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Following the publication of a video online showing Russian soldiers in Makiivka lying dead with their hands in the air and with uniforms covered in blood, Ukraine has announced a pre-trial investigation into perfidy committed by the Russian troops. A criminal investigation has been launched under the article on “violation of 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, the Russian servicemen opened fire on the Armed Forces of Ukraine (AFU) during a simulated surrender. The Luhansk regional prosecutor's office has entered that 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 in the Luhansk region, Russian military personnel opened fire on the Ukrainian defenders while imitating surrender. 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 legal assessment will be given to all its participants.”
According to article 37 of the Protocol Additional to the Geneva Conventions of 12 August 1949, it is forbidden to kill, wound or take prisoners of war by resorting to perfidy. Perfidy is defined as “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.”
Earlier, Mikhail Podolyak, advisor to the head of the Ukrainian presidential office, said in an interview to journalist Alexander Plushev and Tatiana Felgengauer that the Ukrainian authorities have a full version of the video depicting the shooting. According to Podolyak, some of the Russian servicemen were actually intended to surrender, while others opened fire on the Ukrainian military. Podolyak assured that the video is being investigated, but he did not publish its full version.
“When one watches a fragment of the video, one may get the impression that there is a violation of the Geneva Convention when surrendering. But when one watches 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. Paragraph 47 of the Geneva Convention is very clear that when surrendering, if there is a threat from the surrenderers, there is no such parameter as ‘prisoners of war.’ In other words, this is an ordinary, essentially military engagement that took place.”
On November 18, a video showing Ukrainian soldiers taking Russian servicemen prisoner was published on social networks and Telegram. In another published video, taken from the same location, corpses are seen already lying on the ground, with their hands up and their uniforms covered in blood. The Russian Defense Ministry accused the Ukrainian Armed Forces of war crimes based on the footage, claiming that “massacres of unarmed Russian prisoners of war” took place. Russia’s Investigative Committee has opened a criminal case on the murder and mistreatment of Russian POWs on the territory of the so-called “LPR.”
The New York Times later compared the video with satellite images from Maxar Technologies as well as drone footage. The publication’s journalists concluded that the footage was shot in Makiivka in the Luhansk Region, and was authentic. Utrecht University war crimes prosecution expert Iva Vukusic then stated that it is difficult to determine whether a war crime was 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 afterwards, when the threat had been neutralized. In the latter case, it is more likely a war crime, the expert argued.