Ukraine Symposium – The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 2

A prior post recounted the recent trial and guilty plea by Russian Army Sergeant Shishimarin in Ukraine. That post identified a number of important substantive and procedural legal considerations from those proceedings. This post provides similar attention to a subsequent Ukrainian trial of two Russian artillery soldiers for war crimes.

The Trial of Private Alexander Bobikin and Corporal Alexander Ivanov

The primary sources for information on the second trial were Ukrainian media outlets Susipline News and Grati. On 31 May, a Kotelevsky District Court Judge sentenced Bobikin and Ivanov to 11½ years confinement for violating the rules of warfare. The underlying misconduct stems from their roles as a driver (Bobikin) and gunner (Ivanov) in a Russian artillery unit. That unit’s rocket fire damaged or destroyed several civilian buildings in Ukraine but did not cause any physical injuries to persons.

Background

Bobikin and Ivanov served in an unspecified Russian artillery unit. The media accounts do not list their ages but given their rank they are likely young. There are six enlisted ranks for soldiers in the Russian Army. Bobkin is a private, the lowest rank, and Ivanov is a corporal, two levels above private. By comparison, both Bobikin and Ivanov are junior to Shishimarin, the 21-year old Sergeant Ukraine previously sentenced to life on a guilty plea.

Bobikin and Ivanov were assigned to a BM-21 battery. The BM-21, known as the “Grad,” is a self-propelled 122 mm multiple rocket launcher, pictured above.

The Grad fires 2.8-meter-long rockets with different 20 kg warheads, though the most common is high-explosive. The range of the Grad firing high explosive rockets is 20 kilometers. The Grad is an area fire weapon, the employment of which uses a large number of rockets fired by multiple launchers at area, not pinpoint/specific targets. Bobikin and Ivanov’s battery was comprised of six Grads capable of collectively firing 240 rockets in a single volley.

According to Bobikin, in December 2021, his Grad battery notified unit members of a “training exercise” to occur in February. In early February, the unit deployed first to Kursk and then to Malinovka, near the Russia/Ukraine border north of Kharkiv. On 23 February, their battery commander informed the unit they would be attacking Ukraine the next day and confiscated the soldiers’ cell phones and watches. The commander deployed the Grad battery less than five miles from the border with Ukraine.

At 5 a.m. on 24 February, the battery commander ordered the Grad crews to open fire but the journalists’ accounts of the trial do not specify the intended target(s). Bobikin claimed that the unit fired 38 rockets in the first attack. Ivanov claimed that unspecified portions of the battery refused the initial order to fire. The Grad battery then moved across the border and fired additional rockets. Referring to the missions conducted while inside Ukraine, Ivanov testified that the soldiers in the unit were no longer able to refuse the order to fire.

Later on the 24th, the Ukrainian armed forces attacked the Grad battery while it is was in Ukraine. During the engagement, Bobikin and Ivanov’s vehicle was damaged and caught fire, wounding Bobikin. The vehicle went into a ditch and the two hid in bushes until the next day. On 25 February, Ivanonv surrendered. Bobikin, wounded, continued to hide for the next ten days, first in a children’s medical center on the outskirts of Kharkiv and then in an empty apartment, before also surrendering.

Both Bobikin and Ivanov cooperated with the Ukrainian investigation. While in Ukrainian custody, Bobikin and Ivanov also agreed to be interviewed by a Ukrainian blogger. During the interview, which was posted on YouTube on 27 April, Ivanov explained his role as a Grad gunner:

Do you know how [the] Grad shoots? [I just] see dry numbers, [specific targets] are not brought to light, they are not coordinated. The commander of the vehicle receives numbers [over] the radio, the commander of the vehicle [relays] these numbers to the gunner. The gunner aim[s], the commander check[s].

Criminal Charges Against Private Bobikin and Corporal Ivanov

On 7 May, the Prosecutor General announced via Facebook the completion of the investigation and charges against Bobikin and Ivanov for violating the rules of warfare under Part 1 of Article 438 of the Ukrainian Criminal Code. As previously discussed in the first post in this series, violations of Part 1 are punishable by imprisonment for a term of eight to twelve years.

Trial

On 17 May, the Ukrainian court held a pre-trial hearing. Both Bobikin and Ivanov attended, were individually represented by an appointed Ukrainian defense counsel, and provided an interpreter. Both requested trial by a single judge.

