How can trials of prisoners from Azovstal be organized?

How are the trials of the military involved in hostilities,volunteers and war criminals

On May 20, the Russian Ministry of Defense announced the capture of 2,439 Ukrainian soldiers who were previously blocked at Azovstal. On the same day, according to the Russian Defense Ministry, the last group of fighters of the Ukrainian volunteer national regiment "Azov" (its symbols are recognized as extremist and banned in RUSSIA) surrendered, numbering 531 people.

President of Ukraine Volodymyr Zelensky earlier said that Ukraine needs the soldiers from Azovstal alive, and Deputy Prime Minister of Ukraine Iryna Vereshchuk expressed hope for the exchange of captured wounded Ukrainian soldiers after their recovery.

On May 17, State Duma Speaker Vyacheslav Volodin noted: “As for the Nazis, our position here must remain unchanged: these are war criminals, and we must do everything to bring them to justice.” Andrey Klishas, ​​Chairman of the Federation Council Committee on Constitutional Legislation and State Building, spoke in a similar style - he said that the fighters of the Azov battalion should be tried in the DPR and LPR, where there is no moratorium on the death penalty, since it was there that they "committed their crimes." The HEAD of the DPR, Denis Pushilin, called for an international tribunal over Ukrainian fighters.

On May 26, the Supreme COURT of Russia will consider the case on recognizing the Azov Regiment as a terrorist formation.

RBC figured out in which cases it is possible to talk about war crimes, under the jurisdiction of which courts they fall under the jurisdiction and what rights should be guaranteed to the accused.

What can a warring soldier be convicted of?

In itself, the participation of military personnel in a military conflict is not a crime - combatants, i.e. persons directly participating in hostilities have the right to use weapons for military purposes, Anatoly Kapustin, president of the Russian Association of International Law, explained to RBC. The military is only responsible for the commission of crimes not caused by military necessity. And this applies not only to military personnel, but also to the militia and volunteer detachments, which openly carry weapons and have distinctive signs.

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War crimes involve serious violations of the Geneva Conventions, which establish international legal standards for the conduct of war. These violations include the following:

torture and inhuman treatment; intentional infliction of severe suffering or damage to HEALTH; arbitrary and massive destruction without military necessity; making the civilian population the object of attack; an attack on a person who has ceased to take part in hostilities.

If the extermination of the civilian population, enslavement, deportation, torture, rape, forced pregnancy, persecution for national and other reasons are committed as part of a large-scale or systematic attack on the civilian population, then these actions are considered crimes against humanity.

It also prosecutes genocide, a prohibited act committed with the intent to destroy a national, ethnic, racial or religious group.

For war crimes and crimes against humanity, the principle of universal jurisdiction applies, which gives States the ability to try perpetrators regardless of where the violation was committed. This principle prevents impunity and prevents perpetrators from finding safe haven in third countries.

How combatant trials should work and what rights the accused should have

According to the Geneva Convention concerning the Treatment of Prisoners of War, the military courts of the detaining country must not sentence prisoners of war to any other punishment than those prescribed for the same acts for their citizens.

The Convention also establishes a number of prohibitions during prosecution. Thus, a prisoner of war cannot be convicted:

for an act that is not punishable under national or international law; by a different procedure from that which is established for the military personnel of the Detaining Power; without the opportunity to defend themselves and without the provision of a qualified defender.

The accused must receive the indictment set out in a language understandable to him ahead of time. His lawyer, in turn, must be given at least two weeks before the first meeting to prepare for the defense and the opportunity to confer with witnesses, including other prisoners of war. After the announcement of the verdict, the prisoner of war has the right to file complaints, as well as to ask for a review of the case.

“Any Russian or Ukrainian tribunal must be independent and impartial, and trials must be fair in accordance with international law, guaranteeing the right to be presumed innocent until proven guilty; give the accused sufficient time and opportunity to prepare the defence; give the right to communicate freely with a lawyer of the accused's choice; allow appealing against the final decision and any important decision,” Hugo Relva, legal adviser for the Law and Politics program of Amnesty International, told RBC.

He stressed that Amnesty International considers it essential that criminal trials take place in civilian courts and not in military courts. Convincing evidence of war crimes must be collected, Relva added.

Are trials of war criminals possible in partially recognized states?

Concern about the possible fate of the Ukrainian troops arose after statements by Russian officials that they were "terrorists" and not combatants, according to the Guardian.

Amnesty International urged Russia to respect the rights of the prisoners, saying they were "dehumanized by the Russian media".

Although the DPR and LPR are not parties to the Geneva Conventions, they can, however, perform them on a voluntary basis - the convention does not prohibit doing this, Anatoly Kapustin explained to RBC. Non-participation in the Geneva Convention does not deprive the state of its sovereign rights, he believes, the territories have a functioning judicial system, so “no one can prohibit the holding of courts” - the main thing is that the processes meet the standards of justice. “Countries may not recognize the decisions made by the republics in relation to certain people, however, the convicts will execute the punishment in this territory,” he said.

