The Prosecution of British Fighters by Pro-Russian Separatists in Ukraine

A court of the so-called Donetsk People’s Republic (DPR) announced last Thursday that two British nationals, Aiden Aslin and Shaun Pinner (as well as Saadoun Brahim, a Moroccan national), who fought on behalf of Ukraine and surrendered during the siege of the Azovstal steelworks in Mariupol, have been handed a death sentence. This came just two days after the opening of the trial was reported, at which the defendants stood accused of: committing a crime as part of a criminal group; participation of a mercenary in an armed conflict or hostilities; violent seizure of power or violent retention of power; and training for the purpose of carrying out terrorist activities. These crimes were charged under the DPR’s Criminal Code, which the Russian-backed separatist region first adopted in 2014.

The trial (and sentence) are concerning both with regard to the status to which the defendants are entitled under international humanitarian law (IHL) and the compatibility of the trial with the rights and obligations that flow from such status. This post focuses on these issues with respect to the two British prisoners (as there appears to be more information available on the circumstances of their participation and capture).

The status of the defendants

Based on the publicly-available information in the media, there seems little doubt that the two British defendants are entitled to combatant and prisoner of war (POW) status. Both appear to have officially joined the Ukrainian armed forces, having apparently served there for several years. They therefore satisfy the straightforward definitions of combatant and POW set out in Articles 43 and 44 of Additional Protocol I (API, to which Russia and Ukraine are parties).

Russia and the DPR appear to have taken the view that all foreign fighters taking part in hostilities in support of Ukraine are mercenaries and thus excluded from combatant and POW status. Indeed, as noted, one of the charges in this case alleged that the defendants were mercenaries (under Article 430 of the DPR’s Criminal Code). Article 47 API does, of course, preclude mercenaries, as defined therein, from claiming combatant/POW status. In addition, the (not widely ratified) UN Convention Against the Recruitment, Use, Financing and Training of Mercenaries (as well as the OAU Convention for the Elimination of Mercenarism in Africa) require States to criminalise mercenarism.

However, despite some differences in wording, all of these treaty rules relating to mercenaries define the status very narrowly with multiple, cumulative conditions. The two British nationals in this case appear to fall outside the definition on a number of grounds. Thus, there is no evidence that they have been promised compensation substantially in excess of regular forces, one is reportedly a national of Ukraine and both are residents, and they have been integrated into the armed forces of Ukraine. Indeed, as Ilya Nuzov cogently argued in his recent post, even those travelling to Ukraine after the February invasion specifically to join its International Legion would not be ‘mercenaries’ and would instead be entitled to POW status. Members of the pro-Russian Wagner Group, on the other hand, do appear in certain situations to have met the definition of mercenaries.

Article 430 of the DPR’s Criminal Code does seem to define mercenary in a less strict way than those treaty provisions above (‘[a] mercenary is a person who acts in order to obtain material remuneration and is not a citizen of the state participating in armed conflict or hostilities, not permanently residing on its territory, as well as who is not a person sent to carry out official responsibilities’ – Google translate). However, the citizenship/residency requirements alone would seem to exclude the defendants even under the DPR’s Criminal Code. In any case, of course, how separatists in Donetsk define ‘mercenary’ has no bearing on the POW status to which the defendants in this case are entitled as a matter of international law.

The only doubt as to their status that might arise concerns not their alleged role as mercenaries but the identity of the capturing forces and the related nature of the armed conflict in which they are held. Most of the reports of the capture and trial of Aslin and Pinner suggest that they surrendered to and were captured by Russian forces (see, e.g., here, here, here, here and here (the latter report referring to them having ‘negotiated [their surrender] with a Russian commander’)). That they were in Russian custody is also supported by reports early in their captivity that they were paraded on Russian state television and filmed in the presence of Russian soldiers (see, e.g., here and here). Assuming that they were indeed captured by Russian forces, their capture fell within the context of the international armed conflict between Russia and Ukraine to which the Third Geneva Convention applies. They would thus straightforwardly be entitled to combatant and POW status. Such status could not then be taken away by transferring them to a non-State actor (and indeed such a transfer would itself violate Article 12 of the Third Geneva Convention).  

If, however, Aslin and Pinner were captured by the separatist forces in Donetsk, the analysis is more complicated. It might, in that case, be argued that they were captured in the context of a separate non-international armed conflict between Ukraine and separatists in the east (thereby falling under the scope of common Article 3 rather than common Article 2 of the Geneva Conventions). Given that POW status does not exist under the law of non-international armed conflict, so the argument goes, Aslin and Pinner would not hold that status, as they would not have fallen into the power of the enemy (Russia). (Their combatant status, and combatant immunity, would however still apply to their conduct in context of the international armed conflict with Russia.)

