“Prisoners”, “hostages” or “arbitrarily detained persons”: what is the correct way to call civilians in russian captivity? 

The problem of abduction, imprisonment and detention of Ukrainian civilians by the russian federation remains critical. Thousands of civilians have been illegally detained and deprived of their liberty, often without access to legal and medical assistance, and their places of detention in many cases remain unknown and inaccessible even to international organizations. Detained civilians, as well as prisoners of war, are subjected to torture and harsh conditions of detention that violate fundamental human rights. However, despite the fact that the number of such people is growing every day, the russian federation does not provide Ukraine and third parties with any registers and data on detained persons, which makes it impossible to accurately record the victims and their release. These factors foster uncertainty for victims and their families while enabling impunity for the Russian military 

Journalist Serhii Tsyhipa from Nova Kakhovka is among those illegally captured by russian occupiers. He was abducted on March 12, 2022 for his pro-Ukrainian position and journalistic activities. Contact with Serhii was lost immediately after his arrest, and his whereabouts were not reported for a long time.Only in October 2022 did it become known that he was illegally transported from the occupied territory of the Kherson region to the pre-trial detention centre #2 in Simferopol. And in December 2022, human rights activists learned that a criminal case had been opened against Tsyhipa under the article on espionage (Article 276 of the criminal code of the russian federation).Later, in October 2023, an occupation court in Crimea sentenced him to 13 years in prison. Serhii Tsyhipa was a victim of enforced disappearance, illegal deportation, and prolonged deprivation of liberty without any charges.Moreover, his trial was held behind closed doors. Serhii Tsyhipa is not a military person, and his detention has nothing to do with military necessity. 

What is the correct term to describe individuals like Serhii: “hostages”, “civilian prisoners”, “political prisoners” or “arbitrarily detained persons”? 

In such circumstances, the correct use of terminology becomes particularly important, not only to accurately describe the scale and nature of violations, but as it is the first step towards establishing justice. Determination affects the qualification of the actions of war criminals, their prosecution, and the possibility of compensation for the harm caused to the victims. Correctly determining the status of civilians in russian captivity is important to avoid manipulation by the russian federation regarding the fate of such individuals. 

There are still ongoing discussions about the correctness of the terminology. In this article, we try to figure this matter out and define the terms. 

Let’s start with the main thing: international humanitarian law contains a direct prohibition on taking hostages from among the civilian population in times of war (Article 34 of the Fourth Geneva Convention). Under IHL, civilians belonging to an opposing party to a conflict have the status of protected persons. Therefore, deprivation of their liberty is prohibited, except in cases of internment, which is strictly regulated by the Fourth Geneva Convention^[1]. 

Is it correct to call such persons “civilian hostages”?  

There is a term civilian “hostages”in the information space. However, Ukrainian human rights activists recommend not using this term to refer to civilians who were deprived of their freedom by the occupiers. The term “hostages” is applicable where the crime of hostage-taking is present – when criminals unlawfully hold someone with threats of harm or continue to hold them in order to obtain something specific a third party. It is important to emphasize that the hostages are civilians. 

In the context of an international armed conflict between the russian federation and Ukraine, the defining element of such a war crime as hostage-taking in accordance with the Rome Statute of the ICC is the demand by russian military personnel, security forces, officials or other persons under the control of the russian authorities to Ukraine, a third state, an international organization, an individual or legal entity or a group of persons to perform certain actions or refrain from performing certain actions as a condition for ensuring the safety or release of the detained persons. 

CrimeaSOS analyst Yevhenii Yaroshenko notes: “In some cases, this may take place [the use of the term “civilian hostages”, – ed.] when victims or witnesses have received testimony that individuals were deprived of their liberty in order to exchange russian prisoners of war, obtain a ransom, or for something else. This practice amounts to hostage-taking, which is recognized as a war crime under international law.^[2] However, this cannot be said about all cases of detention of civilians.For example, we do not have information about whether journalist SerhiiTsyhipa, former military officer Oleksii Kyseliov, or Ukrainian activist Iryna Horobtsova were detained to coerce a third party into taking any action”. The legal complexity is created by the fact that official demands to a “third party” are rarely declared, and in cases where such demands are hidden or unofficial, this significantly complicates the legal qualification of the situation as “hostage-taking”. 

What’s wrong with the term “civilian prisoners”?  

The term “civilian prisoners” is also widely used in the media, in contrast to “prisoners of war”. Using this term would also be incorrect in most cases.After all, prisoners of war are by definition military personnel (combatants). However, IHL knows of cases where non-combatants may be lawfully detained, equating their status to that of prisoners of war. 

