by Miceál O’Hurley
ROSTOV ON DON — Contrary to its commitments to international law, Russia’s Southern District Military Court in Rostov-on-Don on 27 September Russia opened new trials against 22 Ukrainian soldiers from the Azov Battalion who defended Mariupol, a port city on the Sea of Azov Russia reduced to rubble in March 2022. The 22 Ukrainians being tried include 8 women whose roles were as cooks and logistics personnel. Originally, 24 Ukrainians had been charged but 2 have already been released in previous prisoner exchanges. An additional 18 Ukrainian soldiers of the Aidar Battalion, designated as a terrorist organisation for defending Ukraine against Russia’s 2014 invasion, face similar charges with preliminary trails having been commenced in July.
The Ukrainian soldiers of the Azov and Aidar Battalions face life-in-prison if convicted. Observers say conviction is an almost certainty given the specious basis for the prosecution, calling the proceedings show trials. Russia has charged the Ukrainian soldiers under the Criminal Code of Russia citing violations of Article. 278 (forcible seizure of power); and, Article 205.5 (participation in a terrorist organisation).
There is a certain perversity in charging Ukrainian soldiers operating on sovereign Ukrainian territory, defending their homeland, with attempting the “forcible seizure of power” given Russia’s illegal invasion of Ukraine specifically designed to forcibly seize power from Ukraine. The international community rejects claims by Russia that the sham elections they used as a ploy to annex Ukrainian territories are in any way legal. The irony and absurdity of such a prosecution is a glaring defect in any attempt by Russia to legally, morally or ethically justify their prosecutions.
Mikhail Podolyak, Advisor to the head of the office of the President of Ukraine, wrote on Twitter in June 2023, “…such abuse of combatants is an official war crime that should receive an appropriate assessment by the ICC.” International law, specifically the Geneva Conventions, prohibits the prosecution of ordinary soldiers absent any proof of war crimes or other criminal malfeasance.
The physical appearance of the Ukrainians placed on trial raises serious concerns about their treatment in Russian captivity. Gaunt, emaciated and visibly weak, Ukrainian POWs bare none of the resemblance to the well-fed and medically treated Russian POWs returned to Russia during various prisoner exchanges. Ukrainian soldiers returned in previous POW exchanges have detailed accounts of enduring torture including beatings and electric shocks. According to 16 August report by the BBC, Ukrainian ex-POWs (both men and women) held at the Pre-Trial Detention Facility Number Two, in the city of Taganrog (near Rostov on Don, Russia) allege being “… repeatedly beaten, including in the kidneys and chest, and given electric shocks in daily inspections and interrogations; Russian guards constantly threaten and intimidate detainees, some of whom have given false confessions which were allegedly used as evidence against them in trials; and, Captives are constantly left under-nourished, and those who are injured are not given appropriate medical assistance, with reports of detainees dying at the facility”. Russia routinely denies access to independent international observers to verify their compliance with their obligations in law. When visits have taken place by the International Committee of the Red Cross they have been tightly controlled and limited.
The timing of the current proceedings is telling. According to Petro Andriushchenko, advisor to the Mayor of Mariupol, “This is a direct and frank response of Putin’s cowardly regime to the hearings started at the International Criminal Court in The Hague, where today the kidnapped children from Mariupol, who had been returned, were interviewed”. The Hague has issue warrants for the arrest of Russian President Vladimir Putin and his Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova.
Putin is alleged to be responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes are alleged to have been perpetrated in Ukrainian occupied territory at least from 24 February 2022. According to the Hague, there exist reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).
For her part, Lvova-Belova is alleged to be responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that she bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute).
The Pre-Trial Chamber II decision on 17 March 2023 was based on the Prosecution’s applications of 22 February, that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children. Investigations continue to determine if these actions constitute acts of “genocide”.
