Ukraine Symposium – The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 1

On 25 May 2022, the European Union, the United States, and the United Kingdom announced the establishment of the Atrocity Crimes Advisory Group for Ukraine (ACA). According to the announcement, “[t]he overarching mission of the ACA is to support the War Crimes Units of the Office of the Prosecutor General of Ukraine … in its investigation and prosecution of conflict-related crimes.”

Ukraine has already conducted two trials against three Russian prisoners of war (POWs) for pre-capture violations of the rules of warfare. According to the Ukrainian Prosecutor General, War Crimes Units are preparing to prosecute 49 more POWs as well as members of the private military company Wagner Group. These prosecutions are the initial results of Ukrainian efforts to investigate “close to 13,000 cases which are connected to war crimes” stemming from Russia’s invasion. To document the crimes in support of current national prosecutions and potential future international tribunals, as well as to build a historical record, Ukraine is collecting testimony from thousands of victims and witnesses.

It’s difficult to overstate the challenges in investigating and prosecuting alleged law of war violations in general, let alone while an armed conflict is being waged within your country. As the ACA announcement acknowledged, “Ukrainian prosecutors and investigators are very capable and have been doing outstanding work. Nevertheless, the scale of what is happening now is unprecedented and is placing huge demands on the Office of the Prosecutor General. Such demands would prove challenging for any law enforcement authorities in any country.”

Some of the alleged violations involve kidnapping, torture, and murder of families, including children. Others involve sexual assault and rape. Such misconduct, while violating the law of armed conflict (LOAC), is completely divorced from the conduct of active hostilities.

Other cases, including the first two trials, involve misconduct with a stronger nexus to the armed conflict. That stronger nexus yields a comparatively greater need to understand the conduct of legitimate military combat operations and the LOAC.

The first trial involved a Russian soldier who, on the orders of at least one and possibly a second military superior, shot and killed an unarmed Ukrainian civilian incorrectly suspected of using his cell phone to report the Russian troops’ location. The second trial involved two Russian soldiers who were members of an artillery unit that fired rockets which damaged or destroyed several Ukrainian civilian buildings.

For its part, Russia has begun prosecutions of Ukrainian “foreign fighters” in occupied portions of Ukraine. Russia also announced the pending prosecution of captured Ukrainian service members to take place in Russia but has not yet begun those proceedings. However, given the establishment of the ACA, and because there is much more information available in English on the Ukrainian trials, they are the focus of this post.

The two Ukrainian trials implicated a range of LOAC issues including the role of superior orders, direct participation in hostilities, explosive weapons in populated areas, the combatant’s privilege and immunity and requirements for prosecuting POWs. These issues do not appear to have been fully developed at trial, which may be partially attributable to the Russian soldiers having pled guilty.

But these LOAC issues may resurface on appeal from the first two trials or in subsequent cases where the accused plead not guilty and the prosecution is required to prove guilt. Ultimately this post suggests that the first two trials may help inform the ACA’s efforts to provide expertise, mentoring, and advice to the Ukrainian War Crimes Unit.

This three-part post addresses Ukraine’s decision to prosecute Russian POWs via a civilian/domestic court before reviewing the first two trials. The discussion of the first two trials primarily relies on Ukrainian media accounts, including Ukrainian journalists live-streaming/reporting the proceedings. The live streams are, of course, not official transcripts nor do they purport to be. Some of the livestream reflects paraphrasing and summarizing of court actions and testimony, while at other times, journalists provide direct quotes. Additionally, the Ukrainian journalists wrote their accounts in Ukrainian, though their publication converts the livestream to English.

The Ukrainian journalists’ accounts, after being translated, were then filtered through this English-speaking law professor, trained and experienced in American conceptions of criminal justice. This post assumes the perhaps considerable risk of misunderstanding what may have resulted. It does so to identify as many potential issues the context permits. Where this post asks flawed questions, those more knowledgeable about the first two trials and the Ukrainian criminal justice system should feel free to provide correction and clarification. But where this post raises potentially viable issues, it does so in the spirit of providing assistance to the ACA and the Ukrainian War Crimes Unit.

Why Is Ukraine Prosecuting Russian POWs in Civilian, Domestic Courts?

