Update: June 10, 2022
From The Conversation, “Ukraine: British POWs sentenced to death after ‘show trial’ which appears to violate Geneva Conventions” - “Two Britons captured while fighting in Ukraine’s armed forces have been sentenced to death after what has been condemned as a “show trial”. Aiden Aslin and Shaun Pinner, who surrendered to Russian forces during the siege of the Azovstal steelworks in Mariupol, were convicted on the charge of “being a mercenary”. They have a month to appeal and, if successful, they could receive a life or 25-year prison sentence instead of the death penalty. Pro-Russian officials in the breakaway republic of Donetsk, where the trial was conducted, claimed the men’s actions had “led to the deaths and injury of civilians, as well as damage to civilian and social infrastructure”.But what observers have called a “show trial” on “trumped-up charges” raises important questions both about their status under international law (specifically, whether they are entitled to prisoner of war status) and the compatibility of these trials with the rights that come with such status.
Russian Show Trials?
Britons Aiden Aslin and Shaun Pinner with Moroccan Brahim Saadoun, who were captured after the siege of the the Azovstal steel plant in Mariupol. (Image taken from footage of the Supreme Court of the self-proclaimed Donetsk People's Republic.)
Law and Justice in Ukraine during Wartime
May 23, 2022. Judges in Kyiv handed down the first verdict on a war crime in the Russo-Ukraine War. Sergeant Vadim Shishimarin, 21, was convicted of shooting a 62-year-old civilian, Oleksandr Shelipov, in the northern region of Sumy. Sergeant Shishimarin, who had pleaded guilty at the start of the trial, was sentenced to life in prison.
According to Prosecutor General Iryna Venediktova the defendant was a Russian sergeant whose convoy was under attack from Ukrainian forces and while driving out of the village he and his fellow soldiers saw a villager talking on the phone while he rode his bicycle. The young sergeant, afraid that Mr. Shelipov would report their location to Ukrainian forces nearby, fired his rifle at the old man.
The sergeant was charged under Ukrainian Criminal Code, Article 438 §2 and the trial drew crowds to the courthouse in Kyiv. International scholars and journalists followed the case and the trial was broadcast on YouTube.
The case was tried without a jury according to the defendant’s wishes. The evidence presented by the prosecutor included the self incriminating testimony of the defendant, ballistics on the gun used, testimony from a friend of the victim, as well as testimony from another soldier who had been with the sergeant and was also captured at the same time the sergeant was brought in.
There are some interesting legal points about this trial.
It is unusual for soldiers to be tried for war crimes during active wartime. This is in large part because of logistic problems relating to arrest and to access to courts. It is unusual for a war crime trial be conducted during a conflict. A case from the Bosnian War is the point of reference of a previous trial conducted during war. In that case another 21 year old soldier, Serbian Borislav Herak, was arrested for brutally killing and raping a massive number of civilians. A report on this Bosnian case by John F. Burns won a 1993 Pulitzer Prize, “A Killer’s Tale: A Serbian Fighter's Path of Brutality.
What is the point of a war crimes trial? Justice, revenge, deterrence for future crimes? In history, war crimes have been dealt with through crowd justice and hangings, to a more recent establishment of international tribunals.
What are the elements of the crime of a war crime in Ukraine’s Criminal Offenses Against Peace, Security of Mankind and International Legal Order, Article 438. What are possible defenses? Is there a defense of self defense where it can be argued that in the time of war that troops found it necessary to kill a civilian informant that might give witness to the location of troops?
How difficult is it for the defendant to put on a defense during war? Would a defense attorney in another jurisdiction have recommended to the defendant that the sergeant plead guilty or decline a jury trial, as was done in this case?
The Russian defendant-soldier in this Ukrainian case is very young. He represents the kind of troops that are being sent to Ukraine in the early part of the war. War is unpredictable and dehumanizing, and untrained and inexperienced troops may respond aggressively out of fear, bravado, war fatigue, or sometimes from directives from commanders. Also, there is a factor of out-of-controlled-ness that comes in war. There have been reports of horrible crimes committed by Russian troops. The tendency of troops to commit war crimes is exacerbated by the Russian leader Putin speaking of Ukrainians as “Nazis,” or in demeaning ‘other’ terms such as dirty khokhols, extremists and terrorists, immoral aggressors.
Is the local Ukrainian criminal court the best place to try a war crime? Robert Goldman, a scholar on international human rights at American University Washington College of Law, argues that this case should have been tried in a military court. Professor Goldman wrote, “international humanitarian law is a highly specialised area. Military court officials will have the training required to understand the nuances in a way that civilian courts will, by and large, not.” This is not possible in Ukraine as Yanukovych, the president deposed in the Maidan Revolution in 2014, abolished all military courts in 2010. (This is good fodder for another article.) Respectfully, I am also not sure a military court in Ukraine would have the training Mr. Goldman refers to. And, finally, would a military court in Ukraine be viewed internationally as unbiased? I am concerned about the appearance of fairness. Should the trial have been held in Kyiv? Or in Ukraine, at all? Which brings up the question if it would be better to try war crimes outside the country with the International Criminal Court, an outside independent judicial body with plenty of experience in humanitarian law and with war crimes. I know, this is asking a lot. Interestingly, I read reports of ICC investigators working in Ukraine today.
Should we worry that the Russian’s will respond in anger to this trial and will seek revenge on Ukrainian soldiers? Goldman writes that the Russian military may respond in like and put on ‘show trials’ of Ukrainian defenders. In mid May nearly 1,000 Ukrainian fighters, who hid out inside Mariupol’s steel plant in south Ukraine, surrendered to Russian troops and Russia has threatened to put some of them on trial for war crimes. While a worry that the Russians will conduct war trials in a tit for tat in response to this Ukrainian war trial is legitimate, I think that is what the Russians will do anyway. Fear of the enemy putting on show trials may not be the best argument for not conducting war trials. In a perfect world, the Russians would send their defendants to the ICC to try the soldiers from Ukraine, but I can’t imagine this happening under this Putin regime.
There is an interesting side note relating to the Ukrainian judiciary. According to a coordinator for a human rights organization, “At present, the trial of Shishimarin looks like what we have dreamed of,” she said. The defendant was brought to trial quickly. Online media and the public were given access to the court hearing. The activist gave the impression that both speed and accessibility are unusual in Ukrainian courts. According to Ms. Reshetylova, it took “a full-scale Russian invasion for the Ukrainian judiciary to understand that transparency and accessibility in warfare is not only a matter of justice, but also an element of justice to satisfy the victims.”
According to the Ukrainian Criminal Procedure Code, Art 27 §2 “In courts of all instances, criminal proceedings are conducted openly.” Only in very limited cases, may the trial be conducted ‘in camera,’ i.e. without public admittance. Also, an audio recording of the trial must be available. Article 28 §5 requires “Everyone shall have the right for a charge to be subject of a trial within the shortest possible time or criminal proceedings concerned closed.”
In my study of Ukraine, at the early stages of Ukrainian statehood, I heard horror stories of long incarceration before trials. On the other hand, I was welcome to watch criminal and civil trials as a member of the public. Admittedly, those trials were neither controversial nor political.