Is it really always illegal to publish videos of POWs?
ICRC has stated that videos of Russian POWs violate Geneva Convention III Article 13 under the term “for public curiosity”, and many people are earnestly sharing that without checking the primary source, but that interpretation is not consistent with what their own Commentary written in 2020 says.
ICRC’s tweet which the controversy started from is here:
ICRC’s notice that publishing images of POWs violates Geneva Convention III Article 13 is an interpretation of “for public curiosity”. But if you read paragraph 1627 of ICRC’s own 2020 commentary, that interpretation is dubious, and there’s a reasonable argument that the purpose of the publication fits “compelling public interest” in terms of ¶1627. There are some videos which violate ¶1629, but the ones of live POWs don’t.
Basically ¶1627 makes the point that this rule can properly be moderated in proportion to other human rights, it is not itself an absolute principle. Absolute human rights principles include: freedom from torture, and non-refoulment. Most other human rights based laws are allowed to have proportionality checks relative to other human rights or other people’s human rights. Showing images of POWs who have been or are being tortured or humiliated would violate the absolute human right of freedom from torture, but if there is no torture, humiliation or coercion, then the benefits of revealing POWs publicly can be balanced against the reasons for not doing so.
ICRC is the ‘custodian of the treaties’ wrt. the Geneva Conventions, so unless there’s a very good reason otherwise, their interpretation is the standard. However, ICRC’s impartiality has to be questioned because they have persistently shown complicity with the Assad regime, which was serious and strongly evidenced enough to trigger a UN investigation.** So unfortunately it’s reasonable to doubt whether their notice about GC-III 13 is an attempt to appear “balanced” by finding fault with something on the Ukrainian side too.
The compelling public interest in terms of ¶1627 is reducing casualties on both sides, by informing the Russian public what is really going on so that they can make their own choices, without coercing them (such as, by terror) or the POWs. There’s no sign of any coercion or humiliation, and no grounds to suspect any.
In some of the Ukrainian videos of POWs, “in the prisoner’s vital interest” in ¶1627 also seems to apply, as the POWs themselves want to inform their mothers that they are safe and being treated well, as they can’t rely on their own military units to inform their family whether they are alive or dead, like they don’t even get sufficient food from their military either.
Regarding the concern that revealing identities of POWs, especially those who have surrendered, may put them at future risk of retaliation by the de facto authorities of their home country, that is a realistic concern and it relates to ¶1616 interpretation of Article 13(2) which says it “sets out a general obligation to protect prisoners of war from harm, irrespective of its source.”
However, about the scope of Article 13(2) , ¶1617 says “Article 13(1) requires the Detaining Power to protect prisoners of war ‘at all times’. Pursuant to Article 5(1), this means that the Detaining Power must protect the prisoners from the moment they fall into its power until their final release and repatriation.” Thus 13(2) does not obligate the detaining authority to protect POWs from future risks of retaliation from the de facto authorities of their country of origin by not publicly revealing their identities while they are in safe detention. Other humanitarian law obligations may obligate the detaining authorities of POWs to grant international protection to Russian defectors, especially in relation to “well-founded fear of persecution for military desertion due to conscientious objection”, but while they are in detention that risk of persecution by the opposing belligerent de facto authorities and their obligations to protect POWs from them does not yet apply, as they are not yet exposed to the opposing belligerent authorities.
Further arguments and responses:
The media environment has structurally changed since the Geneva Conventions were made in 1949. A major difference is that now social media and public participation in mediated communication is a much bigger part of the public sphere than broadcast media or government-aligned broadcast media. Governments also have less chance to control or influence media as a whole. Warfare is also more hybrid, often with information-psychological warfare tactics leading and kinetic warfare following, the reverse of in the 1930s-40s. Considering how much has changed, it’s appropriate to approach the Conventions primarily in accordance with their purposes more than just their literal wording. In this controversy, the argument is over the literal wording “for public curiosity” which at the time the rule was made meant a form of humiliation, as described in ¶1621–2. But there is nothing remotely humiliating about the Ukrainian videos of POWs. They show the POWs in a compassionate light and aim to persuade more enemy combatants to surrender, partly by showing that they will be safe and treated well.
The tit-for-tat escalation argument — it has been argued that refraining from showing publicly any identifiable images of POWs, even when those POWs insistently want to speak publicly to Russians and in particular other Russian soldiers, is necessary to prevent starting an escalatory cycle with the enemy showing Ukrainian POWs and beginning to torture or humiliate or coerce them into appearing publicly. However, the Russian side already begins at the level of IHL violations of publishing videos of their soldiers and Wagner mercenaries torturing and killing civilians, in Syria and in Chechen Republic, to terrorise other civilians into complying with forced expulsion, and explicit incitement to genocide. There cannot really be a ratcheting up process between the sides in this war when one side starts at an allegedly borderline violation and the other side starts at the most extreme violations.
Public reception and interpretation of the messages also is relevant to judging them. The effects of the publication of Russian POWs so far are humanizing and dignifying the enemy, evoking compassion, and hoping that by sharing the videos more Russian soldiers will surrender so that they do not have to die or kill in a war that is really irrelevant to their interests. These effects are the total opposite of what the rule in GC-III A13 was made to prevent.
The uncertainty argument about whether the POWs could possibly have been coerced to appear and speak in the videos — it’s not impossible that all of their facial expressions, intonation, bodily cues, etc. could all be covering up that they’re really afraid of their captors and only saying what they said because they were coerced, but it’s extremely unlikely that in so many videos now there could be no detected sign of any mistreatment or coercion if that was the case. In videos in which prisoners were coerced to speak, by the Russian and Syrian authorities, it’s always been unmistakably obvious. Rather than using this uncertainty argument, ICRC could visit the POWs and ask them in private, then report if there is actually such a problem. Of course that also wouldn’t provide absolute certainty, but it would be well beyond reasonable doubt.
If the standard of evidence required for non-coercion was total certainty, then “If there is a compelling public interest in revealing the identity of a prisoner (for instance, owing to their seniority or because they are wanted by justice) or if it is in the prisoner’s vital interest to do so (for example, when they go missing), then the materials may exceptionally be released, but only insofar as they respect the prisoner’s dignity.”* would not occur.
