Since their exit from the ruins of “Azovstal”, the ARC has been monitoring the situation with Ukrainian prisoners of war from among Mariupol’s defenders. We didn’t write about it because we didn’t want to jeopardize any negotiations while still hoping for the return of Ukrainian military. However, familiarity with the invaders’ methods in the Russia-occupied Crimea gave us gloomy views about the possibilities for an exchange, and the trial of the “Azov” servicemen, border guards, national guards, and other Mariupol defenders appeared, unhappily, likely. Recent events have confirmed our assumptions. As a result, in this post, Ph.D. Alexey Plotnikov, will attempt to forecast the future “court” based on the Crimean experience.
What kind of “trial” over the Azov defenders are we talking about?

It is known that the defense of the “Azovstal” plant in Mariupol was completed in May 2022, when, by order of the command, the defenders laid down their arms and surrendered to Russian troops. Specific agreements allegedly reached between Ukraine, Russia, the UN and the International Committee of the Red Cross remain unknown. According to the Ukrainian authorities, there are certain obligations that the Ukrainian defenders will be left alive and returned to Ukraine as part of the exchange procedures [1].
Over the past more than 100 days, out of almost 2,000 defenders of “Azovstal”, 95 have been returned [2]. More than 50 died in Olenivka [3]. There are reports of torture and inhuman treatment of prisoners [4]. The non-admission of representatives of international organizations to the captives [5] speaks in favor of the reliability of these reports.

The occupying power and its local collaborators are clearly demonstrating their unwillingness to return the Azov defenders to Ukraine. On the contrary, it is known that they are preparing a “trial” of prisoners [6], which is called almost an “international tribunal” [7]. However, as the “denazifiers” – so is “Nuremberg”. Instead of an international tribunal, they can only come up with another fake, but this fake threatens Ukrainian soldiers with real repressions, exiles, and reprisals, which will be presented as a “death penalty” by a “court sentence”.

The seriousness of the situation is evidenced by the submission by the Ministry of Justice of Ukraine of an application to the European Court of Human Rights in accordance with Rule 39 of the ECtHR regulations. This, among other things, defines the inadmissibility of using Ukrainian defenders in any kind of so-called tribunals and other show trials orchestrated by Russian invaders [8]. The ECtHR granted this application immediately, obliging Russia to refrain from any actions that could violate the rights of Ukrainian prisoners of war [9].

It should be said here that the Strasbourg Court grants applications under Rule 39 only if there is unequivocal evidence of serious and irreparable damage to the rights protected by the Convention, which may occur in the near future. Consequently, not only the Ukrainian government, but also a neutral international institution has quite convincing reasons to believe that a fake “trial” against the Azov defenders can be organized at any moment.

On the nullity of the occupier’s “court”
The ARC has previously written [10] about the Russian occupation authorities’ ardent desire to imitate “justice” in the seized territories. Even the question of whether the scheduled trial may be regarded a “judgment” is irrelevant. Similar to how the “referendum” in Crimea was not a referendum and Putin is not a “democratically elected president”, this is not a court. If an imitation of the “tribunal” occurs, it will be the same action for the aggressors’ “internal audience” as the “prisoners’ procession” in Donetsk. This is not a violation of judicial procedure, but rather another instance of inhumane and humiliating treatment of prisoners of war by the occupiers – this time in the guise of a “show trial”, accompanied by a massacre.

Any potential “sentence” handed down by such a court should be considered a “sentence” enclosed in quotation marks. The European Court of Human Rights expresses the “verdict” and the “Court of the DPR” (in quotation quotes) in cases of foreign individuals who have already been “sentenced” to death by the “court of the DPR” [11]. For the ECtHR, as an external and unbiased observer, it is abundantly clear that there is no “DPR” and no “DPR court”, thus it targets its demands directly at the perpetrator, the Russian Federation. Obviously, the latter disregards these demands. In such a scenario, the ECtHR can only record Russia’s violation of its human rights responsibilities, making it impossible for Council of Europe member states to accept the Russian version of events for political reasons. In addition to the recent “trials” in Donetzk, the show “trials” in the Crimea can serve as “inspiration” for the organizers of a potential “trial” of the Azov defenders.

Crimean trials: cleansing of the “wrong” Crimeans
As “every occupier knows”, the fake “people of Crimea” allegedly supported the attempted annexation of the Crimea. The peoples who really have the right to be called “the peoples of Crimea” – the indigenous Crimean Tatars, Karaites and Krymchaks, strongly opposed the occupation of the peninsula. It is not surprising that the first and strongest blow of the invaders fell on them. Murders, torture, enforced disappearances, illegal searches, deprivation of property, preventing indigenous leaders from entering Crimea – all these methods were in the arsenal of the Russian punitive structures. One of the main such method was the imitation of “trials” against the indigenous peoples of Crimea, disguised as “fight against terrorism and extremism”. Let us recall the main ones.

