protected persons would be the first to suffer.” It recalls that Article 51 primarily refers to individuals working in public utility services whose services are essential to the civilian population (e.g. provision of water, gas, transport, health services etc …). Article 51 also mentions several other services that are equally essential (i.e. relating to the feeding, sheltering, clothing, transportation or health of the population). Because the purpose of the article is to meet the interests of the population, the Commentary suggests that the Occupying Power would be reasonably justified in refusing the resignation of public officials, despite Article 54. However, it acknowledges that there are a whole host of further individuals who are not named in Article 51 who also play an “essential role in the life of the public, for example, of local, district and provincial officials, of mayors, of officials in the registry of births, deaths and marriages, of police officers, prison staff and social welfare officers … judges and members of the judiciary.”

Unable to satisfactorily reconcile this conflict of legal norms, the Commentary takes a different approach to the debate, stating, “it is therefore agreed that it is [these individuals’] moral duty to remain in their posts in the interests of their fellow citizens; such a requirement is all the more justified as the non-political nature of their duties is generally such as to remove any conscientious scruples that they have” (ICRC Commentary, p. 306). It is unclear how a modern commentary of Article 51 would approach this issue. Certainly, the ICRC today is not in the habit of setting out its view on individuals’ moral duties.

Conclusions

In sum, this post indicates that the law of occupation does not prohibit the removal of public officials, including mayors, if they are exercising their authority in a manner detrimental to the Occupying Power. However, IHL certainly does prohibit the abduction of public officials, either as a means to intimidate a civilian population or weaken their spirit of resistance or as a means of punishing a public official for their refusal to cooperate with the Occupying Power on the grounds of conscience.

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Katharine Fortin is Associate Professor at the Netherlands Institute of Human Rights, Utrecht University and a researcher at the Montaigne Centre for the Rule of Law and Administration of Justice. The author is grateful for the comments received from Alessandra Spadaro on an earlier draft.

Photo credit: Ministry of Defence of the Russian Federation via Wikimedia Commons