The trial lasted approximately two hours spread over two days. On 19 May, Bobikin and Ivanov pled guilty in a trial session lasting 90 minutes, which was livestreamed on the court’s website. On 26 May, Bobikin, Ivanov, their lawyers, and the prosecution made sentencing arguments in a trial session lasting thirty minutes.

At trial, the prosecution read out the indictment, but the journalists’ accounts reported little of the content besides that Bobikin and Ivanov were accused of using their Grad to fire rockets into Ukraine on 24 February, which damaged or destroyed civilian objects. The objects struck vary depending on the news account, with most including some combination of apartment buildings, a cultural educational center, a power station, and/or a veterinary school.

Following the indictment, first Ivanov then Bobikin pled guilty and made comments that call into question what crime they understood themselves to have committed. Similar to Shishimarin’s trial, the specific rule of warfare Bobikin and Ivanov were alleged to have violated does not appear to have been identified. Both soldiers claimed they didn’t know the intended targets they fired at and only learned of the damage to civilian objects during the investigation.

After Ivanov’s testimony, the prosecution made a request which was translated as asking to be excused from openly discussing the circumstances (time, place, effects) of the rocket fire. The court recessed for ten minutes to allow the defense to consider the request. When the trial resumed the defense said it did not object to the trial progressing without the defense examining “non-appealing” evidence. With that, some portion of the investigative filed was introduced into evidence.

According to the Wall Street Journal (but not discussed in the primary Ukrainian live stream blogs of the proceedings), the investigative file reflected the recovery of “shell fragments that hit civilian buildings, which forensic teams linked to the positions the Russian [Grad] battery was firing from – but not to Corporal Ivanov and Private Bobikin’s vehicle.” (emphasis added)

When the court questioned Bobikin, he acknowledged the rocket fire had been “coordinated” within the Grad battery. No witnesses other than Ivanov and Bobikin testified. After the two Russians responded to questions, the trial adjourned.

Eight days later the trial resumed. The prosecution acknowledged that Bobikin and Ivanov pled guilty but requested that the court impose the maximum sentence, twelve years confinement. The prosecution’s rationale was that their crime was committed by “a group of persons upon prior conspiracy,” which is an aggravating factor under the Ukrainian Code. Additionally, where there is an aggravating factor, the court is not obligated to limit the sentence to 2/3 the maximum punishment as would otherwise be the case where, as here, Bobikin and Ivanov qualified for the mitigating factors of surrender and cooperation and pleading guilty.

The journalists’ accounts of the trial do not explain what the prosecution meant by “a group of persons upon prior conspiracy.” Based on the court’s comments on sentencing discussed below, the prosecution was referring to the Grad battery unit members conducting coordinated rocket attacks.

Both Bobikin and Ivanov reiterated their guilt and expressed remorse. Their lawyers highlighted that they had pled guilty and cooperated and that they were subject to physical or mental coercion, a complete defense recognized by the Ukrainian Code. The defense lawyers requested that the court sentence the two to the minimum term, eight years confinement.

On 31 May, the court announced a sentence of 11½ years. The court claimed that guilt had been fully proved “by the evidence in the case file” and was not disputed by the defense. The court noted the soldiers’ repentance as a mitigating factor but rejected the duress claim. The court found the rocket fire had been carried out by prior agreement thus constituting an aggravating circumstance. Similar to Shishimarin, if and how the court considered that Bobikin and Ivanov surrendered is unclear. According to one news site, the court also directed the prosecution recover procedural costs and the Bokarius Institute recover forensic examination costs, presumably from Bobikin and Ivanov.

Questions Specific to Second Trial

Combatant’s Privilege/Immunity from Prosecution

The start point for the potential problems and confusion at trial may flow from seemingly not recognizing Bobikin and Ivanov’s status as members of the Russian armed forces engaged in an international armed conflict (IAC) with Ukraine. As the International Committee of the Red Cross (ICRC) summarizes, “[i]n IAC, combatants are members of the armed forces of a party [to the armed conflict]. The main feature of their status is that they have the right [or are privileged] to directly participate in hostilities.” The primary way Russian soldiers assigned to a Grad battery directly participate in hostilities is by firing rockets.

Not recognizing the combatant’s privilege led the trial court not to consider the immunity attached to it. Again per the ICRC, “[c]ombatant immunity bars the prosecution of combatants for mere participation in hostilities. Thus, they are immune from prosecution for murder and destruction of property committed as part of an armed conflict, unless such acts constitute war crimes.” (emphasis added)

It is invalid to claim that the mere fact rockets from the Grad battery struck civilian objects equates to the strikes being illegal. This is not to say that the rocket fire was legal, but simply that illegality was not established and thus couldn’t (or shouldn’t) have resulted in criminal liability for Bobikin and Ivanov. The analytical start point should have been the recognition of their combatant’s privilege. From that mooring, whether any, all, or none, of the strikes violated the LOAC could be examined.