A number of falsified “criminal charges” were brought against the leaders of the Crimean Tatar Mejlis, in particular Mustafa Dzhemilev, Refat Chubarov, and Ilmi Umerov. In the so-called “February 26 Case”, six individuals were given prison terms ranging from 3.5 to 4.5 years. In 2016, after an invaders’ “court” deemed the Mejlis “to be an extremist organization” and “prohibited its activities”, a wave of repressions swept over its members. Thus, in 2018, a group of “Crimean Solidarity” civil activists led by journalist Server Mustafayev were detained [12]. They were convicted of “forming a terrorist organization” and “plotting a violent takeover of power” and “sentenced” to between 13 and 19 years in prison. In September 2021, after the first summit of the Crimean Platform, a group of Crimean Tatars were kidnapped in Crimea, among them was Mejlis member Nariman Dzhelal. They are accused of alleged “planning an act of sabotage”; the “verdict” is anticipated to be announced on September 21 [13]. Others, such as Qurultay representative Asan Egiz and Mustafa Dzhemilev’s chauffeur Akhtem Mustayev, were kidnapped and tortured to obtain a “confession” for illicit acts.

Since 2015, the occupying “authorities” have persecuted Crimean Tatars on the basis of their religion, resulting in the “Crimean Muslim case” and the “Hizbut-Tahrir case”. More than sixty individuals have been jailed on these allegations, and there are reports that they were subjected to torture, mock execution, ill-treatment, and confinement in inhumane conditions [14] [15].

Other Ukrainians guilty of nothing but opposing the occupation were also punished by the invaders’ “legal system”. Oleg Sentsov, Olexander Kolchenko, Gennady Afanasiev, and Alexei Chirniy were “convicted” for allegedly “planning terrorist actions”. Similar allegations were made against “Crimean saboteurs” Yevgen Panov, Redvan Suleymanov, Gleb Shabliy, Volodymyr Dudka and others, who were suspected of “planning acts of sabotage against Crimea’s infrastructure”. These cases were manufactured according to a same scenario: abduction, torture, physical and psychological pressure, persuasion to “confess”, and exemplary conviction [16]. Only the details changed, for example, those who, under pressure, threats and torture, agreed to “cooperate with the investigation” received a milder “punishment”.

To fall into the millstones of occupational “justice”, it is not even necessary to express displeasure with the occupation; merely belonging to a group deemed “undesirable” by the Russian invaders is sufficient. Thus, repressions afflicted the Jehovah’s Witnesses in 2021-2022: more than ten individuals were jailed, while others were subjected to different restrictions. There are claims of torture and inhumane treatment of inmates in Russia, as well as their relocation to detention facilities in Russia [17].

The case of members of the Noman Çelebicihan Battalion is most similar to the prosecution of the defenders of Azovstal. Noman Çelebicihan Battalion is a volunteer formation reportedly involved in the so-called “Crimea blockade” in 2016. Between 2018 and 2021, the Russian occupying “authorities” in Crimea detained and convicted at least six people on charges related to the battalion, which the occupiers consider to be an “illegal armed group”. According to available information, some of the detainees had nothing to do with the battalion, and torture was used to obtain “confessions” [18].

Common and different in the Crimean affairs and the persecution of the Azov defenders
The political aspect of these activities is the primary factor uniting them. It is unnecessary to discuss justice, neither in occupied Crimea nor in the occupied Donetsk. The “trial” is staged for publicity purposes and to scare the representatives of specific groups. In the Crimea, these included residents who opposed the occupation, as well as representatives of indigenous peoples and religious organizations that the occupiers found troublesome.

In the “Azovstal” case, the intended audience is Russian society as a consumer and observer of propaganda, residents of the occupied regions, who should be alarmed by the threat of invaders’ “court”. Perhaps, Russian invaders also imply the influence on the international community, which is given distorted information about the “condemnation” of Ukrainian “criminals”. In any event, there is no purpose in addressing the concept of “justice” in this context, as justice as the application of law by a specially authorized, competent governmental authority cannot occur a priori.

The second shared characteristic is the goal to obtain a “confession” from the “accused”. To do this, all forms of coercion are employed, ranging from torture and death threats to assurances that the “incarceration regime will be loosened”. Given the history of “justice” in the Crimean cases and the evidence known concerning the torture of seized defenders of Mariupol, none of these “confessions” can be accepted.

Specification is that the “court of the DPR” is not a court. Regarding the defenders of “Azovstal”, an organized criminal group is imitating a “court”, despite the fact that it cannot create courts by definition because the “bodies” it creates lack legality and competency. Therefore, any repressive activities against Ukrainian POWs should not be viewed as a symptom of corrupt justice, but rather as the activities of an illegal criminal organization that is subjecting those under its control to prohibited forms of treatment.
The key discrepancy is in the status of the “defendants”. In the Crimea, it was about civilians, and in the Donetzk and Mariupol it was about prisoners of war. In addition to human rights law, prisoners of war are also protected by international humanitarian law. They cannot be tried for having taken part in hostilities and attempting to “convict” them is in itself a war crime under Article 8(2) of the Rome Statute of the International Criminal Court – deliberately depriving a prisoner of war or other protected person of the right to a fair and normal trial. So the “judges”of the Donetzk terrorists are war criminals who must be held accountable both under the criminal law of Ukraine and under international criminal law.

Obviously, the occupiers will not agree to follow the requirements of international criminal law and human rights law, and international justice really does not have effective instruments to bring the perpetrators to justice. And now the release of the Crimean prisoners and captured Ukrainian defenders depends on the Armed Forces of Ukraine, as their victory will guarantee the victory of international law.

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