The 1949 Third Geneva Convention provides,

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

Ukraine abolished its military justice system in 2010 and added military-related articles to its domestic criminal code. As a result, Ukrainian prosecutions of members of the armed forces, Russian or Ukrainian, is only through civilian courts. Accordingly, Ukrainian prosecutions of Russian POWs in civilian court complies with the Third Geneva Convention.

The Trial of Sergeant Vadim Shishimarin

The primary source for information on the first trial was the Ukrainian News Site Grati. On 23 May, a three-judge trial panel from the Solomensky District Court of Kyiv sentenced 21-year-old Russian Army Sergeant Vadim Shishimarin to confinement for life for violating the rules of war and the murder of a 62-year-old Ukrainian civilian, Alexander Fedorovich Shelipov (Mr. Shelipov).

Background

Shishimarin, serving as a tank commander in the Russian Army’s 4th Kantemirovskaya Tank Division, participated in the Russian invasion of Ukraine. Between 24 and 28 February, Shishimarin and his unit fought with elements of the Armed Forces of Ukraine in the northeast of Ukraine, roughly 180 miles east of Kyiv. Following Ukrainian attacks the morning of the 28 February, Shishimarin was one of approximately fifteen Russian soldiers from several different units left without a vehicle. The fifteen subdivided into several groups, one of which included:

(1) Lieutenant (LT) Kalinin (superior in rank to Shishimarin)

(2) Kufakov (unknown to Shishimarin and Maltisov but they believed him to be an officer and superior in rank to them)

(3) Warrant Officer (WO) Makeev (superior in rank to Shishimarin)

(4) Private (PVT) Maltisov

(5) Sergeant (SGT) Shishimarin

Later that morning, a Ukrainian civilian drove toward Shishimarin’s group in a Volkswagen Passat. One or more members of the group shot at the car, hitting and damaging it. The driver stopped, left the car, and hid on the side of the road. The Russians seized the car, Makeev drove, Kufakov was in the front passenger seat, Shishimarin and Maltisov occupied the rear seats and for some unexplained reason Kalinin climbed into the trunk of the car.

The group’s destination is unclear, but they drove a visibly damaged civilian car to a nearby Ukrainian village while wearing Russian Army uniforms. In the village, Makeev was the first to see Mr. Shelipov, a local resident. Mr. Shelipov was unarmed, wearing civilian clothes, and riding a bicycle while talking on a cell phone. Mr. Shelipov was a few dozen meters from his house and on his way to assess whether explosions the night before had damaged his car.

Makeev, believing that Mr. Shelipov was using his phone to report the Russians’ location, ordered Shishimarin to shoot Mr. Shelipov. Shishimarin initially refused. Kufakov repeated the order and then, in a tone Shishimarin would later characterize as threatening, emphasized that Shishimarin was to shoot Mr. Shelipov. While the car was driving approximately 50 kilometers an hour, Shishimarin leaned out the window and fired 3-4 rounds from his AK 47 assault rifle at Mr. Shelipov. One of the rounds hit Ms. Shelipov in the head, killing him.

Kalinin, still in the trunk, yelled to the others to place their weapons on safe. The Russians drove on for roughly four miles to the outskirts of the next village. There, residents ambushed the Russians on a bridge, killing Kufakov and prompting Kalinin, Makeev, Maltisov, and Shishimarin to leave the car and flee toward a nearby pig farm. It’s not clear what happened to Kufakov’s body but the surviving Russian troops hid the remainder of 28 February. The morning of 1 March, they went to a nearby village and surrendered.

The Charges against SGT Shishimarin

On 11 May, following a Ukrainian Security Service (SBU) investigation, the Ukrainian Prosecutor General’s Office announced via the Telegram message application that Shishimarin would face criminal charges for the events of February 28th. Ukraine charged Shishimarin with “violating the laws and customs of war, combined with premeditated murder” under Part 2 of Article 438 of the Ukrainian Criminal Code (emphasis added).

Article 438 is titled “violations of the rules of warfare” and is subdivided into two parts. Part 1 criminalizes

Cruel treatment of prisoners of war or civilians, deportation of civilian population for forced labor, pillage of national treasures on occupied territories, use of methods of the warfare prohibited by international instruments, or any other violations of rules of warfare recognized by international instruments consented to as binding by the Parliament of Ukraine, and also giving an order to commit any such actions. (emphasis added)

Violations of Part 1 are punishable by imprisonment for a term of eight to twelve years. Part 2 criminalizes “[t]he same acts [from Part 1] accompanied with an intended murder” and is punishable by imprisonment for a term of ten to fifteen years or life imprisonment.

