The Duty to Protect Prisoners of War against Public Curiosity
Modern Communication Technologies and the 1949 Geneva Convention relative to the Treatment of Prisoners of War
Recently, a video was circulating on online platforms allegedly showing a member of the Ukrainian armed forces singing the national anthem of the Russian Federation. While forcing the prisoner of war (POW) to sign the anthem of the state that captured it, regardless of whether the POW was captured by that state or by proxy forces the conduct of which is attributable to that state, is already incompatible with international humanitarian law (IHL), so is sharing such video material. This prohibition follows from Article 13 of the 3rd Geneva Convention (GC III), the Convention relative to the Treatment of Prisoners of War. To be precise, such an obligation should follow from the national legislation states are required to enact because the text of Article 13 GC III reads as follows:
“Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.
Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
Measures of reprisal against prisoners of war are prohibited.”
The obligation of states is to protect POWs against public curiosity.
What then does public curiosity mean? It does not mean that all video of POWs is prohibited. For example can the detaining state record video statements with the free consent of the POWs, for recording purposes, and provide the information as proof of life to the POW’s state. Article 70 GC III allows POWs to communicate with their families immediately after their capture. GC III was adopted in 1949 and entered into force in 1950 and accordingly, Article 70 GC III refers to “cards” that are being sent. Today, modern forms of telecommunication might be provided in addition to (i.e., not replacing) the minimum requirements laid down in Article 70 GC III. But such videos would not be public, as they would not be intended to be shared beyond the intended recipients. How then is the term “public curiosity” to be interpreted?
On 31 July 2007, the Foreign & Commonwealth Office of the United Kingdom (UK) provided the following suggestion for an interpretation of the “public curiosity” clause in Article 13 GC III:
“1. Any image of Prisoners of War (POWs) as identifiable individuals should normally be regarded as subjecting such individuals to public curiosity and should not be transmitted, published or broadcast. Where the specific circumstances of a case make it necessary in the public interest to reveal the identity of a POW (e.g. because of the person’s seniority, or because the person is a fugitive from international justice) great care should be taken to protect the person’s human dignity.
2. Images of POWs individually or in groups in circumstances which undermine their public dignity, should not normally be transmitted, published or broadcast. In the exceptional circumstances where such images are transmitted, for example, to bring to public attention serious violations of international humanitarian law, individual identities must be protected.”
This modern interpretation was deemed necessary because of the development of media and technology since the adoption of the Geneva Convention relative to the Treatment of Prisoners of War in 1949. The ease of production and sharing of videos and photos today was almost impossible to imagine in 1949. In order to ensure meaningful implementation of Article 13 GC III, these new developments have to be taken into account.
The most authoritative source for the interpretation of GC III certainly is the commentary provided by the International Committee of the Red Cross (ICRC). This commentary was first published in 1960 and updated in 2020. Sections 1621 to 1632 of the commentary include in-depth treatment of the issue of public curiosity. Section 1632 of the commentary specifically addresses the challenges posed by modern communication technologies in the context of Article 13 GC III:
“The global nature of modern communications means that the prohibition of insults and public curiosity does not only concern the Detaining Power. Prohibited images or private data of prisoners leaked to the press or posted on the internet can be quickly picked up and retransmitted by television channels, newspapers or websites all over the world. All States party to a conflict are directly bound not to retransmit images or data protected by Article 13. When the exposure takes place in States not party to the conflict, common Article 1 prohibiting any aid or assistance in violations of humanitarian law and Article 129(3) of the Third Convention laying down the obligation to take measures for the suppression of acts contrary to the Conventions will be applicable and require enforcement of the prohibition by third States.” (references omitted)
While the obligation under Article 13 GC III is primarily addressed to the states that are parties to GC III (as the ICRC commentary clarifies in section 1630), the ICRC (in section 1631) also highlights the need for states to disseminate knowledge of international humanitarian law (dissemination of IHL-related knowledge is an essential aspect of the ICRC’s work on IHL) in order to prevent sharing of illegally created audiovisual material that exposes POWs to forbidden public curiosity within the meaning of Article 13 GC III.
While there can be legitimate reasons for the storing of such files, for example by public prosecutors in Ukraine or The Hague, it will be much harder to find a legal justification for the distribution of such material on social media without the consent of the POWs in question.
It is for this reason that this post does not include the name of the POW, nor any information on his personal situation or identifying information, although such information is widely available online. Everybody has a role to play in contributing to the effective implementation of IHL. When it comes to Article 13 GC III, the power at our fingertips has to be wielded responsibly.
About the author
Prof. Dr. Stefan Kirchner is working at the intersection of international environmental law, human rights, and the law of the sea. In addition to practising law, he has taught international law at universities in Germany, Finland, Italy, Lithuania, Ukraine, and Greenland. His most recent books include “Security and Technology in Arctic Governance” (ed., 2022), “Governing the Crisis: Law, Human Rights and COVID-19” (ed., 2021) and “El Ártico y su gente - Ensayos de derecho internacional” (2020), and “The Baltic Sea and the Law of the Sea - Finnish Perspectives” (with T. Koivurova, H. Ringbom and P. Kleemola-Juntunen, 2019). Prior to his legal career, he was an emergency services worker with the German Red Cross. This text only reflects his personal opinion.