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Legal tribulations

Who, where and how: we take a closer look at the details of serving justice for crimes committed during the Russian-Ukrainian armed conflict

Leonid Nikitinskiy, exclusively for “Novaya Gazeta. Europe”

More and more reports are emerging both in Russian and Ukrainian media about launched or planned trials of those who fought in the armed conflict, while vows are also made to bring the military and political leaderships of both countries to justice in the future. For instance, the Donetsk “people’s republic” (“DPR”), a pro-Russian self-proclaimed state in eastern Ukraine, recently sentenced two mercenaries from the UK and one from Morocco to death. To answer the question whether it is legal, we need to take a dive in principles of war justice.

Mercenaries from the UK and Morocco

Mercenaries from the UK and Morocco

What makes war justice possible?

The main thing to remember here is that for the last few years Russian courts have had very little to do with law or justice. Routine hearings aside, Russian courts on the one hand are used to redistribute assets when conflicts between economic entities arise and, on the other hand, they serve as TV add-ons to supply propaganda storylines. They say that the state of affairs in Ukraine was identical or almost identical until recently as well. However, a separate investigation would be required to verify it which is not going to be allowed now.

In this sense, the armed conflict only aggravated the trends that had been there and had been clear since before the beginning of the “special operation” — the trends relating to the political system in general and not just courts. But the principle of formal certainty, that is in one way or another inherent even in delirious laws that the Russian parliament has been rubberstamping lately, makes decisions of the judicial branch especially absurd.

It is easier to explain the role that Russian courts play by evoking the term “the power of naming” coined by French sociologist and philosopher Pierre Bourdieu, who describes it as the power to produce things through words. A criminal can be designated as such if he is found guilty and a verdict is delivered due to common notions of justice that are shared by the whole world. The power of naming lies with courts “de jure” here and “de facto” with those who can manipulate them.

At the same time, any international conflict, even more so a military one, immediately reveals that the power of naming is very much a sovereign one — “Ukrainian Nazis” can only emerge on Russian TV channels, while other ones will report about them as such only after verdicts from Ukrainian or international courts confirm their existence.

Legal logic is secondary here, but the propaganda product immediately loses its value when the logic is lacking. Therefore, let us look at the issue from a legal point of view.

To understand who can prosecute who and which laws can be applied, we need to distinguish between the following:

  1. criminal offences
  2. war crimes
  3. military crimes — or crimes against military service as defined by the Russian Criminal Code.

The relevant Chapter 33 of the code contains information that we can study to understand the subject better, such as Article 338 (Desertion), Article 339 (Evasion of military service duties by pretending to be ill, or by any other method), or Article 332 (Failure to execute a superior’s lawful order by a subordinate, if it has caused substantial harm to the interests of military service) which can return a verdict of up to five years behind bars if committed by a group of people. These are more of internal crimes that citizens are held accountable before their own states, while specially designated courts of these countries return verdicts in these cases. With that in mind, military crimes are not our focus right now.

Criminal offences constitute those that are punishable in all countries around the world: murder (out of combat), rape, stealing, robbery. The Russian Criminal Code does not have the “looting” chapter even though it was included in the Criminal Code of the Russian Soviet Federative Socialist Republic. However, when the new code was drafted in 1996, Moscow was reinstituting constitutional order in Chechnya and was not officially intending to go to war with anyone. Still, those responsible for crimes are held accountable according to the laws of the country where these offences are committed, and the Ukrainian Criminal Code does have this article (432).

Finally,

war crimes can only be referred to as international humanitarian law concepts rather than an integral part of national legal systems.

Only international courts and tribunals, which often make decisions and sometimes are even created on the ad hoc basis, are authorized and legally qualified to deliver verdicts in this sphere.

How Ukraine administers justice: questions to charges, sentences

On May 23, a Kyiv court sentenced a Russian serviceman Vadim Shishimarin, 21, to life in prison for shooting and killing a civilian. He was charged under Article 438 of the Ukrainian Criminal Code (violating the laws and customs of war). This particular charge cannot be found in the Russian Code. However, since the murder, which was committed out of combat, is a general criminal offence, at least the jurisdiction of the Ukrainian court is beyond any doubt in this case.

