Oscar Jenkins and the Prisoners of War

By Christina Cushen

Source: Canva

Eleven years ago, Ukraine’s territory was under threat from its own neighbour. This invasion sparked various international debates over a series of violations that continue to date. Over the course of the 11 years, we had seen an escalation from Ukraine’s neighbour, Russia, in 2022. Many Ukrainian people are wondering when their suffering is going to end and if ever. Now we have seen an Australian fighter, Oscar Jenkins, being held as a diplomatic hostage in Russia; however, sadly, he is not the only one, as only last month did Ukraine and Russia swap 1000 prisoners of war. 

Oscar Jenkins was feared dead in January this year after being captured, after the sergeant stated, “He has been executed. His body has been recovered. It is currently unknown where it is…They tortured him for days to make an example of him. The Russian troops don’t care for laws, morals, nothing, they’re just there to kill.” However, a month later, a video came out from Russia of Oscar being tortured, with him stating that: “I feel a bit weak, I've lost a lot of weight, I have a broken arm still, I think, and my hand is not good.”

Oscar has been described as a “mercenary in an armed conflict”, but instead of a mercenary being treated as a prisoner of war, Russia treats them as a criminal, which is a clear breach of the Geneva Convention. However, it is important to remember that, given the brutal actions of Russia, Ukraine is rebelling by holding Russian prisoners of war under the act of diplomatic leverage, which is exactly what Russia is doing to Oscar as he was fighting for Ukraine. 

Under Article 13 of the Geneva Convention concerning the Treatment of Prisoners of War, it states that “prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited. It will be regarded as a serious breach of the present Convention.” Russia continues to violate this as Oleksandra Matviichuk, Ukrainian Human Rights Lawyer, told the Human Rights Watch that she had spoken to many survivors of the Russian captivity who reported that they were “beaten, tortured with electric shocks, and raped…They told about having their nails torn out, their kneecaps shattered. They described how they had been deprived of food and sleep and how the dying had no access to medical assistance.” This has been further supported by a former Prisoner of War, Volodymyr Shevchenko, who told Amnesty International that “they started torturing me right away. They beat me with stun guns, these special sticks; it was very painful. I saw how the guys started to die after that. Their hearts just couldn’t take it anymore.”

However, it sadly does not stop there, as under Article 30 of the Geneva Convention states that "prisoners of war suffering from serious disease, or whose condition necessitates special treatment, a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment can be given, even if their repatriation is contemplated in the near future….Prisoners of war shall have the attention, preferably, of medical personnel of the Power.” What we have seen from Oscar’s condition, his right to obtain medical treatment has been dismissed, given his statement on the video that “I feel a bit weak, I've lost a lot of weight, I have a broken arm still, I think, and my hand is not good.” 

In February, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Alice Jill Edwards, stated that “In all eight of the cases I examined, detainees have serious medical conditions, some of which are reported to be life-threatening….In one case, the violence was allegedly so severe that the victim’s spine was fractured. Three individuals with disabilities are allegedly not being provided appropriate health services considering their impairments.”

Russia’s actions are not something new to the Western world. In 2022, two nationals from the United Kingdom and a Moroccan citizen who were foreign fighters were captured by the Russian Government. After a three-day trial under closed doors in a Russian Proxy court, they were sentenced to death. However, under the 11 hours, the Saudi Arabian Government negotiated a release with seven other prisoners of war. These prisoners of war experienced torture, starvation, electrocution, and being denied legal or embassy access. This highlights the pressure that the prisoners of war face to advocate for their release.  

Given Russia’s heinous violations of fundamental international law, we are seeing prisoners like Oscar Jenkins suffering and being tortured with the serious risk of their death. Russia has an obligation as an independent state to treat prisoners from other states humanely and treat them with dignity. Furthermore, and more importantly, Oscar Jenkins must be treated like a prisoner of war and not a criminal, as under international law, he is a Prisoner of War, not what Russia sees him as. There is a distinction in international law between a Prisoner of War and a criminal. Russia must acknowledge this difference and treat Oscar and other prisoners the way they deserve to be treated. In the meantime, given Russia’s lack of insight into its own International law breaches, the rest of the world has the responsibility of advocating and fighting for these individuals to ensure that justice is served. This has led to the recent establishment of the Special Tribunal for the Crimes of Aggression against Ukraine. 

The Western world must not stop fighting for these victims, as if we rest, we allow other countries to arrest innocent civilians for their own diplomatic leverage. We have seen this with Peter Greste, David Hicks, Kylie Moore-Gilbert and Otto Warmbier, to give a few. We must call this out and not make this the new normal, as one day you could become a victim. International law demands the protection of civilians, and the international community must make sure civilians have the ability to travel and live overseas without fear.  

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Christina is a passionate advocate for people with disabilities and marginalized communities, drawing from her own experience as a neurodiverse woman. She combines her lived insight with practical legal experience, including roles in community legal centres and a clerkship at the Department of Veterans' Affairs. Christina is dedicated to challenging stigma and advancing social justice within the legal sector.