Russians Killed While Surrendering: Was it a War Crime?

Near the town of Svatove in Luhansk, Ukrainian troops surrounded a farmhouse with a squad of Russian soldiers inside.  They compelled the Russians to come out and surrender. The Ukrainian soldiers prepared to accept their surrender by breaking the safety of concealment and cover and as a precaution one of their men was lying prone with a machine gun to cover the Russian soldiers as they came out.

These Russian troops appeared to be well equipped with matching uniforms, body armor, helmets and other kit that suggests they were regular Russian army and not recently mobilized civilians who seem to be getting hand-off gear from the Cold War.  At least ten men came out one by one and lay on the ground with their arms stretched out before them.

The Ukrainians also appeared to be outnumbered in the encounter by at least 2 to 1.

The last Russian soldier to come out had a weapon and opened fire on the Ukrainian troops. In the ensuing gun battle one of the Ukrainian troops is reported to have been killed along with all of the Russian soldiers.

Video of the incident spread quickly on social media platforms like Twitter, Instagram, and Facebook, as well as Telegram which is heavily used in both Ukraine and Russia.  Some of the videos were edited to make it appear as if the Ukrainian troops just slaughtered the Russian soldiers.

Russian Foreign Ministry spokeswoman Maria Zakharova made this statement regarding the footage -“We demand from international organizations to condemn this egregious crime, to conduct a thorough investigation of it,” 

Dmitry Medvedev, Deputy Chairman of the Security Council of the Russian Federation vowed retribution, “The Ukrainian military who shot the Russian prisoners deserves only the ‘death penalty,’ even if it takes years to find them.”

Ukraine’s own response was given by its Parliament Commissioner for Human Rights on Sunday in denying Ukraine murdered prisoners of war and were defending themselves against Russian troops who feigned surrender to attack Ukrainian troops.

https://twitter.com/markito0171/status/1593515224790974465?s=20&t=GNQ1nnJnRAnDRAS_o_Px3g

The evidence of the videotape, which is the only evidence that exists at the moment of the incident taking place, tells a different story.  If a war crime did occur, it was probably the crime of “Perfidy” and it was committed by the Russians.

Under the rules of war, Perfidy is described as a serious offense. This passage is taken from International Law Studies, Volume 73, Annotated Supplement of the Commander’s Handbook on the Law of Naval Operations, A.R. Thomas and James C. Duncan Editors but is applicable to land warfare as well.

12.1.2 Prohibited Deceptions. The use of unlawful deceptions is called “perfidy.” Acts of perfidy are deceptions designed to invite the confidence of the enemy to lead him to believe that he is entitled to, or is obliged to accord, protected status under the law of armed conflict, with the intent to betray that confidence. Feigning surrender in order to lure the enemy into a trap is an act of perfidy.

It goes on to say why Perfidy must not be committed and that those engaging in it are themselves committing a war crime

12.7 FALSE CLAIMS OF NONCOMBATANT STATUS
It is a violation of the law of armed conflict to kill, injure, or capture the enemy by false indication of an intent to surrender or by feigning shipwreck, sickness, wounds, or civilian status. A surprise attack by a person feigning shipwreck, sickness, or wounds undermines the protected status of those rendered incapable of combat. Similarly, attacking enemy forces while posing as a civilian puts all civilians at hazard. Such acts of perfidy are punishable as war crimes.

The video above appears to show a classic case of Perfidy in combat. Even if the other 10 soldiers fully intended to surrender, the actions of the 11th in opening fire on the Ukrainian troops about to take their surrender doomed them all to die.  At the moment he opened fire, the seemingly outnumbered Ukrainians could not know if the rest would throw grenades at them or draw pistols and open fire or if there were a dozen more armed Russian soldiers behind the 11th man with automatic weapons as well.  They had no legal or moral duty to determine that before they shot them all.

Because that is impossible to do in that split second of time.

It is also unclear as to whether the Russian soldiers were actually “prisoners” at the moment they had been shot and killed.  The Ukrainians had only managed to get 10 of them to come out and lie on the ground, they had not been searched for weapons, or restrained in any manner that might render them unable to resist further.  They were in the process of surrendering, but were not safely in the custody of the Ukrainian soldiers.

Imagine it is WWII and a US Destroyer is depth-charging a German U-boat.  The U-boat crew decides they no longer want to fight and throw up their hands in surrender, 500ft beneath the waves. Are they POWs at that moment?

Or are they POWs when the crew of the US destroyer is able to accept that surrender in some constructive way, like the submarine surfacing and thrusting a white flag up through the main hatch? Even then, the Destroyer might cease-fire, but keep its guns trained on the submarine until the U-boat crew had been brought aboard, searched for weapons, and confined below. This would render the crew of the Destroyer safe from the POWs.  Until those measures of accepting the surrender of an enemy are accomplished, their status as belligerents remains in effect.

