Oleksii Plotnikov, Ph.D., international judiciary

On June 9 of this year, the so-called illegal “Supreme Court” of the fake terroristic “people’s republic” passed a “sentence” of death by firing squad on three foreign citizens: Britons Aiden Eslin and Sean Pinner, and Moroccan Saadoun Brahim. All three fought on the side of Ukraine and were captured by Russians [1].

The Prosecutor General of Ukraine, Irina Venediktova, described what was happening as a “pseudo-court” and called the “verdict” false [2]. The international reaction was no less harsh. US Secretary of State Anthony Blicken characterized the “trial” as sham and called on Russia to respect international humanitarian law [3]. The British Foreign Office called the “verdict” sham and absolutely illigitimate [4].

These events take place against the backdrop of Russia’s massacres of prisoners and civilians of the occupied territories, including foreign citizens, without any trial. What’s so special about the case of Eslin, Pinner and Saadoun?

The fundamental point is that no trial took place. The description of what is happening as allegedly “the verdict” of the “court” distorts the picture. In reality, there is no any “people’s republic” and “its supreme court”. There is a part of the territory of Ukraine occupied by Russia and a local occupation criminal “administration”, consisting of Russian officials and collaborators. This is not our assumption, but the official position of the Council of Europe [5], OSCE [6] and a number of other international structures. The provisions of international humanitarian law on occupied territories apply to this Ukrainian territory.

Such provisions are contained mainly in the Convention on the Laws and Customs of War on Land War of 1907 (The Hague Convention IV) and the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949 (Geneva Convention IV). According to Article 42 of the Hague Convention IV, the occupying power is obliged to take all possible measures “to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country” [7].

Geneva Convention IV demands that the criminal legislation of the occupied territory remain in force. In other words, there is a general prohibition, with some exceptions that do not apply in this case, to change the criminal law of the occupied territory. The only effective criminal legislation on the occupied territory of Ukraine is the Criminal Code of Ukraine.

In the criminal law of Ukraine, there is no such punishment as the death penalty. Ukraine completely abolished it in 2001 in connection with its accession to the Council of Europe and the recognition of the European Convention on Human Rights and its protocols, which prohibit the death penalty both in peacetime and in wartime. There is no death penalty in Russia either, where back in 2009 it was declared unconstitutional [9].

Thus, the fake “court” acting as part of the Russian occupation “administration” delivered a “verdict” out of the right legislation of Ukraine as a territorial state, and even Russia as a state carrying out the occupation. Such fake “sentence” violates a fundamental principle of criminal law nulla poena sine lege (no punishment without law). This alone makes it absolutely illegitimate.

The second fundamental point is the neglect of any procedure. Compliance with the rules of criminal procedure is no less important than following the rules of material law. The adoption of any “judgment” in violation of procedural guarantees is an indisputable ground for its annulment, especially in criminal law and in such important matters as the application of the death penalty. The most elementary guarantees of a fair trial are publicity, openness, and equality of arms. One can also recall the duty of the court to decide on the basis of a comprehensive and complete examination of the evidence.

Needless to say, judging by the available information, no procedural guarantees were observed in the case of pointed fake “sentencing” foreigners in Donetsk. The fake “trial” was closed, the so-called “lawyers” were present only formally, and the entire “trial” took three days, which is obviously not enough any way to consider a complex case involving many people. This alone is enough to consider that the basic guarantees of a fair trial have not been respected.

A certain A. Nikulin, who criminally “presided over this trial”, said that the “verdict was passed” allegedly on the basis of the “principle of justice” [10]. This statement is too reminiscent of the “principle of revolutionary necessity” that totalitarian regimes use to cover up total lawlessness.

The question of what exactly the three foreigners were “convicted” of deserves special attention. According to the available information, they were “accused” of allegedly: “actions aimed at the forcible seizure of power and the overthrow of the constitutional order” of the terroristic “republic” “participation in hostilities as mercenaries” and even “terrorism”.

It would be meaningless to consider the first point due to non-existence of such a subject as “peoples’ republic”, which makes it impossible to “overthrow” its fake “constitutional order”.

Neither Ukrainian nor Russian criminal law has a norm protecting the “constitutional order” of the fake “republics”, therefore, neither under the law of Ukraine, nor under the law of Russia, would it be possible to prosecute such an act.

Both in the law of Ukraine and in the law of Russia there is a criminal law prohibition of mercenarism and terrorism. The 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries defines a mercenary as any person who: (a) is specially recruited locally or abroad in order to fight in an armed conflict; (b) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar rank and functions in the armed forces of that party; (c) is neither a national of a party to the conflict nor a resident of territory controlled by a party to the conflict; (d) is not a member of the armed forces of a party to the conflict; and  (e) has not been sent by a State which is not a party to the conflict on official duty as a member of its armed forces [11].

All three foreigners clearly do not meet at least two of the mercenary criteria. All of them served on a contract basis in the Armed Forces of Ukraine that is, they did not receive remuneration exceeding the remuneration for other Ukrainian servicemen, nor did they stand out in any way from other servicemen. Moreover, it is known that Eslin and Saadoun permanently resided in Ukraine at the time of signing the contract with the Armed Forces of Ukraine [12], that is, they do not yet fall under the third criterion. The legislation of Ukraine does not prohibit the military service of foreigners, and such foreigners serving on a common basis are the same Ukrainian military personnel as citizens of Ukraine, and not mercenaries. More on why foreigners in the Armed Forces of Ukraine are not mercenaries can be found in the article by Stopfake Foundation [13].

