‘Show’ trial of foreign fighters in Donetsk breaches international law – and could itself be a war crime

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(THE CONVERSATION) The death sentence of three foreign fighters captured by Russian troops and handed over to the authorities of a separatist region of Ukraine constitutes a serious breach of international law, which in itself constitutes a war crime.

The sentencing came on June 9, 2022, following what was dismissed by Western observers as a ‘show trial’ involving the three – two British citizens and a Moroccan national in Ukraine fighting alongside the country’s troops .

In many ways, procedures like the ones the three went through were unavoidable. Indeed, in a previous article questioning the wisdom of Ukraine’s conduct of its own war crimes trials against Russian prisoners of war during the ongoing hostilities, I suggested that it might incite the Russians to do the same. And now the Russians have responded in the same way, but with a cynical twist that I hadn’t considered then: outsourcing the dirty work.

Russia has handed over the men captured while fighting in the besieged port city of Mariupol to a court in the self-declared People’s Republic of Donetsk, a part of eastern Ukraine that Russia has effectively occupied since 2014.

As a scholar of the laws of war — that is, international legal protocols and conventions that set the rules for what is allowed during conflict — I know that this ruling does not absolve Moscow of culpability. By handing the men over to a non-state authority, Russia has committed a grave breach of the Geneva Conventions, the set of additional treaties and protocols that establish accepted wartime conduct and duties to protect civilians – and prisoners.

Doubtful jurisdiction

The conventions are clear on what is and is not acceptable with regard to the treatment of captured combatants. Article 12 of the Third Convention categorically states that the “detaining power” – in this case, Russia – can only transfer a prisoner of war to another state 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 just days before its invasion of Ukraine on February 24, 2022. Specifically, it has not been recognized by any other UN member state. Instead, it is considered part of Ukraine.

As such, the Donetsk People’s Republic is simply a breakaway region of Ukraine engaged in an ongoing rebellion against the government in Kyiv since 2014. During this time, it has enjoyed direct support from Russian forces.

More importantly, it does not qualify as a state under international law and is not eligible to be a party to the Third Geneva Convention.

“Mercenaries” and “terrorists”?

The three men sentenced to death have been accused by prosecutors of trying to overthrow the separatist government of the Donetsk People’s Republic.

But if these three soldiers committed war crimes, then they should have been tried by the courts of the detaining power. Russian President Vladimir Putin cannot simply wash his hands of responsibility for the trials and fate of these soldiers.

After illegally transferring these soldiers to rump courts in a breakaway Ukrainian region, Russia should have ensured that they were given a fair trial. As a detaining power, it was bound to do so not only by the Third Geneva Convention and an additional protocol adopted in 1977, but also by the European Convention on Human Rights and the International Covenant on Civil and Political Rights, which both apply in the Russian-occupied Donetsk region.

But Russia failed to protect its prisoners from unjust prosecution.

Echoing statements from the Kremlin, authorities in Donetsk accused the three foreign fighters of being “terrorists” and “mercenaries” – a deliberate label aimed at denying them POW status.

In other words, both accusations are false. In armed conflicts, there are only two categories of people: civilians and combatants. There is no third category of “terrorists”.

Although treaties dealing with the laws of war, such as the Geneva Conventions, proscribe terrorism, they do not define this term.

However, it is understood that intentional attacks directed against legally protected persons, such as civilians, prisoners of war, wounded and sick, are forms of terrorism amounting to war crimes.

The Third Convention and its additional protocol make it clear that members of the armed forces who commit war crimes do not lose their status as prisoners of war. As attested by the Ukrainian government, these three foreigners were active members of the Ukrainian armed forces when they were captured by Russian soldiers and were therefore unconditionally entitled to prisoner of war status.

In my view, charging and sentencing these prisoners of war as “terrorists” is contrary to international law.

Likewise, there are problems with the labeling of men “mercenaries”. Article 47 of the Additional Protocol stipulates that a mercenary does not have the right to be a combatant or to obtain prisoner of war status upon capture. But to qualify as a mercenary, a person must meet six very specific criteria listed in this 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 of these three soldiers.

Summary Law

International law issues do not stop at the charges against the men. There are also serious reasons to be concerned about the course of the trial itself.

The Geneva Conventions require prisoners of war to be tried by independent and impartial tribunals with procedures guaranteeing the accused due process, including access to competent counsel.

Based on published reports, the trial appears to have sorely failed to meet these requirements. Little is known about the qualifications of judges and defense attorneys. Moreover, the trial was conducted summarily, with the three soldiers pleading guilty to all charges less than 24 hours before being found guilty and sentenced to death.

It is hard to believe that these soldiers confessed to being terrorists and mercenaries without being coerced, which is absolutely prohibited by the Geneva Conventions.

This, in turn, raises questions about the competence of their legal representatives, who do not appear to have refuted the charges of being terrorists and mercenaries. It is also unclear whether the lawyers had access to the soldiers before they pleaded guilty or whether they were able to call and confront witnesses.

The three soldiers have one month to appeal their conviction, which could lead to their life sentence or 25 years in prison instead of the death penalty.

But the haste and timing of the prosecution lend credence to suggestions that the trial was undertaken to humiliate Britain – which has been a vocal critic of Russia’s invasion – and force Ukraine to possibly trade. these prisoners against Russian soldiers convicted of war crimes by its courts. .

Whatever the reason for these trials, convictions may not be the end of the story. And it should be noted that denying a prisoner of war the right to a fair trial is a serious war crime.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/show-trial-of-foreign-fighters-in-donetsk-breaks-with-international-law-and-could-itself-be-a-war-crime-184899.