Ukraine Symposium – The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 3

In two previous posts (here and here), I addressed guilty pleas by three Russian soldiers recently processed by two Ukrainian domestic, civilian courts. This post synthesizes the previous posts’ observations into considerations for the recently-formed Atrocity Crimes Advisory (ACA) Group to assist future Ukrainian war crimes prosecutions.

 Suggested Considerations for the ACA and Ukrainian War Crimes Units

As explained in the introduction, Ukrainian journalists’ summaries of legal proceedings translated into English and an American lawyer’s understanding of a translated version of the Ukrainian Criminal Code are the foundations for the suggestions which follow. Realistically, some of the suggestions may well be flawed or are not applicable. But even the prospect that some suggestions turn out to be appropriate and can be incorporated seems ample justification for this endeavor.

The suggestions are listed in the order of application to the stages of the criminal justice process, beginning with investigations, pretrial activities, and then trial and punishment.

ACA LOAC Advisors

The ACA and Ukrainian War Crimes Units should consider where to use LOAC expertise. LOAC expertise could both assist efforts at investigating alleged war crimes and advise the trial and appellate courts, prosecution, and defense. One specific suggestion is to focus on cases like the first two, where the misconduct has a stronger nexus to the conduct of hostilities.

The LOAC advisors working with investigators could assist in identifying the type and amounts of evidence necessary to support a charge that a specific rule of warfare was violated. The LOAC advisors working with courts, prosecution, and defense could assist in understanding norms of military combat operations (like firing of artillery in urban environments) and the role (and limits) of the combatant’s privilege and superior orders.

Criminal Charge Specificity

 Ukraine must inform Russian POWs of the nature and cause of the criminal charge(s) against them. Charging unspecified violations of the rules of warfare not only doesn’t meet that requirement, it sets the conditions for confusion throughout trial.

Ukrainian Code Section 438 Part 1 criminalizes “any other violations of rules of warfare recognized by international instruments consented to as binding by the Parliament of Ukraine.” That language could be the start of a criminal charge but standing alone it fails to provide adequate notice.

At a minimum, that language should be followed by recitation of a specific rule of warfare. For example,

Violating a rule of warfare recognized by international instruments consented to as binding by the Parliament of Ukraine, to wit: violating [insert specific rule] from [insert the international instrument in which the rule appears] which was consented to as binding by the Parliament of Ukraine on [insert date the Ukrainian Parliament ratified/acceded to the instrument].

Once the rule violation is framed as a criminal offence it may be broken into constituent elements. The International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the International Criminal Court all offer elements of crimes examples.

Only with that level of specificity does the prosecution know what is required to be proved to establish guilt and is the accused able to prepare a defense. Even where the accused elects to plead guilty, it’s critically important to understand what such a plea entails and requires.

Geneva Conventions POW Prosecution Provisions

Ukraine should ensure and even publicize its compliance with the Geneva Conventions provisions on prosecuting POWs. This includes:

(1) Specifying and communicating the charges to the accused in a language they understand;

(2) Ensuring that a defense counsel is appointed at least two weeks before the opening of the trial;

(3) Providing that guilt will only be based on individual criminal responsibility; and

(4) Ensuring there will not be collective punishment.

The journalists’ accounts of the first two trials do not discuss these requirements, and Ukraine may already be in compliance. But if so, Ukraine should consider publicly acknowledging and highlighting their Geneva Conventions obligations.

Additionally, the Geneva Conventions require equivalent procedures and processes between how a State prosecutes its own armed forces and POWs. It’s not clear why the first two courts didn’t consider either the defenses of superior orders or of duress, as they are both recognized under the Ukrainian Code. Defenses which are available to Ukrainian service members prosecuted by Ukraine must also be available to Russian POWs.

Combatant Immunity

The ACA should consider discussing with the Ukrainian Prosecutor General whether to adopt a uniform position on the application of the combatant’s privilege to Russian POWs alleged to have committed pre-capture crime(s) connected to the conduct of hostilities.

In the first trial, the prosecution acknowledged Shishimarin was a lawful combatant under the Geneva Conventions and Additional Protocol I. But in the second trial the prosecution not only didn’t acknowledge that the Russian artillerymen were lawful combatants but claimed their status as members of the Grad battery that fired rockets into Ukraine was an aggravating factor warranting increased punishment.

