The Case of Russia’s Detention of Ukrainian Military Pilot Savchenko under IHL

There has been much debate in recent weeks over whether international humanitarian law (IHL) authorizes internment in non-international armed conflicts (NIACs) (see posts here, here and here). Both sides have presented convincing arguments but without applying them to concrete situations. In this regard, Russia’s ongoing detention of Ukrainian Air Force officer Nadia Savchenko provides a timely case study. As detailed below, the detention of certain categories of people raises questions during both NIACs and international armed conflicts (IACs), depending on who the detaining authorities are.

Lieutenant Savchenko was allegedly captured in full uniform in Eastern Ukraine on or about June 18, 2014 by the armed forces of the Luhansk People’s Republic during active hostilities. Several days later, the separatists transferred her to Russian special forces, who in turn transported her to Russia. Russia, however, claims that Savchenko crossed the border voluntarily and was detained as an undocumented refugee. In any case, on July 9, 2014, Russian authorities announced that Savchenko was detained in a civilian detention center in Voronezh, Russia, facing charges of directing mortar fire that killed two Russian journalists during an attack on a separatist checkpoint outside of Luhansk. Currently, Savchenko is kept in a detention facility in Moscow, facing an additional charge of trespass.

Savchenko, who is on a hunger strike to protest the charges, has filed a complaint before the European Court of Human Rights alleging that her detention violates her rights to liberty (Article 5) and a fair trial (Article 6) as enshrined in the European Convention on Human Rights. The ECtHR gave Savchenko’s initial application priority, but on February 10 refused to grant Savchenko’s Rule 39 request for interim measures compelling Russia to immediately release the prisoner. The court instead asked Savchenko to end her hunger strike and Russia to provide more facts concerning her detention.

Interestingly, on 23 January 2015, the Parliamentary Assembly of the Council of Europe (PACE) issued a resolution calling on Russian authorities to immediately release Savchenko and other detained POWs. Such a claim raises numerous questions under IHL, including the classification of the armed conflict and the basis for Savchenko’s detention.

Classification of the conflict in Eastern Ukraine

The legality of Savchenko’s detention depends on the nature of the conflict during which she was captured or otherwise fell into Russian hands. At least because Savchenko’s defence will probably invoke IHL, the ECtHR may decide to classify the situation in Eastern Ukraine in order to determine whether IHL applies and to what extent it informs or displaces Article 5 of the ECHR.

The Geneva Conventions apply in armed conflicts between High Contracting Parties or in cases of belligerent occupation. We leave aside the rather fanciful argument that the rebels of Donetsk and Luhansk Peoples’ Republics are fighting for self-determination, thus warranting application of the law of IAC under Article 1(4) of AP I. There are two additional ways the conflict in Eastern Ukraine could be deemed an IAC.

First, because the threshold for IAC is quite low, the inclusion of Russian soldiers among the ranks of pro-Russian rebels fighting the Ukrainian army would create an IAC between Ukraine and Russia, in parallel to the NIAC between Ukraine and the rebels. While Russia has steadfastly denied sending troops to Ukraine, numerous reports point to the active involvement of Russian troops on Ukrainian territory. If even one Russian soldier is fighting against the Ukrainian army, Common Article 2 applies.

Second, as reasoned in Tadic, an IAC would exist if Russia exercised ‘overall control’ over pro-Russian forces that goes beyond the ‘mere financing and equipping of such forces’ to include ‘participation in the planning and supervision of military operations’. There is ample evidence of Russia providing  arms and financing to the separatists. However, it remains highly questionable whether Russian authorities are directing or planning operations.

The conflict can thus be classified in three different ways: 1) as one IAC between Ukraine and Russia; 2) as an IAC with a parallel NIAC; and 3) as a NIAC between Ukraine and the pro-Russian rebels – a classification with which the ICRC seemed to agree in July 2014, when Savchenko fell into Russia’s hands. If the ECtHR finds that Savchenko was captured during the course of an IAC, she should have been deemed a POW under Article 44 of AP I (which both countries have ratified) and Article 4(A)(1) of GC III as soon as she fell into Russian hands. Alternatively, if her capture took place within the scope of a NIAC, then IHL applies only to her initial capture by the rebels and her transfer to a third State. It would no longer cover her detention by Russia.

