Ukraine Symposium – Legal Reflections on the Russia-Ukraine Prisoner Exchange

In early January, Russia and Ukraine announced the largest prisoner exchange since the beginning of Russia’s full-scale invasion in February 2022. Mediated by the United Arab Emirates, the exchange reportedly included the release of 248 Russian military personnel by Kyiv and 230 “people”—including 224 soldiers and six civilians—who had been held by Russian forces.

The question of prisoners of war (POWs) and their release in the Russia-Ukraine conflict has already been discussed on Articles of War here and here. In this post, I would like to additionally reflect on two matters that come to mind in light of the recent exchange, namely, the legal implications of an exchange of POWs under international humanitarian law (IHL) and how such practice relates to the prohibition of hostage-taking.

IHL and Exchanges of POWs

Article 4 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War (GC III) foresees that a diverse range of combatants who have fallen into the power of the enemy are to be considered POWs. The treaty provides a detailed regime governing their treatment, status, and privileges and explicitly authorises their detention or internment (art. 21). Although controversies have arisen in the past, the International Committee of the Red Cross (ICRC) maintains that the only grounds for excluding persons coming within the scope of Article 4 from POW status is the failure to individually distinguish themselves from the civilian population (see discussion in the ICRC’s 2020 Commentary, especially para. 1039). Some enemy combatants who are excluded from the protection of GC III will nevertheless be protected by the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV) as civilians, in line with the ICRC’s reading of Article 4 of that treaty.

GC III also regulates the release and repatriation of POWs. In principle, POWs may be held (and interned) until the cessation of active hostilities, when they must be released and repatriated without delay (art. 118). Until then, the detaining power is authorised to withhold the release of POWs at its discretion, except in relation to seriously wounded or sick POWs who shall be directly repatriated or accommodated in a neutral State in accordance with Articles 109 and 110. The framework of POW internment is based on the presumption that enemy combatants constitute a security threat per se, which cannot stand for individuals in a very poor state of health.

Although GC III does not otherwise require the release of POWs prior to the end of active hostilities, it also does not prohibit it. And while prisoner exchange is not explicitly regulated by the IHL treaties, it is a common occurrence in armed conflict. Article 109 of GC III specifically provides that belligerent parties may “conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity.” The updated ICRC Commentary recognises that the provision does not entail an obligation for belligerent parties, but rather serves to embody “the balance that Parties to a conflict need to seek between military necessity and humanity in their decision to intern prisoners of war.”

This balance—whether construed in legal or ethical terms—naturally shifts in favour of the internee’s welfare with the passage of time, becoming particularly pressing after one has spent several years in internment, as was common during the Second World War and several subsequent conflicts. Evidently, however, if the belligerent parties wish to release “able-bodied” POWs even very soon after capturing them, there is nothing to prevent them from doing so, and the same must be true of a concurrent bilateral release and repatriation of prisoners resembling an exchange. Although the ICRC is reticent to condone prisoner exchange as a form of “human trade,” it acknowledges the practice as lawful, and so do several national manuals, including the U.S. Department of Defense Law of War Manual, which regards it as a “convenience” for the belligerents.

Ergo, the recent prisoner swap between Moscow and Kyiv—one of many to take place so far—must in principle be regarded as a lawful and normal practice in an international armed conflict, although there remain a few caveats. First, the principle of non-refoulement takes precedence over the obligation to repatriate POWs, rendering repatriation impossible if a prisoner faces a risk of ill-treatment upon return. Second, the exchange must take place under safe and humane conditions as foreseen by Article 119. Third, the belligerent parties must consider their obligations to prosecute and punish perpetrators of grave breaches of the Geneva Conventions and Additional Protocol I, in line with the “grave breaches” clauses (a good overview may be found here). In principle, this means that POWs suspected of war crimes and whom the detaining power is capable of prosecuting could only be released and repatriated if the other belligerent party commits to putting them to trial. Fourth, POWs whom a belligerent party is already obliged to repatriate or re-accommodate—such as the ones covered by Articles 109 (1) and 110—cannot be subjected to an exchange, at least not insofar as this unjustifiably delays the implementation of obligations under those provisions.