This post understands the structure of Article 438 and the Attorney General’s Office announcement to mean that Shishimarin committed two criminal acts: the first, an unspecified violation of one or more rules of warfare, the second the intentional murder of Mr. Shelipov.

SGT Shishimarian’s Trial

On 13 May, the Ukrainian court held a pretrial hearing. Shishimarin attended the hearing and was represented by an appointed Ukrainian defense counsel and was provided an interpreter. Shishimarin elected a trial by a three-judge panel (as opposed to a trial by one judge or by a jury).

The trial took place the following week and lasted roughly six hours spanning 18 through 20 May. On the first day of the proceedings, the Ukrainian Prosecutor acknowledged that Shishimarin was a lawful combatant under the Geneva Conventions and read a factual narrative of the events leading up to and on 28 February.

The narrative included that,

Mistakenly believing that a civilian wants to inform the Armed Forces of Ukraine about them, Kufakov ordered Shishimarin to kill a civilian.

Shishimarin shot 3-4 times at Shelipov from his weapon, a Kalashnikov assault rifle, leaning out of the car window.

As a result, Shelipov received a wound of the parietal-temporal part on the left, crushing of the cranial vault and destruction of the brain. The cause of death was a gunshot wound to the head….

Although this narrative does not seem to have included the specific criminal charges, following the recitation one of the Judges asked Shishimarin how he pled. Shishimarin replied “guilty.”

The prosecution called several witnesses, including a resident of the village who had witnessed the shooting and Mr. Shelipov’s widow. The prosecution introduced Mr. Shelipov’s cell phone and evidence that the SBU investigation had traced his 28 February call but the journalist’s account of the trial does not specify with whom Mr. Shelipov was on the phone. The prosecution also introduced weapons the Russian service members had been carrying. The prosecution informed the court that Shishimarin had cooperated with the SBU investigation and had identified the weapon he used to shoot Mr. Shelipov.

Shishimarin testified and was questioned by the prosecution, the defense, the court, and Mr. Shelipov’s widow. Shishimarin claimed that he didn’t mean to kill Mr. Shelipov and that he fired his weapon on orders first from Makeev and then Kufakov. In an exchange with the court, Shishimarin acknowledged that he knew Mr. Shelipov was a civilian and agreed that he could have employed less-than-lethal force.

The prosecution also called Maltisov. During prosecution and defense questioning, Maltisov testified that Makeev initially ordered Shishimarin to shoot Mr. Shelipov. He indicated that Kufakov repeated the command. Based on the journalist’s summary, Maltisov appears to have thought the order was illegal, though it was not clear when he formed that view.

Maltisov testified that there was no prior coordination between Makeev, who was driving, and Kalinin, who was in the trunk, regarding the order to shoot. Kufakov’s first name and rank were never established, though Maltisov testified that he believed Kufakov to be an officer. Along with that confusion, the ranking officer in the car was also not established. Kalinin and Makeev were superior in rank to Maltisov and Shishimarin, both of whom believed Kufakov was as well.

The defense then attempted to call Kalinin and Makeev as witnesses. However, the prosecution announced that Ukraine had returned the two officers to Russia as part of a prisoner exchange. According to contemporaneous accounts, the defense stated that the prosecution’s announcement was the first notice the defense had that the two officers would not be available to testify.

The journalists’ accounts do not reflect any discussion whether Ukraine exchanging two potential witnesses such that they couldn’t testify violated Shishimarin’s rights under the Criminal Procedure Code of Ukraine to “request that witnesses for the defense be summoned and examined at the same conditions as witnesses for the prosecution.”

Moments later the trial moved to closing arguments. The prosecution acknowledged Shishimarin’s admission of guilt and sincere repentance as mitigating factors, but requested that the court impose the maximum sentence of life imprisonment. The juxtaposition of the prosecution acknowledging those mitigating factors while requesting the maximum sentence is particularly interesting given the Ukrainian Criminal Code. Under Article 69-1, where an offender has surrendered or displayed sincere repentance (Shishimarin seemingly qualified on both counts) and admitted guilt (which the prosecution conceded), “[t]he term of punishment may not exceed a period of two thirds of the maximum term of the heaviest punishment prescribed….”

