PILPG Ukraine Drafting Notes: Prisoners of War

Prisoners of War 

Negotiations over the exchange of prisoners of war (POWs) will involve careful balancing between humanitarian concerns and legal accountability.  The issues that could arise in negotiations regarding prisoners of war are:

• Those Eligible for Release:  Determining which POWs are eligible for release and under what conditions, including distinctions between combatants, those accused of war crimes, and civilians detained during hostilities.

• Timeline:  Agreeing on a feasible and acceptable timeframe for POW exchanges, which may influence the urgency of humanitarian concerns and the pace of political reconciliation.

• Logistics:  Establishing the methods by which exchanges will occur, including potential reliance on direct transfers or intermediaries, which may affect transparency and trust-building.

Those Eligible for Release

Eligibility for release will be central to POW negotiations, as it involves complex questions of justice, reciprocity, and humanitarian principles.  Determining who qualifies for release may require establishing criteria based on combatant status, accusations of war crimes, and the detention of civilians, each with distinct implications.

• All for All:  An "all-for-all" exchange model, where all detained personnel are released regardless of status, charges, or offenses, can serve as a goodwill gesture and a humanitarian solution.  This approach allows for a clean slate, reducing administrative burdens and removing any distinctions between combatants, those accused of crimes, and detained civilians.  However, it risks releasing individuals who may have committed serious offenses, potentially undermining justice and accountability, especially if public sentiment demands prosecution for war crimes.  

• Combatants Only:  Limiting releases to combatants—those involved directly in armed conflict—focuses exchanges on soldiers and excludes non-combatants or civilians detained under other pretexts.  This model reduces the complexity of cases and is more acceptable in traditional military terms, as it targets personnel directly related to wartime activities. However, this approach risks creating an uneven outcome if one side has detained more non-combatants or mixed-status individuals.  It could also spark domestic controversy, particularly if families expect the release of all detained persons.

• Civilians Only:  Prioritizing the release of civilians detained during hostilities can generate goodwill among the civilian population and ease domestic tensions.  Civilians, unlike combatants, are often seen as non-participants in armed conflict, and their release could be a trust-building measure.  However, civilian releases alone might not satisfy all parties if combatants remain detained, potentially creating an imbalance in perceptions of justice.  

• Only Those That Have Not Been Charged with Crimes:  This model focuses on releasing only those detainees who have not been formally charged with war crimes or other criminal offenses.  It represents a compromise by allowing for the release of many POWs while reserving justice mechanisms for those accused of serious offenses.  However, this option is complicated by differing legal standards and definitions in both states regarding what constitutes a war crime or prosecutable offense, risking selective releases that each side may view as unfair.  It also presents administrative challenges in verifying the legal status of detainees, potentially delaying the process.

• Case-by-Case Basis:  Conducting a case-by-case review to assess each individual’s eligibility for release allows for a tailored approach, weighing both humanitarian needs and accountability concerns.  This option provides the flexibility to include or exclude detainees based on their specific involvement or accusations against them, but it would be administratively demanding and slow.  The selective nature of this approach may also fuel accusations of bias or political favoritism if certain individuals are prioritized, potentially straining trust and prolonging negotiations.

Timeline

Setting a timeline for POW exchanges involves balancing urgency with logistical and political feasibility.

• Strict Time Period:  A strict, defined timeline for all exchanges could ensure a swift resolution, providing psychological relief for the families involved and creating momentum for the peace process.  However, setting an unrealistic timeline may result in logistical difficulties, particularly if verification processes are complex, and may provoke accusations of non-compliance if one side cannot meet the deadline, risking erosion of trust between parties.

• Phased:  A phased approach, with multiple rounds of exchanges over an extended period, allows time for verification, planning, and adaptation to unforeseen logistical or political issues.  Phased exchanges could build trust incrementally and offer leverage points for both sides to ensure compliance with broader peace terms.  However, prolonged or staggered exchanges may face criticism from domestic audiences, especially from families waiting for loved ones, and could be vulnerable to political setbacks or renewed hostilities.

Logistics

• Directly:  Conducting POW exchanges directly, without intermediaries, may foster a greater sense of mutual commitment and control over the process.   Direct exchanges could, however, lead to logistical challenges at the border or in other designated locations, as well as potential security risks.  Tensions could also arise from accusations of mistreatment or discrepancies in numbers during direct handovers.

• Through a Third Party:  Utilizing a third-party mediator, such as the International Committee of the Red Cross (ICRC) or the United Nations, can provide oversight and neutral verification of the exchanges, potentially easing tensions and enhancing transparency.  However, reliance on intermediaries may slow down the process and could be challenging if either side perceives the third party as biased or intrusive.  Additionally, working through third parties could complicate real-time adjustments if unexpected issues arise during the exchange process.