Legal basis for Savchenko’s detention

If Savchenko was detained during an IAC, rendering her a POW, her internment by Russia would be authorized under Article 21 GC III, and she could be detained without judicial guarantees until the ‘cessation of active hostilities’ (Art. 118 GC III). This holds true even if one follows Russia’s version of events, i.e. that Savchenko was arrested in Russia as an undocumented refugee. Since she promptly informed Russian authorities that she was a member of Ukraine’s armed forces, Article 45 AP I establishes a presumption of POW status in her favor. That she was not wearing a uniform when captured would not cause Savchenko to lose her POW status, since the obligation to distinguish only arises when combatants ‘are engaged in an attack or in a military operation preparatory to an attack’ (Art. 44(3) AP I).

However, Russia interned Savchenko as a civilian suspected of aiding and abetting a common murder under Article 105 of Russia’s Penal Code. In an IAC scenario, this is problematic for at least two reasons. First, IHL would require Russia to try Savchenko—as a POW suspected of committing a crime with a nexus to the armed conflict—for the war crime of unlawful killing of civilians, a grave breach under Article 85(3)(a) of AP I. This would have to be done by the same courts having jurisdiction over similar crimes committed by members of the Russian armed forces (Art. 102 GC III).

Russian law provides for the prosecution of war crimes under Article 356 of the Penal Code, ‘The use of unlawful methods of warfare’. Notably, such a prosecution would not change Savchenko’s status as a POW: POWs may (and must) be prosecuted for war crimes, but they do not lose their status for having committed such crimes. Secondly, Russian federal law  gives jurisdiction over war crimes committed by members of foreign armed forces to Russia’s Military Courts, while Savchenko’s case has been heard exclusively by civil Rayonnyi (District) Courts. Therefore, if the ECtHR classifies the conflict as an IAC, Savchenko’s prosecution as a common criminal under domestic law in civil courts would run afoul of the IHL of IAC. Under this scenario, it will be interesting to see whether the Court will go beyond its holding in Hassan v. the United Kingdom to conclude that the prosecution of a POW by civilian courts, in violation of IHL, would violate Article 5(1) of the ECHR interpreted in light of the rules of IHL of IAC applicable to POWs. In any case, what is certain is that–contrary to PACE’s declaration – as a POW, Savchenko does not have to be released.

IHL of NIAC

As stated earlier, Russia is treating the conflict in Eastern Ukraine as a NIAC. Its treatment of Savchenko as a foreign national arrested pursuant to domestic law is thus consistent with its classification of the situation.

The question of Savchenko’s initial capture by the pro-Russian rebels re-opens the door to the fascinating debates on whether IHL contains an authority to intern during NIAC. There is no need to go over the excellent arguments already made on this blog and elsewhere; suffice it to say that we agree with Laurence Hill-Cawthorne and Dapo Akande, Kevin Heller, Jonathan Horowitz and Rogier Bartels that the IHL of NIAC does not contain any authorization to intern.

We will comment briefly on Savchenko’s alleged transfer to Russian forces. The IHL of NIAC does not regulate transfers. The only provision arguably applicable is Article 17 of AP II (deemed to be customary) prohibiting the forced movement of civilians. Even if such a transfer violated IHL, however, this is immaterial here because Savchenko was eventually detained by a State not party to the neighbouring NIAC and hence to which IHL does not apply. Russia’s apprehension of Savchenko would then fall within the ambit of Article 105 of Russia’s Penal Code. Of note, Article 12(2) of the Penal Code contains a passive nationality provision providing for jurisdiction to prosecute persons suspected of having committed crimes against Russian nationals abroad. Consequently, under the NIAC scenario, if there is sufficient evidence tying Savchenko to the deaths of Russian journalists, the ECtHR should not consider even an unlawful transfer as invalidating an otherwise legitimate detention of a murder suspect under Article 5(1)(c).

In conclusion, looking through the lens of the ECtHR, there seem to be convincing grounds to conclude that Russia’s detention of Savchenko is permissible under Article 5(1)(c) of the ECHR in a NIAC scenario. In the IAC scenario, however, regardless of how Savchenko fell into Russia’s hands, the real challenge for the Court will be to determine whether Savchenko is indeed a POW. If so, it will have to decide whether her internment and prosecution by a civilian court in violation of IHL would constitute a violation of Article 5(1) of the ECHR. An affirmative answer would be desirable for IHL and international human rights law. Article 5(1) of the ECHR indeed provides that any deprivation of liberty shall be ‘in accordance with a procedure prescribed by law’. In the case at hand, the relevant procedure is prescribed by Article 102 of GC III, which clearly states that sentences pronounced against POWs are valid only if the conditions of the article and GC III more broadly have been respected.