Were these foreigners involved in terrorist activities? From the point of view of Ukrainian legislation, definitely not, because they were Ukrainian military personnel, and nothing is known about the commission of any criminal offenses while serving in Ukraine. But can a hypothetic “Russian court” consider them terrorists?

We do not know exactly what “facts” are described in the fake “verdict”, and whether it mentions any specific facts at all. However, from the available open information it follows that, in fact, the only basis for the “prosecution” was their participation in hostilities on the side of Ukraine. There is no information about any participation in war crimes or other crimes, there is no information on the basis on which their activities “were found” as allegedly “terrorists”.

It should be recalled that the Geneva Convention III Relative to the Treatment of the Prisoners of War allows to try POWs for crimes under the legislation of the state or under international law, but does not allow to prosecute for the very fact of participating in hostilities. The “convicted” foreigners are precisely prisoners of war, since, according to the fourth article of the aforementioned Convention, they fell into the power of the opposing side, belonging to the personnel of the armed forces of Ukraine. Accordingly, they should be provided with all conventional guarantees.

Among other things, under article 84, a prisoner of war may only be tried “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” [14], provided that relevant guarantees of fair trial are ensured, including adequate legal assistance. Recall that, unlike Ukraine, Russia has a system of military courts, which is actively used in proceedings against Ukrainian citizens, such as Crimean opponents of the occupation, that happens in Rostov-on-Don [15].

If Russia considers the captured foreigners allegedly guilty, then it is the Russian military court that should consider their case, and not the so-called “court” in Donetsk. Moreover, according to article 87 of the Convention, “prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power”. As long as the Russian legislation does not provide for the death penalty for Russian servicemen, it cannot be applied to persons held captive by Russia.

The blatant violation of international humanitarian law by the fake “court” is nothing but an international crime. The Rome Statute of the International Criminal Court prohibits the willful deprivation of a prisoner of war of the right to a fair trial. Also, the “sentence to death” can be considered as inhuman treatment [16]. Therefore, the commencement of a pre-trial investigation of the criminal “sentence” by Ukraine looks like a completely justified step [17].

But what is Russia trying to achieve by demonstratively taking such clearly illegal and criminal “decisions”? The answer to this question probably does not lie in the legal plane, but here one can draw an analogy with previous cases.

First, there is a similarity with the illegal criminal persecution of Ukrainian and Crimean Tatar activists in the Crimea. Thanks to the public outcry surrounding such cases as the case of Oleg Sentsov , a kind of “exchange fund” of hostages is created, the release of which becomes the subject of political bargaining. True, in the case of foreign combatants, the stakes are much higher, and bargaining is no longer with the Ukrainian government and society, but with the governments of other states. The cost of releasing the British should be, as aggressor desires, concessions in the principled and strong support that the United Kingdom is giving Ukraine.

The second analogy is the Ilascu case, widely known in legal circles. It concerned a citizen of Romania, whom the court of the so-called “Pridnestrovian Moldavian Republic”, that is, the part of Moldova occupied by Russia, sentenced to death. Ilascu was released after lengthy negotiations, accompanied by a consideration of the case in the European Court of Human Rights. The latter established the responsibility not only of Russia, but also of Moldova. The latter, in the opinion of the Strasbourg Court, did not entirely fulfill its obligations related to the release of Ilascu [17].

Therefore, the situation of fake Russian invaders’ “sentence” to foreigners in any case requires our state to take the most active steps to save its foreign military personnel.

1. https://www.bbc.com/ukrainian/features-61750643

2. https://nv.ua/rus/ukraine/politics/smertniy-virok-inozemcyam-u-dnr-reakciya-ofisu-genprokurora-novini-ukrajini-50248892.html

3. https://twitter.com/SecBlinken/status/1535047077629157377

4. https://www.dw.com/ru/v-dnr-treh-inostrannyh-dobrovolcev-prigovorili-k-smertnoj-kazni/a-62081099

5. http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=23167

6. https://www.osce.org/files/f/documents/f/a/515868.pdf

7. https://ihl-databases.icrc.org/ihl/INTRO/195

8. https://ihl-databases.icrc.org/ihl/INTRO/380

9. https://www.dw.com/uk/holova-konstytutsiinoho-sudu-rosii-dopustyv-povernennia-smertnoi-kary/a-60285734

10. https://zn.ua/ukr/UKRAINE/trokh-inozemnikh-lehioneriv-ukrajini-zasudili-do-strati-v-dnr.html

11. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-against-recruitment-use-financing-and

12. https://nv.ua/rus/ukraine/events/shcho-vidomo-pro-troh-inozemciv-yakih-zasudili-do-strati-v-okupovanomu-donecku-ostanni-novini-50248796.html

13. https://www.stopfake.org/uk/fejk-inozemtsi-yaki-voyuyut-za-ukrayinu-ye-najmantsyami/

14. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf

15. https://graty.me/ru/news/

16. https://zakon.rada.gov.ua/laws/show/995_588#Text

17. https://zn.ua/rus/UKRAINE/venediktova-vidreahuvala-na-smertnij-virok-dlja-trokh-polonenikh-inozemtsiv-z-boku-teroristiv-dnr.html

18. https://zakon.rada.gov.ua/laws/show/980_344#Text