Active Service after Repatriation

Bearing in mind the personnel shortages that both Russia and Ukraine have reportedly faced in recent months, they may be inclined to eventually return their released soldiers to active service in the war. It is also conceivable that some of the released military personnel may wish to resume active service of their own volition. This raises the relevance of Article 117 of GC III, which foresees that “[n]o repatriated person may be employed on active military service,” to POW repatriations taking place outside the context of Articles 109 and 110.

The provision is located in the section dealing with cases of release and repatriation during active hostilities mandated or encouraged by the Convention, namely, the regime of Articles 109 and 110. This framework would be seriously undermined if the detaining power could expect to encounter on the battlefield prisoners it had already detained and released. Falk argued that “if such a restriction is applicable to sick or wounded men repatriated to a neutral country, then it is even more strongly relevant to repatriations that send healthy combat personnel back to a belligerent power while the war continues.”

It is true that States have generally been inclined to follow this reasoning in practice (in the example given by Falk, the United States agreed not to have its pilots released by North Vietnam return to active service in the Vietnam War), however this does not appear to be motivated by legal concerns. The ICRC Commentary observes,

the placement of Article 117 in this specific section of the Convention indicates that it is only applicable to repatriations that take place pursuant to the articles in that section . . . . [O]nly ‘able-bodied’ prisoners of war who have undergone a long period of captivity and are repatriated pursuant to an agreement based on Article 109(2) are covered by Article 117.

To this one might add—if a bit more cynically—the motivation of a belligerent party to secure the release of its own able-bodied service members to re-deploy them in the context of the same armed conflict. In my view, therefore, Article 117 does not prevent either Russia or Ukraine from employing the released prisoners on active military service in the ongoing conflict, unless their repatriation was done in accordance with Articles 109 and 110, of which I am not aware (although it has been reported that not all released Ukrainian POWs appeared to be in good health).

Prisoner Exchange and Hostage-Taking

The second issue relates to the question of how the exchange of prisoners relates to the prohibition of hostage-taking in IHL. Belligerent parties may be motivated to capture hostile POWs to use them as a “bargaining chip” for additional exchanges. Accordingly, President Zelensky has been quoted as saying “[t]he more Russians we capture, the more effective the negotiations regarding swaps will be.” In light of the ongoing conflict in Gaza, where Hamas captured both Israeli and various third-country nationals to secure, inter alia, the release of Palestinians detained by Israel (an issue discussed at length by Majors Tramazzo and Coble and Professor Schmitt), observers may be more sensitive to this issue, which deserves to be briefly addressed here.

Treaty IHL does not provide a definition of hostage-taking, but an influential definition provided by the ICRC Commentary describes it as,

the seizure, detention or otherwise holding of a person (the hostage) accompanied by the threat to kill, injure or continue to detain that person in order to compel a third party to do or to abstain from doing any act as an explicit or implicit condition for the release, safety or well-being of the hostage.

Only GC IV defines hostage-taking as a grave breach in relation to persons protected by that Convention (primarily civilians); none of the other Conventions’ grave breaches clauses—which are primarily designed to protect members of the armed forces who are hors de combat—explicitly addresses hostage-taking, nor does the penal sanctions clause of Additional Protocol I. However, hostage-taking is prohibited by both Common Article 3 (which, it is worth recalling, also applies in times of international armed conflict) and Article 75 of Additional Protocol I. The International Criminal Tribunal for the former Yugoslavia (ICTY) (for example, in the Karadžić trial judgment, paras. 467 et seq.) has described hostage-taking as a violation of the laws and customs of war regardless of whether it is committed against civilians or members of the armed forces who have laid down their arms. Following the ICRC definition, the practice of capturing enemy soldiers to secure their exchange for one’s own captured troops could come within the scope of “seizure” or “detention” to compel the rival belligerent to do something as an “explicit or implicit condition” of their release.