Vadim Shishimarin

The fairness of the verdict is another question, however. Shishimarin told the court that he had been given the order to open fire by his superior. In Russia, the defense team would refer to Article 42 of the Criminal Code which is also present in the Ukrainian one: “Infliction of harm … shall not be qualified as an act of crime provided it was caused by a person acting in execution of an order or instruction binding on him… Person who committed intentional offence in execution of order or of instruction known to be illegal, shall be liable under usual terms… Failure to execute order or instruction known to be illegal shall preclude criminal liability.”

The Ukrainian court was faced with several questions that it did not and could not answer because the superior who gave the order was not tried along Shishimarin. Was this order given in the proper form? Did the order seem (for Shishimarin, taking into account his competence, experience and so on) illegal? It is possible that the Ukrainian side was rushing with the verdict due to propaganda motives rather than legal aspects of the case since the possibilities to find and question the superior were not fully explored, leaving no chances of answering the question whether Shishmarin is guilty or whether there were extenuating circumstances.

On May 31, a court in Ukraine’s Poltava Region sentenced Russians Alexander Bobykin and Alexander Ivanov, Grad multiple rocket launcher driver and gunner, to more than 11 years behind bars. An electrical substation, power lines, residential houses and an educational facility were damaged after shelling of two villages in the Kharkiv Region. The Russians were found guilty of not adjusting fire after receiving the order to shoot, “knowing that the weapon would work indiscriminately.”

This verdict was also reached on the basis of violating the laws and customs of war and raises even more doubts: the question remains whether the actions of these gun-layers who were later taken captive qualify as a general offence or a war crime. In the latter case, criminal liability is incurred on different grounds, after verdicts of different courts and, possibly, even for very different people.

How Russia administers justice: mercenaries, closed trials and arbitrariness

In Russia, the legal side of things is compromised even more. We believe that the level of arbitrariness and lawlessness is directly consistent with the lying nature of the propaganda machine which orders, consumes and broadcasts this “judicial content.”

Two out of three people who were recently sentenced to death by the “DPR Supreme Court” are British nationals irrespective of possible Ukrainian citizenship. In the United Kingdom, verdicts are delivered in the name of the Queen. And what is the case with the “DPR”? This is the issue of sovereignty that the “DPR” (“LPR” or the future Kherson PR) do not enjoy. The fact that they are recognized as “states” by Russia is not enough. The sham trial will never be recognized by anyone and, let us hope, that its verdict, which is far from being a sham, will never be carried out.

Since it was a closed trial, we can only guess what Shaun Pinner, Aiden Aslin and Brahim Saadun stood accused of based on the sparse and lame reports of Russian news agencies. The court apparently found them guilty of mercenarism, attempting to violently seize power as well as receiving terrorist training.

The objective side of the crime is not very clear: what power were they trying to seize and where? We are talking about Mariupol — the part of the “DPR” that even Russia recognized as a territory of its neighbor until February. The subjective side is just as mirky. Mercenaries fight for other countries and for renumerations (compensations cannot be recognized as such). However, all three foreign nationals have been living in Ukraine for several years, one of them even has a Ukrainian passport. Moreover, they had signed contracts to serve in the Ukrainian army before the hostilities broke out.

London is now discussing a potential pardon appeal. However, it is impossible from the international law viewpoint as there is no such state as the “DPR” to appeal to.

This is only the beginning, however. The real issue is going to be the handling of the case of more than 2,500 Azovstal steel plant fighters (according to the Ukrainian reports) who recently surrendered. They are currently being held in Russian detention facilities in violation of the Geneva Convention on Prisoners of War. Head of the Russian Investigative Committee Alexander Bastrykin hastily reported that the agency was interrogating them. This, in turn, means that a criminal case has been launched, otherwise there would be no legal grounds for the interrogations. No details about the case have been disclosed yet. Russia’s lower house suggests prosecuting them irrespective of the death penalty moratorium that is still in effect in Russia and denies possible swaps for Russian captives. The Kremlin, as it turns out, is barely concerned about Russian servicemen who are held prisoners in Ukraine. The main sticking point here is what these Ukrainian fighters should be sent on trial for and under whose laws, unless the jurisdiction of Russian courts is extended retrospectively to Mariupol, if it is still held by Russian forces then. However, this seems to be too much even for the masters of time and space in the Kremlin.

