On November 22, Russia’s State Duma (the lower legislative chamber) unanimously adopted a statement accusing Ukraine's armed forces of murdering Russian prisoners of war:
“Deputies of the State Duma of the Federal Assembly of the Russian Federation received with indignation the report about another bloody crime of the Kyiv regime – the shooting of Russian servicemen who were taken prisoner.
“The cold-blooded murderers, who opened fire on prisoners of war lying down unarmed, were so confident of their impunity that they videotaped their crimes."
The statement is misleading. It omits the fact that, after several Russian soldiers came from hiding to surrender, another of their colleagues emerged to open fire on the Ukrainians.
That prompted Ukrainian captors to return fire, apparently with deadly consequences for the Russians.
The Duma released the statement four days after fragmentary videos of the incident began to circulate on social media, followed by news accounts.
In perhaps the most detailed report, The New York Times’ visual investigations team traced the incident to mid-November, when Ukrainian forces recaptured the village of Makiivka in Ukraine’s Luhansk region.
In one video, men dressed in Russian uniforms are shown surrendering to Ukrainian troops in what looks like the back yard of a farmhouse. The Russian soldiers leave their position one-by-one and lie face down on the ground next to each other.
The video cuts off abruptly when a man, who appears to be the last of the Russian troops, emerges and starts blasting automatic rifle fire in the direction of the Ukrainian soldiers. An overhead video taken after the shooting ends shows the bodies of 12 soldiers in Russian uniforms.
The Times’ story, published November 20, said the videos journalists analyzed came from “two sources: an unnamed Ukrainian soldier who was taking cellphone video diaries of the fight for Makiivka and drone videos most likely filmed by Ukrainian forces surveilling the offensive.”
According to the Times:
“As an 11th Russian soldier emerges from the outhouse, he opens fire, aiming at one of the Ukrainian soldiers. The Ukrainians are taken by surprise. The cellphone camera jolts away as the Ukrainian soldier filming the scene flinches. A frame-by-frame analysis of what happens next shows the Ukrainian soldier standing beside him raise his rifle and aim toward the Russian gunman.
“The video ends and it’s unclear what happens next. But a second aerial video of the location shows the bloody aftermath.
“The Russian soldiers are lying motionless, apparently dead, most of them positioned as they were when they surrendered. Blood is pooling around them, and some appear to be bleeding from the upper body or head. The soldiers are dressed in the same uniforms with the distinctive red straps and blue marking.
“The Russian soldier who fired at the Ukrainians appears to have been killed on the spot, and he is lying in the position from where he opened fire. The white brick wall beside where he had stood is freshly damaged, perhaps by Ukrainian forces’ returning fire.”
The United Nations, Ukraine and Russia each announced investigations, with Russian and Ukrainian officials trading war-crime accusations.
In statements condemning Ukraine, however, neither the Russian Ministry of Defense nor the Russian Investigative Committee, the federal government’s main prosecutorial arm, made mention of the Russian soldier firing on Ukrainians overseeing the surrender.
The Ukrainian Prosecutor General's Office opened a criminal probe into what it called the Russian soldiers’ behavior of “feigning surrender and opening fire on the Armed Forces of Ukraine.”
On November 25, the press office of Volker Turk, the United Nations’ High Commissioner for Human Rights, said videos from Makiivka were under investigation along with others that might show evidence of summary executions “of both Ukrainian and Russian prisoners of war.”
“Since Russia began its armed attack on Ukraine in February, there have been numerous allegations of summary executions by both parties of prisoners of war and others no longer participating in the fighting. Persons hors de combat [outside of combat], including soldiers who have surrendered, are protected under international humanitarian law and their summary execution constitutes a war crime.”
Regarding the Makiivka videos, he said:
“Our Monitoring Mission in Ukraine has conducted a preliminary analysis indicating that these disturbing videos are highly likely to be authentic in what they show. The actual circumstances of the full sequence of events must be investigated to the fullest extent possible, and those found responsible appropriately held to account.
“The analysis the Mission has done to date underlines the need for independent and detailed forensic investigations to help establish exactly what happened.”
International law under the Geneva Conventions aims to ensure the humane treatment of combatants captured by enemy forces during a conflict. Soldiers who have surrendered, have laid down arms, are sick, wounded or can’t defend themselves, must be treated humanely.
In early October, Anton Herashchenko, an adviser to Ukraine’s Minister of Internal Affairs, published a video demonstrating in detail Ukraine’s procedure for overseeing a surrender.
According to that procedure, when a Russian soldier comes out of hiding or from a military vehicle and lies down on the ground with outstretched arms, that is only the first stage. Ukrainian soldiers must then check if the person surrendering has weapons, tie their hands behind their back and blindfold them. Only after that, does the enemy soldier become a prisoner of war.
If, while surrendering, a soldier opens fire on those taking him prisoner, it may be a fictitious surrender prohibited under Article 37 of the Geneva Conventions:
“It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy:
(a) the feigning of an intent to negotiate under a flag of truce or of a surrender; ... ”
Turk called on Ukraine to apply the highest standards in its probe of the Makiivka incident: “It is essential that all allegations of summary executions are investigated fully in a manner that is – and is seen to be – independent, impartial, thorough, transparent, prompt and effective.”