The death sentence of three foreign fighters captured by Russian troops and handed over to authorities in a breakaway region in Ukraine offers a serious departure from international law – one that in itself represents a war crime.
Sentencing came on June 9, 2022, at the end of what was hailed by observers in the West as a “show trial” involving the three – two British citizens and a Moroccan citizen in Ukraine joining the country’s troops fight.
In many ways, proceedings such as those to which the three were subjected were inevitable. Indeed, in a previous article questioning the wisdom of Ukraine’s own war crime trials of Russian prisoners of war during ongoing hostilities, I suggested that it might encourage the Russians to do the same. And now the Russians have reacted in kind, but with a cynical twist I had not yet considered at the time: to outsource the dirty work.
Russia has handed over the men captured while fighting in the besieged port city of Mariupol to a court of the self-proclaimed Donetsk People’s Republic, a part of eastern Ukraine that has effectively occupied Russia since 2014.
As a scholar of martial law – that is, the international legal protocols and conventions that set out the rules of what is allowed during conflicts – I know that this step does not isolate Moscow from guilt. By handing the men over to a non-state authority, Russia has committed a very serious violation of the Geneva Conventions, the set of treaties and additional protocols governing accepted behavior in wars and the duties of protecting civilians – and prisoners.
The conventions are clear on what is acceptable and not when it comes to treating captive fighters. Article 12 of the Third Convention states categorically that the “continuing force” – in this case, Russia – can only transfer a prisoner of war to another state that is a party to the convention.
And the Donetsk People’s Republic is not a party to the convention. The region was recognized by Russia as an independent state only days before its invasion of Ukraine on February 24, 2022. More to the point, it was not recognized by any other UN member state. Instead, it is considered part of Ukraine.
As such, the Donetsk People’s Republic is simply a separatist region of Ukraine that has been involved in a continuing rebellion against the government in Kiev since 2014. At that time, it enjoyed the direct support of Russian forces.
But most importantly, it does not qualify as a state under international law and is not fit to be a party to the Third Geneva Convention.
‘Mercenaries’ and ‘terrorists’?
The three men sentenced to death were accused by prosecutors of trying to overthrow the separatist government of the Donetsk People’s Republic.
But if these three soldiers had committed war crimes, then they should have been tried by the courts of the detention force. Russian President Vladimir Putin can not simply wash his hands of responsibility for the trials and fate of these soldiers.
After these soldiers were illegally transferred to the crusades of a breakaway Ukrainian region, Russia should have ensured that they were tried fairly. As a detention force, it was obliged to do so not only by the Third Geneva Convention and an Additional Protocol agreed upon in 1977, but also under the European Convention on Human Rights and the International Covenant on Civil and Political Rights, both of which applicable in the Russian-occupied Donetsk region.
But Russia has failed to protect its prisoners from unjust persecution.
The Donetsk authorities have accused the three foreign fighters, with parrot statements from the Kremlin, of being “terrorists” and “mercenaries” – a deliberate label aimed at leading men to be denied POW status.
Simply put, both charges are false. In armed conflict, there are only two categories of persons: civilians and combatants. There is no third category of “terrorists”.
While treaties that address martial law like the Geneva Conventions prohibit terrorism, they do not define that term.
However, it is understood that intentional attacks directed at legally protected individuals, such as civilians, prisoners of war, wounded and sick, are forms of terrorism that amount to war crimes.
The Third Convention and its additional protocol make it crystal clear that members of the armed forces who commit war crimes do not forfeit POW status. As evidenced by the Ukrainian government, these three foreigners were active members of Ukraine’s armed forces when captured by Russian soldiers and were consequently unconditionally entitled to prisoner of war status.
In my opinion, the charges and convictions of these prisoners of war as “terrorists” are contrary to international law.
Similarly, there are problems in labeling the men as “mercenaries”. Article 47 of the Additional Protocol stipulates that a mercenary does not have the right to be a fighter or obtain prisoner-of-war status upon imprisonment. But to qualify as a mercenary, a person must meet six very specific criteria listed in that article. For example, a person who is a member of the armed forces of a party to the conflict is not considered a mercenary. This is the case with these three soldiers.
The issues under international law do not end with the charges the men faced. There are also serious grounds for concern about the conduct of the trial itself.
The Geneva Conventions mandate that prisoners of war be tried by independent and impartial courts through procedures that ensure the accused’s due process of justice, including access to competent legal counsel.
Based on published reports, it appears that the trial did not satisfactorily meet these requirements. Little is known about the qualifications of the judges and lawyer. The trial was conducted summarily, with all three soldiers pleading guilty to all charges less than 24 hours before being convicted and sentenced to death.
It is hard to believe that these soldiers recognized that they were terrorists and mercenaries without being forced, which is absolutely forbidden under the Geneva Conventions.
This in turn raises questions about the competence of their legal representatives, who apparently did not refute the allegations that they were terrorists and mercenaries. It is also unclear whether the lawyer had access to the soldiers before they pleaded guilty or were able to call witnesses and confront them.
The three soldiers have a month to appeal against their sentences, which could lead to them being sentenced to life or 25 years in prison instead of the death penalty.
But the haste and timing of the prosecutions give credibility to proposals that the trial was undertaken to humiliate Britain – which was a very outspoken critic of Russia’s invasion – and force Ukraine to eventually exchange these prisoners for Russian soldiers who, through its courts have been convicted of war crimes. .
Whatever the motive for these trials, the convictions may not be the end of the matter. And it is noteworthy that it is a serious war crime to deny a prisoner of war the right to a fair trial.