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The question bothers me since February 2022. Why (legally) are Russian combatants in Ukraine considered soldiers (thus POWs when captured) rather than terrorists?

  • There is no formal declaration of war.
  • They are members an organization (Russian military) that commits acts of terrors to civilian population in clear violation of international law of war. Moreover, they either directly or indirectly contribute to the mentioned acts of terror.
  • Their state (Russia) explicitly claims that there is no war (thus unilaterally waiving the protection of law of war for Russian forces).

Why is that particular group of armed people acting in clear violation of Ukrainian law treated as "soldiers in war" rather than state-sponsored criminals?

Note, that waiving the protection of law of war does not waive the protection of Ukrainian law (right to due process etc.).

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    Comments are not for extended discussion; this conversation has been moved to chat.
    – Pat W. ♦
    Oct 13, 2022 at 9:32
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    @RonJohn Does that apply to ISIS soldiers? Or would to mafia soldiers had they don (pun not intended) uniforms?
    – abukaj
    Oct 13, 2022 at 19:17
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    Mafia "soldiers" do not meet the legal definition of "soldier" (being a uniformed member of a state-organized armed force). ISIS soldiers might meet that legal definition; the US devised the notion of "armed combatants" so they did not have to treat Taliban fighters as soldiers.
    – RonJohn
    Oct 13, 2022 at 19:25
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    How did US deal with Article 4 (1.3) of III GC, which recognizes "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power" as POWs?
    – abukaj
    Oct 13, 2022 at 19:34
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    @mjc From Ukrainian point of view (even if it is pure propaganda) they commit war crimes. Then my question may be rephrased accordingly "why does Ukraine treat them as soldiers in war rather than claim they are terrorists".
    – abukaj
    Dec 20, 2022 at 14:04

1 Answer 1

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The third Geneva convention says in its second article (emphasis added):

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.

The violence in Ukraine qualifies for at least two reasons: it is an armed conflict between two high contracting parties, and it is a case of partial occupation of the territory of a high contracting party. "Members of the armed forces" of Russia who have "fallen into the power of [Ukraine]" are therefore protected by the provisions of the convention as prisoners of war as defined in the convention's fourth article.

It follows from this that the parenthetical commentary in the question's third bullet point is incorrect: refusing to call this "military action" a "war" does not in fact "unilaterally waive the protection of law of war for Russian forces."

As to the allegation in the second point, even a prisoner of war who is suspected of committing a war crime is entitled to the convention's protections. Any punishment for the war crime is to be imposed by due process of law. The fact that war crimes may have been committed by other elements of Russia's armed forces is even less of a justification to deny the convention's protections to prisoners who are not individually suspected of war crimes.

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