Based on the journalist’s summary, the prosecution did not identify or claim any aggravating factors. The Ukrainian Criminal Code lists thirteen circumstances deemed to be aggravating. The list is exclusive; a court is prohibited from finding any circumstance other than those listed as aggravating. By contrast, the Code lists nine circumstances deemed to be mitigating but authorizes a court to consider other circumstances.

The defense argued that under Russian Federal Military Regulations, Shishimarin was obliged to follow the orders of Makeev and Kufakov, and that Ukraine should have prosecuted Makeev and Kalinin. He emphasized Shishimarin’s age and inexperience and the stress and confusion at the time of the shooting. The defense claimed that Shishimarin had not intended to kill Mr. Shelipov and that it wouldn’t have been possible to fire aimed shots out of the window of a moving, damaged car. The defense urged the court to find that Shishimarin was innocent of the charge of murder under Article 438 Part 2.

Shishimarin reiterated his apology and regret for killing Mr. Shelipov. He said that he was nervous and didn’t want to kill Mr. Shelipov but acknowledged that he did. In rebuttal, the prosecution challenged the legality of the order to shoot Mr. Shelipov and argued that Shishimarin could have fired fewer rounds or left the car and taken Mr. Shelipov’s phone.

Following closing arguments, the court recessed for three days. On 23 May, the court reconvened to announce and briefly explain the verdict.

The court held that Shishimarin had carried out a “criminal order” by a soldier of higher rank. The court did not find Shishimarin’s claim that he didn’t intend to kill credible. In the view of the court, Shishimarin only partially admitted his guilt which meant his repentance was not sincere. As a result, the court found the only mitigating factor was his cooperation. If and how the court considered that Shishimarin surrendered is unclear.

The court held that the trial fully confirmed Shishimarin’s guilt for violating a rule of warfare combined with the murder of Mr. Shelipov. The court sentenced Shishimarin to the maximum punishment of life imprisonment, stating that “[g]iven that the crime committed is a crime against peace, security, humanity and the international legal order … the court does not see the possibility of imposing a [shorter] sentence of imprisonment.” The trial summaries do not make any reference to the prosecution proving that Shishmarin committed a crime against peace, security, humanity, and the international legal order, and those conditions are not listed as aggravating factors in the Ukrainian Code.

Following the announcement, the defense attorney told the media that he would appeal the verdict and that there were no grounds for the finding that Shishimarin’s actions violated the rules of warfare.

Questions Specific to Shishimarin’s Trial

Violating Rules of War as a Criminal Offense                                                                             

The Ukrainian court found Shishimarin guilty of (1) violating a rule of warfare and (2) murdering Mr. Shelipov. To provide adequate notice of the charge, the prosecution needed to specify which rule of warfare Shishimarin was alleged to have violated. Additionally, that rule must articulate a specific crime. For example, the Rome Statute for the International Criminal Court (ICC) categorizes war crimes: Art. (2)(a)(i) War crime of willful killing; Art. (2)(a)(ii)-1 War crime of torture, etc.

In ordinary practice, the specific offense must be broken down into elements. For example, elements of the ICC crime of willful killing are:

(1) The perpetrator killed one or more persons.

(2) Such person or persons were protected under one or more of the Geneva Conventions of 1949.

(3) The perpetrator was aware of the factual circumstances that established that protected status.

(4) The conduct took place in the context of and was associated with an international armed conflict.

Only with a specific offense broken down into constituent elements would Shishimarin have adequate notice of the charge such that he could prepare a defense or make an informed decision to plead guilty.

As discussed above, the text of Article 438 Part 1 includes “any other violations of rules of the warfare recognized by international instruments consented to as binding by the Parliament of Ukraine….” Ukraine is a State Party to numerous LOAC treaties and conventions. But which part of which international instrument Shishimarin violated does not appear to have been disclosed or, as the defense counsel noted, proved.

This is significant on several levels. There are the obvious notice issues already mentioned. Additionally, the life sentence is the result of Shishimarin being found guilty of Article 438 Part 2.  Part 2 requires one or more acts from Part 1 accompanied by an intended murder. But the Part 1 act was the unspecified violation of the rules of warfare. Without Part 1, it does not seem that there can be a violation of or informed plea to Part 2.

