How could Russia hand over Ukrainian prisoners of war to Hungary? Are they even prisoners of war?
June 09. 2023. – 03:29 PM
It is possible that the Ukrainian soldiers who were captured by Russia during the fighting in Ukraine did not arrive to Hungary as prisoners of war. The legal process is unclear, however, as the Hungarian side is not providing details. From a diplomatic point of view, on the other hand, it is odd that the Hungarian side has not notified Ukraine of the takeover of the 11 Transcarpathian soldiers. International law expert Tamás Hoffmann, analysed the unclear details and the legal context for Telex.
How were Ukrainian prisoners transferred from Russia to Hungary? What is their status? What will be their fate? Several questions were left open, even after Russia confirmed the news that they have indeed handed over Ukrainian prisoners of war from Transcarpathia to Hungary.
Deputy Prime Minister and Minister for Church Diplomacy, Zsolt Semjén more or less repeated the statement of the Russian Orthodox Church (RPC) that the transfer of the victims was completed with the cooperation of the RPC as a "gesture of philanthropic love" towards Hungary. Last year, Patriarch Kirill, who heads the RPC and has a background as a KGB agent, was removed from the EU's sanctions list against Russia following pressure from Hungarian Prime Minister Viktor Orbán.
The Deputy Prime Minister's words did not explain how the "participants in armed events" even entered Hungarian territory – the RPC consistently refuses to describe the Ukrainian citizens who have been handed over as prisoners of war. What the Hungarian state is to do with them is not known either. However, the Hungarian state has plenty of legal obligations, including to notify the Ukrainian side.
What is certain is that this was not officially done either on the day of the transfer, Thursday 8 June, nor afterwards, Telex has learned from a reliable source. Meanwhile, Andriy Yusov, a representative of the Ukrainian authority responsible for the treatment of prisoners of war, confirmed this to Korreszpondent. The Ukrainian Foreign Ministry has also contacted the Hungarian Foreign Ministry and Zsolt Semjén.
According to the RPC, the transfer took place on the initiative of Hungary, but the details of this initiative are also unknown. Did the Hungarian side approach the Russians with specific names? Did it offer to take prisoners of war in general? Did it specifically ask for Transcarpathians? Specifically of Hungarian nationality?
Are they prisoners of war at all?
The status and treatment of prisoners of war is regulated by the Third Geneva Convention of 1949. While Russia doesn't admit that it is waging war on Ukraine, the convention explicitly refers to armed conflict, stressing that it applies even if either of the warring parties does not admit that there is a war going on between them. The fact of an armed conflict is, of course not disputed by Russia, but it would not be a precondition either.
The persons concerned were therefore prisoners of war at the time of their capture, and are covered by the Geneva Convention.
"This allows countries involved in the conflict to hand over prisoners of war to a third country. In principle, the agreement stipulates the continued detention of the POWs in the third country after the transfer," international law expert Tamás Hoffmann said, explaining the general legal background to the agreement.
The Associate Professor at Corvinus University stressed that in this case, the receiving party cannot return the detainees to their country of nationality. "That would be a violation of the international convention."
If the Ukrainian citizens were taken over from Russia as prisoners of war by the Hungarian side – another legal possibility we will discuss later – the question of how they ended up on Hungarian territory also arises. This is not possible by direct flight, as Russian planes are not allowed to land on EU territory, and vice versa. In this case, the transfer process must involve a third party where this transfer can take place," Hoffmann said.
Obviously, this third party could be Turkey or Serbia, where Russian planes are still allowed to fly. After the handover, the POWs could be transferred to Hungary by direct flight, or even by land from Serbia.
In this case, however, under the Third Geneva Convention, both the Hungarian and the Russian side would have had to notify Ukraine and the Red Cross, which is responsible for monitoring the health of the prisoners and their proper treatment. If only because
in principle, the prisoners of war will still remain in custody, only from now on, in their host country.
This could not be avoided by granting them Hungarian citizenship," Hoffmann pointed out, noting that this is not prohibited by the Convention.
They could also have been released
In the specific case, however, it is possible that Russia, in agreement with the Hungarian side, did not hand over prisoners of war, but persons involved in armed conflict who were essentially released. In this case, they no longer need to be detained in Hungary, and there is no need to involve a third country in the transfer: they would have essentially arrived in Hungary as civilians (although this also raises questions, as it is not clear what would have obliged the released persons to come all the way to Hungary.)
If they are not prisoners of war, the Red Cross need not be notified either, since in this case the Third Geneva Convention no longer applies in their case.
However, the Hungarian side would still have the obligation to notify Ukraine. According to Hoffmann, in this case Hungary must send the Ukrainian citizens who have been allowed to enter its territory to Ukraine.
It is noteworthy that Semjén also didn't use the term 'prisoners of war', he spoke of 'people' in his statement to ATV – in this case, the third Geneva Convention doesn't apply, including all the obligations detailed above. It is therefore possible that the Russian side chose this legal loophole and formally released the prisoners of war.
The fact that the RPC's statement doesn't even refer to the Geneva Convention also suggests this, as it only talks about international cooperation and doesn't mention prisoners of war but "persons involved in armed conflict".
We sent related questions to the Ministry of Foreign Affairs and Trade and the Hungarian Charity Service of the order of Malta. They wrote: “The Hungarian Charity Service of the order of Malta was asked to participate in saving people's lives. The organisation, as it has done for the past three decades, whenever it has had the opportunity to do so, has fulfilled its mission. In order to protect the people entrusted to us, we are not in a position to disclose any more information at this time.” The fact that the Red Cross was not involved in the process also indicates that at the time of their arrival to Hungary, the individuals concerned were no longer considered prisoners of war.
The ministry only informed us that they are not in a position to disclose more than what Deputy Prime Minister Zsolt Semjén had said.
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