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Sight Magazine – Essay: Russian soldier’s war crimes trial was perfectly legal – but that doesn’t make it wise


the Russian soldier’s war crimes trial in Ukraine – which ended on May 23 with a conviction and life imprisonment for the accused – was authorized by international law. And with the eyes of the world on them, the Ukrainian authorities would have wanted the proceedings to go entirely according to the book.

But nonetheless, conducting a war crimes trial during active hostilities, and by a civilian court, is not normal. Nor can it be wise.

Russian soldier Vadim Shishimarin, 21, suspected of violations of the laws and norms of war, sits in a cage during a court hearing, amid the Russian invasion of Ukraine, in kyiv, Ukraine, on May 23. PHOTO: Reuters/Viacheslav Ratynskyi.

Inasmuch as specialist in the law of war – that is, the set of international legal protocols and conventions that establish the rules of what is permitted during conflict – I fear that trying a prisoner of war in such circumstances is problematic for several reasons. Moreover, it could set a worrying precedent. Although the Ukrainian trial may well have been conducted in accordance with the law, it may not be the same if Russia decides to follow suit.

The right time to prosecute war crimes
There are, of course, advantages to holding a trial so close to an alleged crime – in this case, the shooting death of an unarmed civilian in the Ukrainian village of Chupakhivka on February 28, 2022. For example, it makes it easier to collect evidence because the crime scene is still fresh and the memories of eyewitnesses more recent. Such trials could also bring timely justice to relatives of killed civilians.

“I fear that trying a prisoner of war in such circumstances is problematic for several reasons. In addition, it could set a worrying precedent. Although the Ukrainian trial may well have been conducted under due process, it It may not be the same if Russia decides to follow suit.”

Moreover, Ukraine has high morals here. The country is a victim of frank aggression of Russia. And rights experts have detailed a model of war crimes and the crimes against humanity perpetrated by Russia since its invasion of Ukraine.

The rules governing war crimes trials are set out in the Geneva Conventions – a set of additional treaties and protocols that establish accepted wartime behavior and duties to protect civilians. Russia and Ukraine are both signatories to the convention, and Ukraine is also bound by its commitments to the European convention of human rights.

Nothing in international law prohibits war crimes trials during hostilities. Nevertheless, some commentators have expressed concerns about this practice. In one of its commentaries on the Geneva Conventions, the International Committee of the Red Cross expressly warned against war crimes trials in wartime.

The commentaries, which are collectively considered authoritative in the interpretation of the conventions, note that it is difficult for an accused “to prepare his defense during hostilities”, adding: “It therefore seems to be a good rule that the trial of t a person accused of war crimes should not take place at a time when it is impossible for him to provide evidence capable of mitigating or disproving his responsibility.

In fact, it is very difficult to think of an example in which a war crimes trial was conducted during hostilities other than a case involving a soldier during the Bosnian War in the early 1990s.

“Direct part of hostilities”
The trial in Ukraine is unusual for another reason that I find concerning: it is being held in a civilian court, not a military one.

The Third Geneva Convention is pretty clear on that point: “A prisoner of war shall be tried only by a military tribunal, unless the applicable laws of the Detaining Power expressly authorize civilian courts to try a member of the armed forces of the Detaining Power for the particular offense which he is accused of. been committed by the prisoner of war.

The Russian soldier was prosecuted under a part of Ukraine’s criminal code that deals with wartime conduct. And the question is blurred by the detaining power, Ukraine, having abolished military tribunals in 2010.

But the problem alluded to by the Geneva Conventions’ ardent desire to have war crimes tried only by military tribunals is that international humanitarian law is a highly specialized field. Military court officials will have the training to understand the nuances in a way that civilian courts generally will not.

And a central question in the Russian soldier case – whether the slain civilian could be considered a legitimate target – is a highly technical area that only an expert in the laws of war will understand.

Below Protocol I of the Geneva Conventionstreaty added in 1977, a civilian loses his immunity when he takes a direct part in hostilities.

And this is where it gets complicated. If the Russian soldier believed that the civilian he fired at posed an immediate threat, such as reporting his position to the Ukrainian military, it would not be unreasonable for the defense to argue that the civilian was a legitimate target. Indeed, in the ongoing trial, the court heard that the Russian soldier was ordered to shoot the man for this very reason – his superior thought that the civilian might be using a mobile phone to reveal his location.

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Discerning when a civilian takes “direct participation in hostilities” is very situational; that is, it depends on the circumstances of the case. The conventions stipulate that civilians lose their immunity when preparing for, participating in, or returning from participation in hostilities. For example, if a civilian takes a gun or a Molotov cocktail – and thus shows his intention to participate in hostilities – he loses his immunity.

But other examples may seem less clear-cut. For example, a munitions worker manufacturing weapons in Detroit for use in conflicts overseas would not be considered taking “direct participation” in hostilities. But someone in Iraq making improvised explosive devices, or IEDs, for use by others would be.

The court may well not have accepted the argument that, by simply being on a cell phone, the Ukrainian civilian was taking a “direct part” in the war. But the fact that the Ukrainian was apparently using a mobile phone opens up a line of defense that does not appear to have been argued in court.

Reinforcing the view that it should at least have been retained as a defense is 2009 guidance on the issue when a civilian becomes “direct participation in hostilities” under the humanitarian law issued by the International Committee of the Red Cross. He notes that “an unarmed civilian sitting in a restaurant using a radio or cell phone to transmit tactical targeting intelligence to an attacking air force should probably be considered a direct participant in hostilities.”

Vadim Shishimarin, the 21-year-old Russian soldier accused in the case, pleaded guilty. But the view that he would be tried in wartime by a detaining authority engaged in a conflict raises questions about the confession.

The Geneva Conventions are explicit in this sense. no form of coercion can be used to obtain a confession of guilt – and there is no evidence to suggest that Shishimarin was coerced into confessing.

Russian trial and justice shows
But there is a wider concern about the way this case is presented. Even if observers agree that the soldier received adequate counsel and the trial was conducted entirely by the rules of the book, that is not how he is likely to be presented to the Russian people.

And Russia is would prepare its own war crimes trials for Ukrainian soldiers captured during the conflict.

the treatment of dissenters and opponents of President Vladimir Putin suggests that the concept of the rule of law has been eroded. And with around 2,000 Ukrainian soldiers from Mariupol currently being held by the Russians, there are concerns that show trials could be on the way.

Of course, there is also a propaganda aspect to the proceedings against Ukraine. Anything that reinforces the view that Russian forces are engaged in war crimes will serve Ukrainian interests.

But there is nothing in the trial propaganda per se that is illegal. Under international law, a line is only crossed when the detaining authority fails to observe minimum standards of due process – for example, by extracting a confession, refusing the right to appeal or failing to provide attorney to the accused.

No one is suggesting that was the case in the Ukraine war crimes trial. But by holding the trial during hostilities, Ukraine runs the risk of Russia doing the same – and subjecting its POWs to Russian justice.The conversation

Robert Goldman is a law professor at American University. This article is republished from The conversation under Creative Commons license. Read it original article.

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