At the request of law enforcement agencies, experts have developed a memorandum on legal qualification of actions taken by prisoners of war with consideration of Ukraine’s obligations under international law.
To correctly qualify illegal actions, it is necessary to determine whether a person is a combatant, or legitimate participant in an international armed conflict.
Combatants shall include:
- Personnel of the regular armed forces;
- Personnel of the militia and volunteer detachments that may belong to the armed forces;
- Personnel of organized resistance movements and guerrilla formations if they meet the following criteria: They are headed by a person who takes responsibility for subordinates; have a definite and clearly visible logo or distinctive sign; openly carry weapons; and, adhere to laws and customs of war in their actions.
Should persons be captured who take up arms in an armed conflict on the side of the aggressor state, they shall be treated based on the presumption that they have a status of prisoners of war.
If there are no data to confirm the commission of war crimes by a serviceman or woman, legal qualification of his or her action under the Criminal Code shall not be required. Such a person shall be deemed a prisoner of war in accordance with provisions of international law and shall be placed in a POW camp. Prisoners of war shall not be held individually responsible for participating in armed conflict if they have not violated the laws or customs of war.
Should information be available about commission of war crimes by prisoners of war, this information shall be entered in the Unified Register of Pre-Trial Investigations (URPTI) with qualifications, under Article 438 of the Criminal Code of Ukraine, “Violation of Laws and Customs of War”.
Non-combatants (civilians) shall identify persons who facilitate and assist combatants of Russia in an armed conflict. They can be both citizens of Russia and Ukraine as well as other states that commit sabotage, make corrective marks and collect information on the movement of troops, among other activities such as involvement in an armed conflict on the side of Russia without weapons. “Illegal combatants”, that is spies and mercenaries, shall also have no status of prisoners of war. Information on criminal offenses committed by such persons shall be entered in the URPTI. The memorandum contains a detailed description of the situation with recommendations as how specific actions may be qualified as well as warnings on likely mistakes in qualifying such actions by law enforcement agencies.
