Ukraine Symposium – Rebel Prosecutions of Foreign Fighters in Ukraine

On 1 July 2022 Russian state media reported that two British nationals captured by the “Donetsk People’s Republic” in eastern Ukraine would be prosecuted for “mercenary activities,” in violation of the laws of Donetsk. This comes a few weeks after two British men and one Moroccan man were sentenced to death by the Supreme Court of the Donetsk People’s Republic for their involvement in the war on behalf of Ukraine. It is likely that these are only the first of a large number of convictions by Russia and its allies of Ukrainians and foreign fighters from a range of other countries, signaling a dangerous unraveling of the tenuous protection granted under international law to combatants in warzones. More generally, it adds to Russia’s frontal assault on the prohibition of war underpinning the international legal order created on the ashes of the Second World War, calling for a united and considered response by the international community.

Rebel Courts

The first challenging aspect of the announced prosecutions and earlier convictions is that they were issued by the supreme court of an unrecognized entity, the Donetsk People’s Republic. Both Donetsk and Luhansk are self-proclaimed “people’s republics” that have had de facto autonomy since 2014, when non-State armed groups engaged in a non-international armed conflict with Ukraine managed to gain territorial control over these two regions with support from Russia. Donetsk and Luhansk each adopted a constitution in 2014 which acts as the foundation of the legal orders in the regions. The Ukrainian government ordered all state courts to suspend their operations in areas under rebel control, and these were progressively replaced by rebel courts of the autonomous Donetsk and Luhansk authorities, including appeal and supreme courts. Information on the administration of justice in these territories has proved extremely difficult to obtain, but reports by the UN and international NGOs paint a glum picture of justice before the courts of Donetsk and Luhansk.

As I have argued in a recent book, Rebel Courts, the creation and operation of such rebel courts applying the laws of an unrecognized entity are not in themselves a violation of international law. Common Article 3 of the Geneva Conventions prohibits “the passing of sentences and the carrying out of sanctions without previous judgment pronounced by a regularly constituted court,” and it is generally accepted that armed groups can “regularly constitute” their own courts if they do so by way of a deliberate and general decision, as opposed to acting in an ad hoc fashion (Rebel Courts 195-200).

The Donetsk Court

In the case of the courts of the Donetsk People’s Republic, there is every indication that these were indeed regularly constituted, some years ago. They can thus lawfully administer justice, but they must do so in a manner that respects due process guarantees imposed by international humanitarian law and human rights law, including having courts that are independent and impartial. There is strong evidence that the three men convicted earlier were not provided with effective legal counsel, were not permitted to mount a full defense, and that the convictions generally cannot be considered the result of a fair trial. These conclusions are not fundamentally altered by the transformation of the non-international armed conflict into an international one following the Russian invasion on 24 February 2022, or even if Russia’s influence over rebels in eastern Ukraine had reached a threshold internationalizing that conflict at an earlier date.

A second, distinct problematic aspect of these convictions and announced prosecutions is the crimes that the men are alleged to have committed. On that front, the fact that the war in Ukraine has become an international armed conflict is critically significant. The Russian Foreign Minister has said that the initial trio were convicted of violating the laws of the Donetsk People’s Republic. Here again, it is not per se unlawful for an unrecognized entity like Donetsk to adopt and enforce its own laws, but these in turn must not violate binding international law. It is reported that the men were found guilty of violating laws of Donetsk that criminalize the attempt to overthrow the government of Donetsk and prohibit terrorism. The court found that the men were mercenaries, not prisoners of war protected against prosecution. It is here that the broader context of an international armed conflict and the status of the three men become of central importance in relation to these three crimes.

First, under international humanitarian law, regular combatants enjoy absolute immunity from prosecution for lawful acts of war. In other words, individual soldiers cannot be held accountable for serving in the armed forces of a country at war. The two British and the Moroccan accused were members of the Ukrainian marines. As members of the armed forces of Ukraine, they cannot be accused of a crime like “attempt to overthrow the government of Donetsk.”