There should be a consistent national position on the status of enemy POWS subject to criminal prosecution.

Witness Tracking/Availability

While this issue may well extend outside the War Crimes Units’ control, Ukraine should consider reviewing whatever witness tracking mechanisms are being used. This specifically refers to other Russian POWs who are deemed to not have committed a crime. They may have relevant information which either inculpates or exculpates other Russians, as well as able to contribute to the factual record of hostilities. Before Ukraine transfers or exchanges any Russian POWs, Ukraine should coordinate with the Prosecutor General and War Crimes Units and potentially individual courts and defense counsel.

Obedience to Orders

To the extent that the issue of obedience to an order or command arises in future cases, Ukrainian should consider clearly noting the issue and making findings on its applicability or lack thereof. The findings should include the contents of the specific order and the basis for claiming the order is illegal. The court should make a separate finding if the order is deemed patently criminal. It’s also important to assess whether the accused, at the time of the order, knew or should have known of the order’s legality.

Ukraine may wish to consider noted commentator Professor Leslie C. Green’s suggestion that the assessment of whether the accused should have known of an order’s illegality include:

(1) The conditions existing at the time of and before the order;

(2) The nature of hostilities (length/location/intensity);

(3) The accused’s age, rank, education, and military experience

Conduct of Guilty Pleas

Ukraine may want to also consider distinguishing parts of a guilty plea. One part of the guilty plea could be a stipulation of relevant facts. This would involve the prosecution introducing the background underpinning the charge(s). Essentially the stipulation of fact would explain how the accused committed the elements of the charged offense(s). Depending on the given case, the stipulations can also explain whether certain defenses and mitigating and aggravating factors apply. The stipulations are useful not only in the specific case but could help document the conduct of hostilities more broadly.

Another part of the guilty plea might include the accused agreeing that they committed specific charged offense(s). As part of this process, the court could question the accused about any of the elements for which the stipulation was not sufficiently clear as well as discuss the factual components to potentially relevant defenses and mitigating and aggravating factors.

Punishment

The ACA may wish to discuss punishment approaches with Ukraine. Punishment approaches includes both the sentence the prosecution requests and that which the court imposes.

In the first two trials the accused surrendered, cooperated, apologized, and pled guilty. Yet the prosecution requested the maximum punishment in both. If that is the approach the War Crimes Unit elects for future cases, that is of course their prerogative. But doing so greatly reduces the accused’s incentive to plead guilty, so the prosecution should not be surprised if in future cases Russian POWs plead not guilty. This would mean the prosecution must prove guilt, which given the ongoing armed conflict could pose additional challenges.

Imposition of the maximum or near maximum punishment further reduces if not eliminates the accused’s incentives to cooperate and plead guilty. Ukrainian courts should determine sentences consistent with Ukrainian law and procedure. But it may be useful for the ACA to point out maximum or near maximum punishments for young, junior soldiers who surrendered, cooperated, and pled guilty in whole or in part may foster a negative perception of Ukrainian criminal accountability mechanisms in both the short and long terms.

In the short term, while not minimizing the loss of a life in the first trial and the property damage in the second, requesting and imposing harsh sentences would seem to make it difficult to differentiate gradations of crime and harm in future cases involving multiple victims and offenders who may not have surrendered, cooperated, or pled guilty.

In the longer term, the Russia-Ukraine armed conflict may well yield an international criminal tribunal. One would expect that tribunal to address senior officials alleged to have committed particularly egregious misconduct involving multiple victims. If convicted, one would also expect that the sentences such a tribunal imposed would be comparable to those from the ICTY, the ICTR, and the ICC. In particular, the punishment Ukraine imposed on Shishimarin for one murder is significantly greater than that imposed by international tribunals against senior offenders who did not plead guilty and who were responsible for the deaths of hundreds and even thousands.

Conclusion

It’s obviously important, on a number of levels, that Ukraine’s accountability efforts are in accord with domestic and international law. These initial efforts will provide a template for future cases, and it seems there will be many. While Ukraine should not let international perception dictate how they conduct criminal proceedings, the larger the disparity between domestic and potential international proceedings—and results—the great the risk that Ukraine will sacrifice some of the legitimacy “high ground” Ukraine has fought so hard, literally, to secure.

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Chris Jenks is a Professor of Law at the SMU Dedman School of Law in Dallas, Texas.

Photo credit: UNDP Ukraine via Flickr