Clearly, the principal question is how the general prohibition of hostage-taking applies to combatants in international armed conflicts, and specifically to POWs. The ICRC Customary IHL study recalls that “there is no indication that the offence [of hostage-taking] is limited to taking civilians hostage.” In Karadžić, an ICTY Trial Chamber considered the taking as hostages of UN peacekeepers a violation of Common Article 3 primarily because the United Nations was not a party to the conflict. It added that “even if the UN personnel had been combatants prior to their detention, as the Accused argues, they were in any event rendered hors de combat by virtue of their detention and thus were also entitled to the minimum protections guaranteed by Common Article 3.” In that case, admittedly, the peacekeepers were held in order to compel NATO to cease its airstrikes against Bosnian Serb forces during the Bosnian War, rather than to effect a reciprocal release of detainees; threats were also made against the life and integrity of captured peacekeepers, including the threat to place them at the site of potential airstrikes. Nevertheless, the Trial Chamber’s implicit approach to the motivations behind capturing enemy combatants is, in my view, insufficiently well-delimited, even if it was suitable in casu. On appeal, the defence maintained that unlawful detention should have been considered an element of the definition of hostage-taking; the Appeals Chamber rejected this argument, stating that “whether the detention of the UN Personnel was lawful or not would have no bearing on the applicability of the prohibition on hostage-taking under Common Article 3.”

Following this reasoning, capturing enemy combatants with the intention of compelling the other side into an exchange of prisoners—as opposed to detaining them for security purposes—could amount to hostage-taking in the sense of Common Article 3, even though GC III authorises their detention.

In my view, such an approach would be impermissibly broad and even potentially harmful from a humanitarian point of view (I believe that belligerent parties should be encouraged to capture enemy combatants, not discouraged from doing so). Certainly, threatening to kill or harm a POW to compel another side to behave in a certain way would make them a hostage; but the same cannot be said of conditioning their release if the criteria for obligatory release and repatriation, in accordance with Articles 109 and 118 of GC III, have not been met, as such detention is in principle lawful. Thus, while the fact that detention is lawful under IHL does not in itself prevent the detainee from being considered a hostage, it should be taken into account when determining if the specific acts to which they have been subjected amount to hostage-taking.

Exchanging Civilian Internees

It has also been reported that the group of prisoners released by Russian forces includes civilians. Although much of the discussion above regarding the exchange of POWs and the matter of hostage-taking equally applies to interned civilians, there are a few additional points to bear in mind when considering their situation under IHL.

First, exchanges of civilian internees have also been common in numerous conflicts around the world. The possibility of such an exchange is implicitly contemplated by Article 132 of GC IV (which encourages the parties to a conflict to conclude “agreements” for the release and repatriation of certain classes of vulnerable internees). The original Pictet Third Convention Commentary recalls that “[t]he argument of reciprocity can be invoked to further, and sometimes even almost to compel, the conclusion of special agreements concerning . . . exchanges of internees,” something the ICRC “has already [played a role in] . . . and would not hesitate to do so again if necessary.” Civilian internees may therefore be lawfully exchanged, although this presupposes that the detention itself was lawful: under the IHL of international armed conflicts, civilians may only be interned as a measure of last resort for imperative reasons of security (see GC IV, arts. 42 and 78). Detaining civilians who are not considered a security threat in order to exchange them would come within the scope of hostage-taking. Additionally, although it is unclear where the Ukrainian civilians were held by Russian forces prior to release, removing them from occupied territory to the territory of the occupying power would violate Article 49 of GC IV and amount to a grave breach of Additional Protocol I, to which Russia is a party.

Concluding Thoughts

The question of POW exchanges under IHL deserves a more in-depth study, especially one that would consider its interplay with international human rights law, which I did not consider in this post. Concerns that an exchange of prisoners resembles a “trade” in human beings are, in my view, well-placed; nevertheless, there exist compelling humanitarian reasons why this persistent phenomenon should be tolerated and perhaps even encouraged. There also likely exists sufficient overlap ratione materiae between the framework of Articles 109 and 110 of GC III and the freedom from ill-treatment, the right to health, and the right to liberty, amongst other rights, for the former to benefit from the complementarity between IHL and human rights law. This can and should be done in a way that prioritises individual well-being while also recognising the legitimate needs and concerns of States involved in armed conflict.

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Photo credit: The Presidential Office of Ukraine