Use of explosive weapons in populated areas is controversial. Some seek to render such use, including specifically the Grad, per se illegal. But unless and until that happens, rocket fire in a populated area, even when it damages or destroys civilian objects, is not by itself presumptively violative of LOAC.

Without the presumption, proving the Grad rocket strikes violated the LOAC required a considerable amount of evidence, either to be proved by the prosecution or admitted to by the accused. The court should not have been able to properly assess the legality of the strikes without considerably more information than was at least publicly disclosed at trial. This information includes:

– What was the Grad battery’s missions for each strike?

– What were the Grad battery’s targets?

– How effective/accurate were the Grad battery’s attacks?

– Was the efficacy/accuracy normal?

– What was the anticipated military advantage from attacking the targets?

– What were the expected civilian casualties and property damage as a result of the attack?

– At the time of the fire mission order, what information did the commander have (or should the commander reasonably have had)?

There is no evidence that Bobikin or Ivanov knew the answers to any of those questions. The limited evidence at trial was not what they knew (target coordinates) but what they didn’t know, (specific target and rationale). This is hardly surprising. Lower ranking enlisted soldiers would not know, nor should they be expected to know, the information above.

For this reason, when an individual faces criminal liability for artillery strikes, it is the commander who ordered it. Indeed, other than this case, initial research has not identified a single instance where criminal liability was imposed on lower ranking enlisted members of an artillery unit, specifically a gunner and even more so a driver, for firing artillery during an IAC and as the result of orders from a military superior.

A brief discussion of artillery and artillery operations helps explain why that is so, and informs the other questions below.

Artillery is referred to as the “King of Battle” because of its importance to a military commander. The reference stems from the role of the King in chess—if you lose your king, you lose the match. By way of illustrating artillery’s destructive power, the U.S. Army Medical Command assessed that during the Second World War, artillery and mortar fire accounted for 65% of the American casualties in the European and Mediterranean theatres and 47% in the Pacific.

As important as artillery is to military commanders on one side of an armed conflict, neutralizing that artillery is very often near, if not at, the top of the opposing military commanders’ high value target list. One way military commanders protect their artillery assets is to minimize the time they are stationary and without camouflage and to move them after a firing mission. Preparing to fire often entails repositioning individual artillery pieces into the open and removing some or all the camouflage, increasing the chances of detection.

When artillery fires, the chance of detection drastically increases. The sound and smoke of the firing obviously increases the chance of visual identification. But potentially much more problematic is that many armed forces employ “counter battery radars” which detect incoming artillery projectiles and precisely determine their point of origin.

Once the point of origin is identified, it is standard military practice to immediately direct combat power to the firing location. If the members of an artillery unit wish to maximize their chance of survival, they will frequently relocate and reposition. Emblematic of the precarious nature of artillery operations in combat, consider that while Bobikin and Ivanov survived, the Grad battery appears to have been neutralized within hours of its first fire mission and multiple launchers didn’t survive to the second day of the war.

On the receiving end, one thinks in terms of an artillery “strike,” while at the battery itself the actions to send the projectiles on a certain trajectory, range, and explosive charge, are referred to as a “fire mission.” Proficient artillery units conduct fire missions, meaning to fire several rounds, in less than a minute. The fire mission process is highly prescribed and choreographed. On one hand, the commander wants to ensure safety at the firing position and that the artillery is properly oriented. On the other hand, time is of the essence.

For a gunner like Ivanov, the following commands may well comprise all the information he knows about a fire mission and what he is shooting at. It’s all the information he needs to perform his duties as a gunner.

Fire Mission: [alerts crews]

Pieces to Fire: [which system(s) will fire]

Projectile: [the type of projectile]

Ammunition Lot: [designates the manufacturer / date of the ammo]

Charge: [amount of propellant]

Fuze: [fuze type]

Fuze setting: [fuze setting, generally time or proximity]

Deflection: [what direction (left or right) to traverse the tube]

Quadrant: [how much to raise or lower the tube]

Method of fire: [indicates the number of rounds and type of ammunition to be used]

All together this could sound like:

FIRE MISSION, PLATOON ADJUST, NUMBER 3, 1 ROUND, SHELL HE [HIGH EXPLOSIVE], LOT A/H, CHARGE 4, FUZE QUICK, DEFLECTION 3024, QUADRANT 347, 2 ROUNDS IN EFFECT

Those commands are for a U.S. Army artillery battery firing shells and no doubt differ from those of a Russian Army unit firing rockets. But it provides an illustration of the type and amount of information known by soldiers like Bobikin and Ivanov. Is the fire mission above, which is an order, illegal? Is it manifestly or patently illegal?