Only a violation of Part 2 triggers the potential of life imprisonment implicated. Without a Part 1 violation, Shishimarin appears to have at most committed domestic murder, which Ukraine defines as willfully and unlawfully causing the death of another person. The punishment range for domestic murder is seven to fifteen years, far less than life imprisonment.

Providence of Shishimarin’s Guilty Plea                                                                                       

As discussed above, after the prosecution read a factual narrative on the first day of trial, the court asked Shishimarin if he was pleading guilty and Shishimarin confirmed that he was. But the factual predicate was that Shishimairn killed Mr. Shelipov, not that he murdered him. Based on the journalist’s account, Shishimarin acknowledged “guilt” only to the fact of killing not to the charge of murder (or to the charge of violating the rules of warfare).

While the journalist’s account may be incomplete and/or there may be issues resulting from translation, subsequent events at trial reinforce that there was confusion as to which if any charges Shishimarin pled guilty. Shishimarin later told the court that he did not intend to kill Mr. Shelipov, which is at odds with acknowledging guilt for intentional murder. Similarly, in his closing argument the defense attorney contended Shishimarin was innocent of murder.

The prosecution does not appear to have introduced evidence regarding violation of the rules of warfare and focused its efforts on proving that the killing was intentional. One possible answer is that the prosecution operated on the understanding that Shishimarin had pled guilty to violating the rules of warfare and of killing (but not murdering) Mr. Shelipov.

Yet the prosecution in closing argument acknowledged Shishimarin’s admission of guilt despite Shishimarin denying the requisite mens rea for intentional murder and the defense counsel claiming innocence. The court’s subsequent announcement that Shishimarin had only partially accepted responsibility reflects that he could not be guilty of murder under Ukrainian law if he did not intend to kill.

The guilty plea confusion seems significant. If Shishimarin did not plead guilty to violating the rules of warfare, where was the evidence of his guilt on that charge? Alternatively, if Shishimarin was attempting to plead guilty to murder, the court could have paused following his testimony that he didn’t intend to kill. Defense counsel could have explained to Shishimarin that if didn’t intend to kill then he can’t plead guilty to murder, which meant he would not qualify for mitigation of his sentence. At that point the court could resume questioning Shishimarin with everyone having a shared understanding of which charge(s) his acceptance of guilt was provident.

Direct Participation in Hostilities     

The court’s verdict referred to the order that Shishimarin shoot Mr. Shelipov as a criminal order. At trial, Shishimarin was questioned whether he was obligated to follow an “obviously illegal” order, to which Shishimarin replied that he was not. But Shishimarin’s answer does not reveal whether he believed the order to be illegal.

Whether the order was illegal and whether Shishimarin knew or should have known it was illegal was at the core of the case. Maltisov’s testimony conveys the sense that he believed the order was illegal, but it’s not clear if he formed that view at the time or after the fact.

The prosecution acknowledged that the order to shoot Mr. Shelipov was based on the mistaken belief that Mr. Shelipov was using his mobile phone to report the Russians’ location. But there was no discussion of mistake of fact. Significantly, there was also no acknowledgment that real time reporting of tactical information, like location, even if done by unarmed civilians, may constitute direct participation in hostilities which renders even an unarmed civilian permissibly targetable with lethal force.

The International Committee of the Red Cross (ICRC) discussed a very similar scenario in its interpretive guidance on direct participation (DPH): “[f]or example, an unarmed civilian sitting in a restaurant using a radio or mobile phone to transmit tactical targeting intelligence to an attacking air force would probably have to be regarded as directly participating in hostilities.”

To be clear, there is no indication that Mr. Shelipov was reporting the Russian’s location, the belief that he was appears erroneous. The belief may have even been objectively unreasonable. But to establish that required inquiry, not simply a conclusion. If the belief, while mistaken, was not unreasonable, the ramifications are massive—neither the order to shoot Mr. Shelipov nor shooting him would be illegal.

Defense of Superior Orders                                                                                                        

Even if the order was illegal, the Ukrainian Code recognizes that certain circumstances exclude criminality. One of those circumstances is obeying an order or command under Article 41. While the order to shoot was repeatedly mentioned during the trial, the issue does not appear to have been analyzed under the Code. This is surprising because how Article 41 applied would seem dispositive of Shishimarin’s liability (or lack thereof) and potentially implicated Makeev.