“Ukrainian legislation does not contain the category of “civilian prisoners”.There is a special law that determines the legal status of persons who have been found to be deprived of their personal liberty as a result of armed aggression against Ukraine. These individuals include both those belonging to the security and defence forces of Ukraine and civilians”, – CrimeaSOS analyst Yevhenii Yaroshenko also notes.  

Therefore, the use of the term “civilian prisoners” does not comply with either the norms of international law or the norms of national legislation.The use of this term can be harmful, causing confusion in determining the legal status of illegally detained russian civilians and in the legal qualification of the actions of the aggressor state. 

Why the term “political prisoner” is inappropriate? 

Applying the term “political prisoners” to illegally detained civilians would also be incorrect. First of all, this term does not describe the specifics of the detention of civilians in conditions of armed conflict.  

The criteria for defining a “political prisoner” are formulated in Resolution 1900 (2012) of the Parliamentary Assembly of the Council of Europe and apply in peacetime conditions when it comes to political repression. The criteria include deprivation of personal liberty in connection with the expression of views, practice of religion, participation in peaceful assemblies, etc.Practice shows that in conditions of armed conflict, in particular during occupation, civilians may be deprived of their liberty not only in connection with the exercise of their rights. It is important that civilians detained by the russian federation are protected by IHL, rather than just by human rights standards. Therefore, the use of this term would not accurately reflect the legal status of detained civilians, nor would it indicate the international violations committed by the aggressor state. 

In what cases can the actions of the russian federation regarding the detention of civilians be considered legal? 

Yevhenii Yaroshenko draws attention to the fact that some civilians may have been detained on legal grounds: “For example, this applies to cases where the detention occurred in connection with attempts on the leaders of the occupation administration, sabotage, or espionage activities. In situations, where due detention procedures and standards of justice were followed, such detentions would not be considered arbitrary”. 

Detention of civilians is possible if they violate the relevant provisions of the criminal legislation of the occupied territory (i.e. Ukrainian legislation).As an exception, this may apply to certain provisions of the criminal legislation of the occupying state (i.e. russian legislation), which it may extend to the population of the occupied territory in order to ensure its security and fulfil its obligations under the Fourth Geneva Convention (Article 64). 

What is the correct term to use instead?  

Civilians who are not lawfully interned are “detainees” or “persons deprived of their liberty“. It is worth further qualifying their situation terminologically, taking into account the context.If there are grounds to qualify the detention as arbitrary, this can be pointed out.  

Yevhenii Yaroshenko notes that if there are reasons to believe that the deprivation of liberty of civilians was carried out by russian military, security forces, or officials in violation of IHL and international human rights law, it is best to use the term “civilians arbitrarily deprived of liberty“. This is the definition contained in the “Moscow Mechanism” report of the OSCE. This term can be shortened to the wording “arbitrarily detained civilians“, while preserving the essence of the elements of the offense. 

Unlawful deprivation of liberty in the context of an international armed conflict is a war crime. Arbitrarily detained civilians are typically subject to a range of other war crimes, including torture, inhumane treatment, hostage-taking, deliberate deprivation of the right to a fair trial, unlawful deportation, etc. 

The media and the public should use this terminology.  And in cases where there are signs of hostage-taking or other crimes, it is important to clearly outline this and contact experts for additional clarification.Detailed recommendations can be found in a special brochure developed by Ukrainian human rights activists. 

The use of this terminology shall prevent confusion and provide legal clarity in determining the status of civilians. As Yevhenii Yaroshenko noted: “The legal definition determines the qualification of the actions of persons controlled by the russianfederation and, accordingly, their prosecution in Ukraine, third countries, or the International Criminal Court (illegal deprivation of liberty, hostage-taking, enforced disappearance, torture, deportation, etc.).This also determines the level of compensation for moral and material damage to victims and their relatives, which would be determined by Ukrainian state bodies, international judicial institutions, and the Register of Damages”.  

However, it is important to note that as of now there is no international mechanism for the release of civilians, and the releases actually take place in the process of exchange under political agreements. 

*This article was written by Iryna Dumych, information coordinator at Crimea SOS, and Yevhenii Yaroshenko, analyst at Crimea SOS, as part of the ‘Ukraine 5 AM Coalition’ column published on the Livyi Bereh website 

^[1]The possibility and legality of internment by a State party to the European Convention on Human Rights (ECHR) was examined in detail by the Grand Chamber of the ECtHR in the case of Hassan v. the United Kingdom. 

^[2]OSCE experts have received evidence indicating that Ukrainian civilians are deliberately detained specifically for the purpose of being exchanged for Russian prisoners of war.