The point is that during a fire mission all soldiers have an identified role and assigned tasks. For soldiers like Bobikin and Ivanov they are micro tasks involving their individual Grad. Other soldiers, in command posts, fire direction centers, and forward observation points, all have different macro tasks including identifying targets, determining the most effective way to attack those targets and assessing the effectiveness of a strike through a battle damage assessment (BDA).

The BDA informs the commander whether the strike accomplished its purpose. If so, the unit can reposition and shift to other targets. If not, the commander has to determine whether to reengage the target with the original firing unit and, if so, whether they should do so immediately or reposition first.

On 24 February, based on the soldiers’ testimony, if the battery commander received BDA from the first strike, he does not appear to have further disseminated it down to Bobikin and Ivanov’s level. If correct, this would hardly be surprising, particularly as applied to Bobikin, a private serving as a driver. Ivanov, a corporal serving as the gunner, may have recognized that the firing coordinates for subsequent fire missions were different than for the first. From that perhaps he inferred that the first strike accomplished its purpose. But without knowing the answers to the questions listed above, Ivanov would not have possessed the information to know that his actions in firing rockets violated the rules of warfare.

Ultimately, failing to recognize Bobikin and Ivanov were privileged to fire rockets meant that there could not be a valid assessment of whether and when the rocket fire became unlawful. It also made it difficult, if not impossible, for the prosecution to specify which rule of warfare the two allegedly violated.

Unspecified Charge

Bobikin and Ivanov were convicted of violating an unspecified rule of warfare under Part 1 of Article 438. This is problematic for the reasons discussed in my first post, which described Shishimarin’s trial.

Two possible rules come to mind, the prohibition against indiscriminate attack under Additional Protocol I to the 1949 Geneva Conventions (AP I) and of property destruction under the 1907 Hague Convention’s Regulations. While Ukraine is a State Party or acceded to both AP I and the 1907 Hague Convention, obviously the Prosecution didn’t charge a violation of a rule from either international instrument. Without knowing the contents of the portions of the investigative file admitted into evidence, it’s impossible to know for sure if such a charge would have been viable, but it seems doubtful.

Under AP I, it is a grave breach to “launch an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects….” (emphasis added).

Under the Hague Convention, it is prohibited to “destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.” In terms of breaking down that prohibition into elements, the International Criminal Court (ICC) does so as follows:

(1) The perpetrator directed an attack. (emphasis added)

(2) The object of the attack was civilian objects, that is, objects which are not military objectives.

(3) The perpetrator intended such civilian objects to be the object of the attack. (emphasis added)

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

(5) The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

It’s not clear that low ranking soldiers like Bobikin and Ivanov can “launch” an attack and they certainly did not direct it. There was a mens rea component to their actions in firing rockets. They knew they were firing rockets and they intended to fire rockets. But violating AP I requires knowing (awareness of a near certainty) that the strike will cause not just damage but excessive harm to civilians or civilian objects. Violation of the 1907 Hague Convention requires that Bobikin and Ivanov intended, or had as their purpose in firing, that civilian objects would be struck. Based on journalists’ accounts of the trial there was no discussion of what Bobikin knew, and the discussion as to Ivanov was that he never knew the target specifics.

If the Wall Street Journal report that a forensic examination of rocket fragments recovered from the civilian objects could not connect the rockets to Bobikin and Ivanov’s Grad was accurate, it’s even harder to understand how their actions were criminal.

For Ivanov, in failing to strike or damage civilian objects, he seems to at most be guilty of an attempt. The Ukrainian Code defines attempt in part as a “directly intended act.” There is evidence that Ivanov intended to fire Grad rockets but no evidence that he intended to strike civilian objects. He obviously knew the rockets would land somewhere, but without knowing the answers to at least some of the questions previously raised, it seems too large a leap to infer a criminal mens rea.

