Ukrainian and Russian media — and at least one Ukrainian member of parliament — have boldly announced the first capture of an enemy soldier. He’s one of the heavily armed fellows in Crimea who Ukrainians call “Little Green Men,” who Vladimir Putin swears high and low are “Crimean Self-Defense Forces,” and who everyone in the universe knows are actually Russian soldiers. Considering all of that weirdness, it’s only appropriate that photos of the prisoner and his ID haven't been enough to settle the matter of his origin or even his existence. But the mere possibility of a captured Russian — or Crimean, or Martian — soldier who lacks military markings brings up a whole host of legal warfare issues.
The guy wearing the camouflage gear and kit of a Russian soldier is supposedly named Alexei Medvedev. He allegedly hails from the Russian city of Yoshkar-Ola, nearly 1,000 miles from the city of Feodosiya where he was captured. Journalists have contacted authorities in Yoshkar-Ola, who have responded with what amounts to “Alexei who?”
So is Medvedev a Russian POW, or just … some guy?
I’m so glad you asked.
First things first. Authorities need to determine whether this situation falls under the Laws of War, or as they’re also called, the Laws of Armed Conflict, International Humanitarian Law, or the provisions of the Hague and Geneva Conventions. According to University of Texas law professor Robert Chesney, it does.
“As a threshold matter, it depends on whether there is a state of armed conflict triggering the law of armed conflict,” Chesney told VICE News. “If not, then there’s no point contemplating the implications under that body of law. So, is there a conflict? Yes — at a minimum, Russian forces are occupying Ukrainian territory.”
When someone up and abducts a person under regular circumstances, it’s called kidnapping. But when that happens to a combatant during the course of a conflict, it’s called taking a soldier prisoner. So we can establish that Medvedev has not been kidnapped.
Second, they need to determine whether this is a legally permissible military intervention by Russia. The West says it's not, while Russia predictably says it is — hypothetically speaking of course, since Putin still swears Russia is not intervening. A handful of folks have been making the argument that Russia's actions are legal because Russian troops were invited by some Crimean locals who were irritated by the ruckus of Euromaidan and worried that Ukrainian nationalists might egg their dachas. This vein of reasoning is either a dumbed-down version of “responsibility to protect” humanitarian arguments, or simply very stupid. In either case, anyone who buys into it needs to explain whether Brighton Beach residents should now be on the lookout for a very innovative off-off-off_-Broadway remake of _Red Dawn.
The fact is, people can argue until they’re blue in the face about whether thousands of Russian soldiers are “allowed” to enter Crimea, because thousands of Russian soldiers are allowed to do pretty much anything they want. Who’s going to stop them? You? You and what army? (Answer: Not the Ukrainian one.)
The last question to answer is whether Russian troops are breaking the rules of engagement by not wearing any identifiable insignias on their uniforms. And despite the excited pronouncements of at least one expert, the answer is no.
There are three types of apparel-related deceptions prohibited in war (or, if you want to be particular about it, three ways to violate the principle of distinction which qualify jus in bello as acts of perfidy). Those deceptions are disguising yourself as a civilian, faking surrender, and pretending to be on the other side. But the troops in Crimea are clearly combatants; the only sketchy bit is that they’re not wearing a flag or a unit identifier. That may be slightly confusing, but it's not violating any of the Geneva Convention provisions on fronting in combat.
In fact, it's happened before — for instance, when American pilots enforced a no-fly zone in Iraq during Operation Southern Watch. In an interview with VICE News, Professor Michael Lewis of Ohio Northern University pointed out that pilots enforcing the no-fly zone routinely removed all identifying markings from their uniforms in order to deny Iraqis any intelligence information in the event that the pilots were shot down and taken prisoner.
Under the rules for handling captured soldiers, legal combatants are afforded certain protections: families have to be notified, prisoners get sent home after the fighting is over, and so on. But without proper identification there might be (extraordinarily shaky) grounds for Ukraine to deny combatants immunity from civil charges and POW protections.
It boils down like this: If the Ukrainians captured a Russian soldier wearing a Russian uniform with Russian flags and the insignia of a Russian unit, they'd know exactly who to notify and, more importantly, who to negotiate with about the prisoner’s status. If that Russian soldier has Russian ID and other identification, even better. But when you take a couple links out of that chain, everything gets pretty confusing.
However, since the soldiers in Crimea aren’t wearing uniforms with Russian markings, it kind of means Russia is disowning the soldiers. Granted, Medvedev has some ID, but in and of itself, that doesn’t mean anything — in fact, some people are questioning its validity. Think of the British nationals fighting in Syria. They may be wandering around in camouflage, but if one of them gets captured by the Syrian regime, would anyone expect the British government to act like they’re British soldiers?
None of these debates have been fully joined because the governments of Ukraine, Crimea, and Russia have yet to do anything with, to, or about the unlucky Mr. Medvedev. And so, much like the region he invaded, his fate is up in the air.