In Ukraine “[w]here a person was not and could not be aware of the criminal nature of an order or command, the criminal liability for the act committed in pursuance of such order or command shall arise only with respect to the person who gave the criminal order or command.” That means that if Shishimarin, at the time of the order to shoot Mr. Shelipov, was not aware (and should not have been aware) that the order was illegal then Shishimarin did not commit a crime but Makeev and Kufakov did. The analysis of Shishimarin’s awareness should, but does not appear to, have considered his age, rank, experience and the circumstances and context at the time of the order.

By contrast, if an order is patently criminal, the Ukrainian Code does not provide a defense (“[a] person, who obeyed a patently criminal order or command, shall be criminally liable on general grounds for the acts committed in pursuance of such order or command.”)

Perhaps the court did not consider Article 41 because the court believed the order to be patently criminal. The court may have even have said as much, with the word “patently” in Ukrainian being translated to “obviously” in English.

If so, such an assessment, without support or explanation, seems unreasonable.  Patently (or manifestly) criminal orders by definition are easily, even instinctively, recognizable. An Israeli judge wrote that manifestly illegal orders flew “like a black flag” and constituted “a flagrant and manifest breach of the law, definite and necessary unlawfulness appearing on the face of the order itself.”

Given the ICRC’s position, the order may not even have been illegal and thus by definition could not be patently criminal. The proceedings do not appear to have established whether Shishimarin, at the time of the shooting, believed the order to be unlawful. Similar to the direct participation in hostilities discussion above, the issue of obeying an order or command seems to have warranted further exploration and clarification.

Exchanged/Missing Witnesses                                                                                                          

It would seem problematic if, as one journalist recounted, Ukraine not only exchanged Kalinin and Makeev before trial, but the prosecution failed to inform the defense until the attempt to call the two as witnesses at trial. Kalinin and Makeev were two of the surviving four occupants of the car and presumably could have clarified Kufakov’s identity, the rank hierarchy in the car, why Makeev issued the initial order to shoot, and what if anything Kalinin could have done to countermand the order. But however problematic the POW exchange was in terms of the rights and process owed Shishimarin under Ukrainian law, there may be a separate issue under Additional Protocol (AP) I to the Geneva Conventions.

Both Shishimarin and Maltisov testified that Makeev initially ordered Shishimarin to shoot. When Shishimarin refused, Kufakov then repeated the order. The court considered the order to shoot criminal, even obviously so. Given the results of the order, both in terms of Mr. Shelipov‘s death and Shishimarin receiving life imprisonment, why didn’t the prosecution charge Makeev for issuing the order to shoot? The failure to charge Makeev is particularly hard to understand given that Article 438 Part 1 also criminalizes “giving an order to commit any such actions.”

As previously mentioned, the rank hierarchy in the car was not clearly explained at trial. At times Maltisov and Shishimarin seemed to be saying that LT Kalinin in the trunk was the ranking officer.. Kalinin yelling from the trunk to the occupants to safety their weapons after the shooting, and their subsequent complaince, would seem to validate him as the ranking officer. What could Kalinin hear from the trunk? He obviously heard the shots fired. Did he hear Makeev’s initial order, Shishimarin’s refusal, or Kufakov’s follow-on order?

If the answer is yes, then why didn’t Kalinin countermand the orders? If the answer is no—that he couldn’t hear the various verbal exchanges—isn’t that Kalinin’s fault for climbing into the trunk in the first place? If the Makeev/Kufakov orders were illegal and Kalinin knew or should have known of the illegal order and countermanding it was feasible, Kalinin may be liable under a theory of command responsibility.

Makeev’s order to shoot Mr. Shelipov may qualify as a war crime under AP I. Kalinin’s failure to prevent the shooting warranted further inquiry but could potentially also constitute a violation of the AP I’s duty of commanders provision.

Ukraine, as a State Party to the Geneva Conventions and also AP I, was obliged to investigate a possible grave breach and a possible command responsibility failure. If the investigation concluded that Makeev and/or Kalinin committed the violations, Ukraine would then have a legal obligation to either prosecute the alleged offender(s) or to transfer him/them to a State that would. There is no indication that Russia intends to investigate let alone prosecute Makeev and Kalinin.​

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

Photo credit: President of Ukraine via Flickr