Second, a mercenary is a concept precisely defined in international law. The definition does refer to individuals who do not hold the nationality of the State on whose behalf they are fighting, but it does not authorize a party to a conflict to prohibit involvement of any and all foreigners. The French Foreign Legion is a long-standing example of the accepted practice of incorporating foreigners into national armed forces. The only accepted exception concerns the ability of a State to punish its own nationals joining the enemy in wartime. Under Additional Protocol I, in addition to being a foreigner, a mercenary must be paid substantially more than local soldiers and not be a member of the State’s regular armed forces. It seems undisputed that the three men were regular soldiers, and as such they cannot be characterized as mercenaries.

Third, terrorism, like any other war crime, may be committed by anyone, including regular combatants. No one has immunity against prosecution for war crimes, including prisoners of war. As we saw, for example, with prosecutions by the Free Syrian Army of war crimes committed by Syrian government soldiers, it is not per se unlawful for rebel courts to sanction war crimes. But terrorism is a concept that is quite narrowly defined in international law, and there is no evidence of any kind that the three accused committed anything resembling terrorism. A party to a conflict, whether it be a State or non-State armed group, cannot convict a prisoner of war of a crime of terrorism, or any other international crime, using a definition that is wider than the accepted concept of that crime under international law.

All of this turns on the prisoner of war status of the men convicted or detained, which in turn depends on the characterization of the conflict as international rather than non-international. If they fought and were captured in a non-international armed conflict, then they enjoy no immunity against prosecution for violating the laws of the Donetsk People’s Republic. Can they be lawfully prosecuted for an “attempt to overthrow the government of Donetsk,” in other words for taking part in hostilities against Donetsk on the side of Ukraine? In Rebel Courts (264-271), I argue that the idea of rebel jurisdiction comes to limit the legislative reach of armed groups, such that they cannot claim to bind enemy fighters when these are in fact not under any measure of rebel authority. This conforms to the practice of armed groups, which very rarely will seek to prosecute government soldiers ex officio.

Others, like Alessandra Spadaro, do not agree and find no issue with rebels prosecuting government soldiers for merely participating in the conflict. In any case, it should be noted that such a stance would be inconsistent with Donetsk’s claim to be an independent State, now recognized as such by Russia, leading to the conclusion that this is an international armed conflict. Even if one rejects Donetsk’s claim to statehood, surely a sound interpretation of applicable principles of international law, it is unconvincing to claim that a non-international armed conflict between Ukraine and Donetsk endures alongside the international armed conflict between Ukraine and Russia. There is no evidence of any distinct conduct of hostilities, or indeed of any autonomy, on the part of Donetsk, that would support that claim.

The fact that the convictions issued against the three men are so manifestly unlawful is a matter of great concern, not only because of the individual injustice against them but also because Russia, far from acknowledging this illegality, seems intent on replicating it, perhaps on a wider scale. There is little doubt that the recent convictions of Russian soldiers for war crimes by Ukrainian courts contributed to a hardened Russian stance. The laws may not be silent in war, but they are undoubtedly fragile, and the risk of a tit-for-tat downward spiral of violations is enormous.

On the Russian side, disregard for fair trial requirements compounds the egregious breach, with the invasion itself, of the prohibition against the use of force in international law. Moves to have the European Court of Human Rights intervene, in the form of provisional measures ordering Russia to stay the execution of these men, appear unlikely to yield concrete results given Russia’s impending expulsion from the Council of Europe as of 16 September 2022. Other States must weigh carefully how they react to disregard by a permanent member of the Security Council of some of the most central and solidly entrenched rules of international law.

A Remedy

One response might be to reinvest in the rule of law by reviving the Nuremberg model and creating a transnational tribunal bringing together countries like the United Kingdom, Canada, Argentina, Kenya, and others, to try authors of war crimes and crimes against humanity committed by any side in the war in Ukraine. The universal jurisdiction attaching to these crimes provides an unassailable legal foundation for such a tribunal, which could deliver justice on a scale that the International Criminal Court cannot handle. This is distinct from a proposal to establish a special tribunal for aggression against Ukraine, which has been criticized on a number of valid grounds. A transnational war crimes tribunal would not only relieve the Ukrainian judiciary, never especially strong to begin with, but it would also bring legitimacy to any resulting convictions and, ultimately, help to strengthen a weakened international legal order.

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René Provost is a Professor of Law at the McGill University, Faculty of Law where he teaches Public International Law, International Human Rights Law, International Humanitarian Law, International Environmental Law, Legal Anthropology, and various courses in legal theory.

Photo credit: Mil.ru