The Ukrainian defendants stand accused of committing crimes by a group of persons by prior conspiracy, an organized group or a criminal community, undergoing training for the purpose of carrying out terrorist activities, organising and participating in the activities of a terrorist organization and encroaching on the life of a statesman or public figure. Russia’s occupation of sovereign Ukrainian territory has been deemed illegal in the international community and their claims that Ukrainians seeking to return their territory to the control of the democratically elected Government in Kyiv are “terrorists” is without legal merit.
Russia’s blockade and siege of Mariupol commenced in early March 2022. For almost 2-and-a-half months Ukrainian defenders located at the Azovstal plant withdrew as part of an agreement on further exchange. On May 20, the Russian Ministry of Defense announced that the Azovstal plant in Mariupol had come under the control of Russian forces claiming a total of 2,439 Ukrainian military had “surrendered.” Some Ukrainian defenders were eventually exchanged for Russian prisoners. The latest reports indicate that in excess of 2,000 Azovstal defenders remain in Russian captivity.
Following Russia’s proclamations that the Azov and Aidar Battations are “terrorist organisations” the soldiers who had defended Ukraine were put in significant legal jeopardy. In all international armed conflicts (IACs), (including Russia’s now 9-year war it is waging against Ukraine), International Humanitarian Law (IHL) grants Prisoner of War (POW) status to members of the enemy armed forces, including members of army support services (III GC Art. 4A(1) and Cmt §978). POWs are not entirely immune from prosecution however and can be tried for war crimes and breaches of laws of the Detaining Power, including pre-capture acts. Yet, they remain shielded from prosecution for “lawful acts of war committed in the course of an armed conflict,” even if such acts formally qualify as crimes under the laws of the Detaining Power (i.e., combatant’s privilege) (III GC Art. 85 and Cmt §3634).
Russia’s declaration that these Ukrainian POWs committed crimes simply because it has declared them to be terrorist is wholly defective in law. According to an article published in the Cambridge University Press in 2000 by Manuel Galvis Martinez (Defection and Prisoner of War Status: Protection under International Humanitarian Law for Those Who Join the Enemy?), soldiers are immune from prosecution for acts where they have “license” to commit various warlike acts “materially required” for their participation in the armed conflict. These acts may include injuring or killing enemy combatants, destroying military objects, physical presence behind enemy lines, enlistment with enemy forces, use/possession of uniforms and weapons and other acts lawfully undertaken by soldiers. Under Russia’s theory of law as charged in the bill of indictment, all Ukrainian soldiers could be prosecuted for their participation in the defense of their homeland for simply resisting Russia’s attempt to annex the entirety of Ukraine.
Diplomats across the globe have taken notice of this development as if allowed it would tend to normalise the right to sovereign defense against an armed aggressor. There is a real and present danger that Russian sham trials ignore Russia’s responsibility in international law, namely upholding Article 130 of the Third Geneva Convention and ensuring those charged are afforded a fair trial through due process of law as codified under Article 8(2)(a)(vi) of the Rome Statute. Countenancing Russia’s abdication of its responsibilities to POWs only serves to imperil the cornerstones of International Humanitarian Law and its obligations in various treaties, accords and conventions.
For those who agitate for a negotiated peace with Russia which includes ceding sovereign Ukrainian territory a sober analysis will reveal that not only has Russia proven itself to be an untrustworthy partner in international accords promising little hope that it would stop further Russian aggression. Yesterday, Former Russian President Dmitry Medvedev, who serves as the second most powerful person on Russia’s Security Council, promised further aggression, “The special military operation (in Ukraine) will continue until the complete destruction of the Nazi regime in Kiev and the liberation of originally Russian territories from the hands of the enemy,” Medvedev wrote on Telegram. “Victory will be ours. And more new regions will join Russia.” Russia has variously claimed most former Soviet and Warsaw Pact countries are “illegitimate” and belong to Russia. The threat remains that any abandonment of Ukrainian sovereignty, including the rights of its citizens to Russian authority, would seriously degrade their fundamental rights by subjecting them to Russia’s bankrupt and corrupt legal system and the process will be repeated as Russia pursues its “New Russia“.