After the publication of a video online showing Russian servicemen in Lugansk Makiivka lying shot with their hands up and covered in blood, Ukraine is conducting a pre-trial investigation into the commission of treachery by the servicemen of the Russian Armed Forces. A criminal case has been initiated under the article on “violation of the laws and customs of war” (part 1 of article 438 of the Criminal Code of Ukraine), the Prosecutor General’s Office of Ukraine told The Insider.
According to the Prosecutor General's Office, Russian servicemen simulated surrender and at that moment opened fire on the military of the Armed Forces of Ukraine. The Lugansk Regional Prosecutor's Office entered this information into the Unified Register of Pre-trial Investigations.
“According to the results of media monitoring, it became known that in the village of Makiivka, Lugansk region, the Russian military, simulating the surrender of the Armed Forces of Ukraine, opened fire on Ukrainian defenders. Such acts are prohibited by international humanitarian law. During the pre-trial investigation, measures will be taken to establish all the circumstances of this event, and a legal assessment will be given to all its participants.”
According to article 37 of the Additional Protocol to the Geneva Conventions of August 12, 1949, it is forbidden to kill, injure or capture an enemy by resorting to treachery. Perfidy is considered to be action aimed at gaining the confidence of the enemy and making him believe that he has the right to protection or is obliged to provide such protection in accordance with the rules of international law applicable in armed conflicts, with the aim of defrauding such confidence.
Earlier, adviser to the head of the office of the President of Ukraine Mikhail Podolyak said on the YouTube channel of Alexander Plushev that the Ukrainian authorities have a full version of the video of the execution of Russian prisoners. According to Podolyak, some of the Russian servicemen were really going to surrender, and some of them opened fire on the Ukrainian military. Podolyak assured that an investigation was underway on this video, but did not publish the full version of the video.
“When you watch a fragment of the video, you may get the impression that there is a violation of the Geneva Convention when surrendering. But when you watch the full video, it is clear that some of the Russian servicemen were really going to surrender, and some of them opened fire on the Ukrainians who were trying to carry out the procedure. In the 47th paragraph of the Geneva Convention it is very clearly stated that when surrendering, if there is a threat from those who surrender, then such a parameter as prisoners of war does not work. That is, this is an essentially ordinary clash happened.
On November 18, a video was published on social networks and Telegram, in which the Ukrainian military took Russian servicemen prisoner. In another published video, filmed from the same place, corpses are already lying on the ground, while their hands are raised up, and the uniform of military personnel is covered in blood. The Russian Ministry of Defense, on the basis of records, accused the Armed Forces of Ukraine of war crimes, declaring a "mass massacre of unarmed Russian prisoners of war." The Russian Investigative Committee opened a criminal case on the murder and ill-treatment of Russian prisoners of war on the territory of the “LPR”.
The New York Times (NYT) later compared the video to Maxar Technologies satellite imagery and drone footage. The journalists came to the conclusion that the footage was filmed in Makiivka, Luhansk region, and is genuine. Iva Vukusic, an expert on war crimes prosecution at the University of Utrecht, said at the time that it was difficult to determine whether a war crime had been committed based on the video. The decisive factor is the time when the Russian soldiers were shot – immediately after one of them opened fire, or after that, when the threat was neutralized. In the latter case, it is more likely a war crime, the expert argued.