Perfidy is an especially awful war crime for two main reasons;

First, it requires those accepting the surrender to break concealment or cover and expose themselves to great danger in order to take them prisoner.  In this case, it cost one of the Ukrainian soldiers his life to attempt to accept that surrender.

The second reason Perfidy is a bad thing is that word of it gets around very quickly and will make the Ukrainian Armed Forces more reluctant to accept the surrender of Russian troops. Many of whom would very much like to surrender.

This has happened in our own history. In the Pacific Theater during WWII with the Japanese who practiced Perfidity routinely.

On August 7th 1942, an invasion force comprised of the 1st Marine Division made a surprise landing on the island of Guadalcanal in the Solomon Islands.  The Japanese troops on the island consisted mainly of a construction battalion trying to complete an airfield and a small garrison force.  When the Marines landed, rather than meet them on the beaches and fight to the death, they fled into the jungle leaving their breakfast and tea still hot on the kitchen fires. A Japanese Warrant Officer was captured and under interrogation revealed that the garrison and the civilian workforce would gladly surrender if given the chance.  While the Marines were planning to aggressively patrol in force to locate and destroy this Japanese force of still unknown size, Division Intelligence Officer Lt Col Goettge believed that much bloodshed could be avoided by this surrender of a large part of the Japanese force on the island.

Goettge got approval to take a smaller patrol into the area where the Japanese wanting to surrender were believed to be.  At night and with inaccurate maps, he may have landed his much smaller patrol of just 25 men in the wrong location.  The patrol was attacked almost immediately after it landed on the beach.  Lt Col Goettge was killed and only 3 men from the patrol survived the ambush.  Their bodies were apparently dismembered and parts of them were found by a company-sized relief force sent the next morning.

Their bodies were never recovered.

The story that went around the 1st Marine Division was that the Japanese had feigned surrender to stage an ambush. There were other stories about the Japanese pretending to surrender only to produce a grenade among their captors and pull the pin, or feigning injury until a navy Corpsman came to render aid and then stab him with a concealed knife.  To a large extent in the Pacific Theater the Marines all but refused to take any Japanese soldier prisoner, even in spite of inducements like a case of beer, a bottle of whiskey, or 3 days leave and ice cream for every prisoner they took.

There are numerous pictures like the one below of Japanese soldiers surrendering in their underwear.  This is not because they were surprised sleeping in their bunks, the Marines would demand they strip to ensure they were not concealing a knife, pistol or grenade. In the photo, you can see at least two of the Marines still have their weapons leveled at the Japanese soldier as they appear to be directing him to move to the rear in the midst of an active fight going on. Look to the left of the elbow of the Marine in the center of the picture, you can see another nearly naked Japanese soldier lying on the ground waiting to be told to get up by what is probably a language interpreter who appears unarmed in this photo or is an officer with just a sidearm.

The Japanese Army had ordered their troops never to surrender and on islands all over the Pacific, Marines and soldiers were all too willing to assure they followed that order to the letter.

What happened in this situation in Kherson could have several causes.  The general lack of training and discipline among Russian troops is by now well known. Troops that rape, loot, and pillage as a matter of course probably have no idea what Perfidy even is.  We should not expect that the Russians would spend much time briefing them on the proper conduct when surrendering to the Ukrainians either, for reasons that should be obvious.

Perhaps they thought they were surrendering to a much larger force and when they realized that they outnumbered their would-be captors by 2 to 1 they changed their minds and formed a hasty plan.

Perhaps the last guy with the automatic weapon was an NCO or officer who lost control of his men who decided to surrender and his was an act of exasperation.

We may never know.

What is certain though is that news of this event will spread among the Ukrainian Armed Forces who, like the Marines in WWII will be much warier about taking Russian offers of surrender at face value.  It may not be too long before we see Russian troops coming out in their underwear with their hands up like Japanese soldiers in the Pacific war.  Under the rules of war POWs aren’t supposed to be handcuffed, zip-tied, or chained, but an enemy will be treated according to their own conduct.  It doesn’t fall entirely on the captors to risk their lives with an enemy who doesn’t play by the rules.

The war in Ukraine has been going on since the 2014 annexation of Crimea, Donbas, and Luhansk. It’s really two wars wrapped into one, a civil war with ethnic Russians who are citizens of Ukraine and a mass invasion by Russia itself. It’s a dirty war and Ukraine itself is learning the rules of armed conflict itself as it seeks closer relations with the West and admission into the EU and NATO, but in this case, it appears as if the conduct of its soldiers was appropriate and within the rules.  Ukraine has made a point of offering generous surrender terms to Russian troops and has opened its POW camps to international monitors, which is far more than Russia has done up to this point.