Sure, prisoners are a valuable asset for potential swaps and trade for something that will sooner or later be recognized as the end result of this war in international law. But from the news-worthy point of view this asset is rather toxic. The Russian propaganda needs an open trial. Holding it behind closed doors will raise too many eyebrows, even more so that the legal grounds behind the trial are far from being clear-cut. However, a public court hearing will provide a perfect podium for the “Ukrainian Nazis” to speak, the one that Kyiv can only dream about now. The Soviet Union, which Russia and Ukraine are directly related to, had experience in preparing for Stalin’s show trials in the 1930s when physical and psychological torture was used (read Darkness at Noon by Arthur Koestler published by Novaya Gazeta). However, the Azovstal fighters, who were staring death in the face for 62 days, can potentially turn out to be too hard to break for the Russian Investigative Committee and the Federal Security Service (FSB), who are much more used to blackmailing businessmen and senior scientist “spies” in detention centers.

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Heading towards tribunals

Russia’s main mistake was to brand the future European, or even global, tragedy as a “denazification operation”. It is speculated that the propaganda machine stopped directly referring to this term because the general public is not sure what it means. On the contrary, it is very clear what it stands for but what is becoming less and less clear is where those “Nazis” are. The historic decision has lost its goal, and when there is none, it is largely impossible to speak of any application of law.

I believe that Kyiv’s major mistake lies with trying to incorporate the category of violating the laws and customs of war into the national Criminal Code. Based on the “no one ought to be a judge in his or her own cause” principle, it is impossible to even imagine a court on the national level that could use this category.

These contradictions cannot be settled from the legal point of view and can only be addressed by moving to a whole different level of international humanitarian law where norms of morality or human civilization, if you will, are always used ad hoc to a certain extent. Crimes against humanity that were coined during the Nuremberg trials are essentially not legal but ethical and political assessments. Nevertheless, they can be applied not only to combatants who physically pull the trigger but to top military officials as well as political leadership, who did not actively murder anyone but bear full responsibility for orders and the very decision to unleash hostilities.

We can debate whether this premise is legitimate from the philosophical and historical viewpoints, but our history already knows precedents of it being applied. The main example, of course, is the Nuremberg trials that were carried out over 316 days and prosecuted 24 Nazi Germany leaders as well as several institutions (SS, SA, SD, Gestapo, top leadership of NSDAP, Wehrmacht High Command and General Staff). This move allowed to later organize more specific trials, including those over Nazi judges, and bring to justice any members of these organizations on national levels.

Following the 1991 Yugoslav Civil War events and the 1994 Rwandan genocide, the international community moved to adopt the Rome Statute in 1998 and establish the International Criminal Court in The Hague. Its jurisdiction comes in effect for war crimes committed after 2002. Therefore, the tribunals over the tragic events in Yugoslavia and Rwanda were created and delivered their verdict on the ad hoc basis. Russia signed the Rome Statute in 2000 but never ratified it. After the accession of Crimea was recognized as occupation in 2016, Moscow withdrew its signature, completely breaking away from the institution.

Still, it did not get in the way of other invested states, primarily Ukraine and the Netherlands, to convene an ad hoc tribunal in Amsterdam over the downing of Malaysia’s Boeing 777, as the MH17 flight was shot down over Ukraine and most passengers were of Dutch origin. Despite fierce opposition from Moscow, the tribunal is still investigating the war crime case brought against three Russians and one Ukrainian citizen. This trial now serves as a rehearsal of the judicial proceedings which one way or another, sooner or later, will be conducted after the Russian-Ukrainian armed conflict (2022-…). Unless the whole humanity is nuked out of existence, of course.

Russia and Ukraine will be offered to be parties to this trial. However, their agreement or refusal will not stop it from ultimately going ahead.

The trial’s conditions, order of proceedings, the legislation applied, and the location will be dictated ad hoc by those who ultimately will have more “soft power” rather than military might, although this will potentially be important as well. In the end, it will be these strong international players who will have at their disposal the power of naming, or, simply put, the right to brand these events a war, genocide or anything else, to designate one side as war criminals and the other as victims.

History is a chain of recorded chronotopes, or epochs, that are confined by space and time coordinates. This is where history intersects with propaganda and law which are also striving to somehow organize time and space and arrange, or “label”, participants in these coordinates. We have covered the issue of space as “jurisdiction” to get a better understanding of it, more or less. Now, time must do its part.

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