Assessing Bobikin’s potential liability as a driver is even harder. Bobikin driving the Grad facilitated, at least in part, Ivanov being able to fire the rockets. In that sense Bobikin appears to be an accomplice analogous to the getaway driver for a group robbing a bank. But the getaway driver is only an accomplice if they knew or should have known of the robbery and they intended their driving to be of assistance to that endeavor. Bobikin obviously intended to drive the Grad and position it such that Ivanov could fire. But again, firing rockets is not a crime. There was no evidence that Bobikin drove the Grad with the intent of facilitating an illegal strike.

If drivers are to face criminal liability, it’s hard to reconcile the disposition of Makeev vs Bobikin. Makeev, an officer, drove the car from which Shishimarin shot Mr. Shelipov. Makeev first identified Shishimarin and issued what a Ukrainian court labeled an illegal order to shot, yet Makeev was not even charged. By contrast, Bobikin, a private, appears to have only driven the Grad, under orders, and received an 11½-year sentence.

The lack of clarity concerning which rule of warfare Bobikin and Ivanov allegedly violated only increases when the absence of evidence that their rockets struck civilian objects is considered.

It was never established that the rockets which struck civilian objects violated LOAC. But even assuming arguendo that they did, under what theory may criminal liability be imposed on Bobikin and Ivanov (who missed) for damage caused by rockets from other Grads fired by other crews? This seems dangerously close to violating the widely-accepted rule that “[n]o one may be convicted of an offence except on the basis of individual criminal responsibility.”

Superior Orders

Unlike Shishimarin, where the defense of superior orders was at least raised, there was minimal discussion of the defense in Bobikin and Ivanov’s trial.

As discussed in the Part 1 post on the trial of Shishimarin, a superior orders discussion requires establishing whether an order was illegal and if so whether it was patently so. Absent a patently illegal order, what the accused thought of the order’s legality at the time it was issued should also be considered.

Without the answers to the questions discussed above, the artillery commander’s order that the Grad battery fire rockets into Ukraine cannot be assessed as patently illegal. Accordingly, what Bobikin and Ivanov thought (or should have thought) regarding the order’s legality at the time it was issued was extremely important. But it does not appear to have been established by the court.

We don’t know what Bobikin, an artillery driver, and Ivanov, an artillery gunner, knew or should have known regarding an order to fire rockets at targets kilometers away and well beyond the line of sight. Bobikin, for the reasons already discussed, likely knew nothing about the targets nor should have. Per his interview with the Ukrainian blogger, Ivanov knew coordinates to an aim point but beyond that claimed to not know what the unit was targeting. Why portions of the Grad battery refused to conduct the initial fire mission does not seem to have been explored.

Without establishing that the order to fire was illegal and that Bobikin and Ivanov knew or should have known it was, the complete defense of obeying an order or command seems to have been available but not considered.

Punishment

Despite having surrendered, cooperated, apologized, and pled guilty, Bobikin and Ivanov received close to the maximum sentence—11½ years out of a maximum possible punishment of 12 years. As mentioned earlier, the punishment range for domestic murder in Ukraine is seven to fifteen years. Thus, Bobikin and Ivanov, who at worst caused property damage without physical injury, received a term of confinement in the middle of the range for murder.

One of the reasons the court cited in imposing the sentence was the aggravating factor of Bobikin and Ivanov committing a crime as part of “a group of persons upon prior conspiracy.”

The presence of the aggravating factor obviated the requirement under the Code to limit the sentence to 2/3 the maximum sentence. But this aggravating factor seems hugely problematic, and in levels.

Under the Ukrainian Code, “[a] criminal offense shall be held to have been committed by a group of persons upon prior conspiracy where it was jointly committed by several (two or more) persons who have conspired in advance, that is prior to the commencement of the offense, to commit it together.”

What criminal offense did Bobikin and Ivanov or any member of the Grad battery conspire to commit? As previously discussed, firing artillery in wartime is not per se a crime, even where civilian objects are damaged or destroyed. That Bobikin and Ivanov, along with the other members of the unit, fired rockets into Ukraine reflects an agreement in advance to do so. But there is no evidence that the agreement was to fire rockets into Ukraine in a manner which violated the LOAC.

Without a criminal offense, there cannot be a criminal offense jointly committed. As a result, the aggravating factor does not appear to have properly applied. Without the aggravating factor, and with rockets fired by the accused having missed civilian objects, increasing Bobikin and Ivanov’s punishment because of the actions of others seems akin to impermissible collective punishment.

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

Photo credit: Ministry of Defence of the Russian Federation