The provisions of the Geneva Conventions are recognized by the entire international community and are binding on any country in the world, even if any newly formed state has not ratified them, Petr Kremnev, professor at the Department of International Law at the Faculty of Law of Moscow State University, told RBC. Even if the LPR and DPR are not recognized, these conventions were ratified by Ukraine and their effect extends to its entire territory, he emphasizes.

“It is the duty of the world community to bring to justice for war crimes, regardless of the place of their commission and the nationality of the perpetrators. Therefore, the LNR and the DNR are not only competent, but also obliged to bring to justice those who have committed war crimes, ”Kremnev believes.

The key issue in the context of the surrender of the military from Azovstal, according to him, will be their status. The personnel of the Armed Forces of Ukraine and other armed formations included in the armed forces are lawful combatants - they can have the status of prisoners of war, the lawyer said.

“The question arises with the legal status of national battalions – if they are part of the Ministry of Internal Affairs, whose employees are not included in the armed forces under the laws of Ukraine, then they will be illegal combatants or persons from armed formations who cannot participate in an armed conflict. Here it is necessary to find out whether they are legitimate combatants,” said Piotr Kremnev.

If the national battalions are recognized as such illegal combatants, then their actions are subject to criminal liability, and then the protection of international law does not apply to them, Kremnev believes.

Trials of prisoners of war can also be held in Russia, Kapustin believes. He noted that Russian legislation has a passive personal principle of criminal jurisdiction, according to which the state has the right to prosecute foreigners for crimes against its citizens committed abroad.

“Traditionally, the greatest difficulty in relation to any international crimes is the collection of evidence <...> If we are talking about the active phase of the conduct of hostilities, then the collection of evidence will be seriously complicated,” Vera Rusinova, head of the HSE Department of International Law, said on the air of International Review ".

Answering the question of how unbiased courts can be in the current circumstances, the lawyer stressed that it depends on the professionalism of judges. According to her, the situations are not unique, and the terms have specific legal content. However, law enforcers are people, and it is difficult to deny the fact of pressing circumstances, Rusinova concluded.

On May 23, a verdict was passed in Kyiv on a Russian soldier accused of war crimes in Ukraine. The Solomensky District Court sentenced Sergeant Vadim Shishimarin to life imprisonment for the murder of a civilian in the Sumy region.

When is international criminal justice possible?

National courts play a predominant role in the prosecution of war crimes. At the same time, the UN Charter provides for the right of the Security Council of this organization to establish international tribunals to consider crimes already committed. In 1998, the Statute of the International Criminal Court (ICC) was adopted in Rome. The ICC is called upon to act when effective national justice is not possible. The ICC is the first permanent international criminal court and is mandated to try individuals.

The ICC in The Hague has already begun investigating war crimes and crimes against humanity committed in Ukraine from 21 November 2013 to the present.

Ukraine and Russia signed the Rome Statute in 2000 but have not ratified the document. In November 2016, Russian President Vladimir Putin signed a decree under which the country would not become a member of the ICC. The order was published shortly after ICC chief prosecutor Fatou Bensouda in a report called the fact that Crimea became part of Russia "tantamount to an international armed conflict" between Ukraine and Russia.

If a decision is made to prosecute Ukrainian military personnel, it will be a national prosecution, Anatoly Kapustin believes. “Creating courts is a rather troublesome procedure, and this will raise questions - why create a new court when there is already an existing one. In addition, this also has difficulties - incompletely recognized states cannot apply there, ”the lawyer explained.

As for the possibility of creating an “international tribunal” to investigate war crimes, which will include representatives of Russia and the DPR/LPR, from the point of view of international law, such an entity cannot be considered an international tribunal, since they are formed on the basis of an international treaty (like the ICC) or a decision authorized international body (like the tribunals for Yugoslavia, Rwanda), Maria Filatova, associate professor at the HSE Department of International Law, explained to RBC.

What international tribunals have been established in the last decade

In recent decades, two international tribunals have been operating. The first is on the former Yugoslavia (ICTY), it worked from 1993 to 2017, meetings were held in The Hague. It was created by a unanimous decision of the UN Security Council, and Russia also voted “for”, subsequently criticizing the tribunal for its biased attitude towards the Serbian defendants. The purpose of the tribunal was to bring justice to the victims of war crimes, crimes against humanity and genocide committed during the wars in Yugoslavia since 1991.

The members of the tribunal were 27 judges. As a result, charges were brought against 161 defendants, in 111 cases the trial was completed, 21 people were acquitted, 90 were convicted. Among the accused were both ordinary soldiers and heads of state, including Serbian President Slobodan Milosevic, President of the Republic of Serbian Krajina Milan Babić, Prime Minister of Kosovo Ramush Haradinaj and others.

The second international tribunal, for Rwanda, was also established by the decision of the UN Security Council to prosecute those responsible for genocide and other serious violations of international law committed in Rwanda, and citizens of Rwanda responsible for genocide and other similar violations committed in neighboring states since 1 January to December 31, 1994.

The court sat in Tanzania and consisted of 20 judges. In total, 93 people were charged, 61 were convicted, 14 were acquitted, the cases of the rest did not reach the court. This tribunal was the first to pass judgment on genocide cases. In particular, Rwandan Prime Minister Jean Kambanda was convicted on charges of genocide.