Does Russia need to treat the captured Ukranian sailors as POWs?

Question

Some of the Ukranian sailors that were captured/arrested on their way to the Sea of Azov in November 2018 have been shown on Russian state TV with recorded statements.

Ukraine demands that they are to be treated as prisoners of war, which according to the Geneva Convention implies that their public display is unlawful.

Russia insists that since no official state of war has been declared between both countries, the event is treated as a regular, unauthorized border crossing and the arrested men are prosecuted as criminals.

Both Russia and Ukraine (as Soviet Union) have signed the Geneva Convention. This includes Part III (Convention (III) relative to the Treatment of Prisoners of War), which also states that the protection for POWs needs to be guaranteed even if the war is not recognized as such by one of the parties involved:

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Article 2:

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Undoubtedly there is an armed conflict going on, in who's context the arrest needs to be viewed. Ukraine makes it clear that they consider the conflict an armed invasion by Russia and not just a regional, internal conflict. However, a war between both countries has not been declared officially by either side. Russia refuses responsibility or influence with regards to the conflict and says any actions of separatists are not related to or supported by the government/military.

This incident is noticeable because it marks the first time the Russian military has acted also officially in the Ukraine war, as mentioned in the answer to this question. As such it qualifies as an armed conflict between two signatories of the Geneva Convention, in particular the sections concerning POWs.

Under these circumstances in which both countries haven't issued a declaration of war, does Russia need to treat the sailors as POWs or is Russia's behavior in their prosecution 'ok' according to commonly accepted standards/laws?

Answer 1

IANL but given this was an instance of "armed conflict", and the term for purposes of the Geneva convention is described as:

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces ; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4. Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

In the case of the Kerch strait incident the Russians who intervened were Border Guard Service, itself part of the the FSB - which Russian law decrees is a military organization. So this would appear to be a clear case of something being classed as an "armed conflict" and therefore the Geneva Convention article II applies.

The use of the term "armed conflict" in the convention is specifically to prevent claims such as those Russia is making from being used as a get out:

A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate selfdefence. The expression " armed conflict " makes such arguments less easy.

The question of the applicability of the convention to other situations in the Ukraine/Separatists is different:

Ukraine makes it clear that they consider the conflict an armed invasion by Russia and not just a regional, internal conflict. However, a war between both countries has not been declared officially by either side. Russia refuses responsibility or influence with regards to the conflict and says any actions of separatists are not related to or supported by the government/military.

Without proof that Russia is actively orchestrating the actions of the separatists (essentially using them as it's own armed forces) then the applicability of the conventions is much more limited - and in particular the "public curiosity" one about displaying POWs doesn't matter.

The irony being of course is that if the Ukrainians were to succeed in getting their conflict with the separatists classified as an "armed conflict" with Russia under the Geneva Conventions (as opposed to a "non-international armed conflict" as the Red Cross currently categorizes it) they themselves would have several violations to answer for from their own display of prisoners such as the two Russians captured in 2015.