Release, Repatriation, and Parole of POWs: Lessons from Recent Practice in the Ukraine-Russia Conflict

The start of Russia’s full-scale invasion of Ukraine is famously connected to the events that took place on Snake Island. During the early stages of the invasion, the Russian warship Moskva approached the island, warning the island’s defenders to surrender or be bombed, to which the Ukrainian guards famously replied, “Russian warship, go f*** yourself.” At the time, it was thought that the thirteen guards stationed on the island were killed following Russian bombardment. However, it was later revealed that the soldiers surrendered and were taken prisoner by Russia. By year’s end, the Snake Island prisoners and those who attempted to rescue them had been released in a Prisoner of War (POW) exchange with Russia, one of several exchanges that have taken place throughout this conflict.

More recently, Ukrainian POWs who had been released to Türkiye as part of an agreement between Russia and Ukraine, on the understanding that they would stay in Türkiye until the war’s end, instead accompanied Ukrainian President Volodymyr Zelensky back to Ukraine following President Zelensky’s meeting with Turkish President Recep Tayyip Erdoğan. Russia’s reaction was swift: Russian authorities declared that the release and return of the soldiers from Türkiye was a breach of the exchange agreement.

This post analyzes that contention under the law of armed conflict governing the release, repatriation, and parole of POWs. I address the relevant law in greater detail in a chapter of the Lieber Series book, Prisoners of War in Contemporary Conflict.

The Law Relating to Release, Repatriation, and Parole

Under the international law of armed conflict, parties to an armed conflict are entitled to arrange for POW exchanges, either directly back to their States of origin (under Article 46 of Geneva Convention III (GC III)), or else to neutral third States (under Articles 109-111 of GC III). Additionally, a detaining power can unilaterally agree to release POWs on partial or complete parole (under Article 21 of GC III).

While repatriation is usually reserved for POWs who are sick, seriously injured, or subject to prolonged POW captivity, parole has historically been offered for any POW, without preexisting conditions such as prolonged detention or illness. Although not explicitly stated in Articles 21, 46, and 109 of GC III, historical practice (previously explored in this post for Articles of War) frequently premised parole and repatriation on the agreement that released or paroled prisoners were granted their freedom on the understanding that they would not return to fight against their captor.

Paroling POWs happens far less frequently than prisoner exchanges. However, both acts stem from fundamentally pragmatic grounds. As noted elsewhere, paroling and releasing POWs frees up resources (both personnel and materiel) that would have otherwise been spent maintaining POWs in detention facilities, potentially for protracted periods of time.

Potential Consequences of the POWs’ Release

If the agreement between Russia and Ukraine did contain a provision requiring exchanged Ukrainian POWs to stay in Türkiye for the duration of the conflict, any return of Ukrainian POWs covered by that agreement would indeed be a breach. But beyond the simple breach of an agreement between the States involved, the return of the Ukrainian POWs in this instance might set a bad precedent in the current conflict and any future conflicts where POW parole or release is considered.

Because Türkiye allowed Ukrainian POWs to return home, potentially in breach of an exchange agreement, Russia may decide against arranging any more prisoner exchanges or releases. Russian authorities allege this release was the result of heavy pressure placed on President Erdoğan from NATO allies in the lead up to the recent NATO summit.

If Russia believes political pressures might undermine their POW exchange commitments, such exchanges may cease. With the conflict showing no signs of abating, this could mean that any current and future POWs captured in Ukraine or Russia could find themselves in prolonged detention. Beyond the parameters of this conflict, a failure to implement and respect exchange agreements could potentially impact the lives of untold numbers of detainees.

Concluding Thoughts

At the moment, we have no information as to why the Ukrainian detainees were returned, seemingly contrary to an agreement. Neither Ukraine nor Türkiye have provided reasons. However, we may not be dealing with a breach at all. Even if it transpires that the POWs were not released for medical reasons, release and repatriation of physically and mentally healthy POWs to either neutral third States or their countries of origin during a conflict is specifically authorized in instances of prolonged detention.

In the recently updated Commentaries to the Geneva Conventions, it is clear that there is little State practice to suggest that there is a “minimum” duration of captivity required for such captivity to be considered “prolonged,” and that it would be undesirable to set such a minimum. The prisoners released from Türkiye had been held in captivity since surrendering in May 2022, amounting to approximately fourteen months. Though fourteen months does not seem a particularly long time relative to the history of captivity in armed conflict, State practice and academic opinion supports twelve to eighteen months constituting prolonged captivity (para 4289). Therefore, this purported breach may not be a breach at all. It may instead serve to reinforce the international law protecting POWs rather than undermine it.

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Emily Crawford is an Associate Professor at the University of Sydney Law School and a co-editor of the Journal of International Humanitarian Studies.

Photo credit: The Presidential Office of Ukraine