Such an outcome would, of course, add to the many examples from practice where the formal division between parallel international and non-international armed conflicts often leads to arbitrary results. But that outcome could also be challenged on more formalistic grounds. First, one might challenge the premise that the fighting between the Ukrainian government and separatists in Donetsk and Luhansk constitutes separate non-international armed conflicts. To do this, it would have to be shown that Russian support and co-ordination of the separatists reaches the level required to internationalise the conflict (on the different modalities of conflict internationalization and the relevant thresholds required, see the excellent study by Kubo Mačák). Whilst some have taken the view that the separatists remain sufficiently autonomous from Russia to support the continued characterisation as a non-international armed conflict, it has been cogently argued by others that recent events have crossed the threshold of support and coordination, internationalising the conflict.  

Second, rather than looking at the overall control of the separatists by Russia, one could consider whether, in the specific operation during which the defendants were captured (the siege of the Azovstal steelworks), Russia exercised effective control over the separatist fighters such that their capture was attributable to Russia (the point here is not to attribute everything that subsequently happened to Russia, but merely to attribute the initial capture such that they fell within the international armed conflict). Indeed, reports suggest that the siege was carried out in coordination between Russia and separatists from Donetsk. Whilst not necessarily internationalizing the entire conflict between Ukraine and the separatists, this could bring the capture of the defendants in this case within the international armed conflict between Russia and Ukraine (and the defendants within the scope of combatant/POW status).  

Finally, one might alternatively argue that the element in the definition of a POW in Article 4 of the Third Geneva Convention, which requires the person to have ‘fallen into the power of the enemy’ (i.e. Russia), should be read broadly to include the defendants, whether they were technically captured by Russian or separatist forces. This might be argued on the basis of the coordinated nature of the siege in which they were captured and the close relationship between Russia and the separatist fighters (whether or not these factors would meet the thresholds for conflict internationalization or attribution). The consequence again would be to bring the defendants within the scope of the international armed conflict between Russia and Ukraine (and thus within the scope of combatant/POW status).

In any event, as noted, reporting certainly suggests that they were captured by Russia and within the power of Russian agents and, as such, are protected by the Third Geneva Convention. It was, of course, not argued by the prosecuting authorities that this constituted a non-international armed conflict in which combatant/POW status does not exist, given the stance of the DPR and Russia that the former is an independent State. The conflict between Ukraine and the DPR must, on their view, be an international armed conflict. The way in which they sought to deny POW status was therefore on the basis that the defendants were mercenaries (which, as shown above, is flawed). Had this assessment been done in good faith, of course, one would have expected to see a status determination tribunal set up under Article 5 of the Third Geneva Convention at the outset of their capture.

The trial and sentence

Given their likely status as combatants and POWs, the trial and sentence of the defendants must be assessed against the rights and obligations that attach to that status. Without purporting here to offer a comprehensive assessment, the prosecution of Aslin and Pinner appear inconsistent with a number of rules in IHL.

The first right that is obviously implicated is the right under Article 43 API of combatants to participate in hostilities and not to be prosecuted for their mere participation (where compliant with IHL). Without such a rule in international armed conflicts, individual soldiers would effectively be held responsible for the war itself.

The charges against Aslin and Pinner, noted above, all appear, to different degrees, to concern the fact of their joining the armed forces and fighting on behalf of Ukraine. The charges of ‘committing a crime as part of a criminal group’ (noted in some but not all of the reports of the trial) and ‘participation of a mercenary in an armed conflict or hostilities’ (which was shown above to be baseless) most clearly concern their membership of and fighting with the Ukrainian armed forces. There does appear to have been some attempt to allege that one or both British defendants were members of the Azov Battalion, which Russia has sought to criminalise, but that Battalion has been integrated into the Ukrainian armed forces, with members thus also entitled to combatant/POW status (see here).

The charge of ‘violent seizure of power or violent retention of power’ in Donetsk (Article 323 of the DPR’s Criminal Code) similarly implicates the fact of participating in hostilities. Thinking about the legal regimes objectively (rather than from the perspective of Russia or the separatist entities), however, the parallel international and non-international armed conflicts might again be considered a complicating factor here. Notwithstanding the combatant/POW status of the defendants, it might be argued that targeting separatist fighters and their infrastructure fell within the parallel non-international armed conflict such that those particular acts were not covered by combatant immunity. In reality, however, it is likely that the inseparability of Russian and separatist forces in many of the military operations would surely support the view that Ukrainian targeting of separatist fighters and objects in those operations would be subsumed within the international armed conflict between Russia and Ukraine. Combatant immunity would thus apply so long as those operations complied with IHL (I do not wish to get into the question of the status of such targets under the law of international armed conflict).

Finally, the charge of ‘training for the purpose of carrying out terrorist activities’ (Article 232 of the DPR’s Criminal Code) is unclear due to the undefined nature of ‘terrorism’ in the Criminal Code (at least based on my Google-translated search). It may be that this merely refers again to engaging in hostilities against Russia and/or separatist fighters, even if IHL-compliant (many States too have relied on ‘terrorism’ as a charge against their enemies, even in relation to IHL-compliant conduct).

In the event that this charge alleges conduct inconsistent with IHL (to which combatant immunity would not apply), the Third Geneva Convention grants the defendants detailed fair trial rights as POWs (which are supplemented by international human rights law). This includes Article 84, which grants POWs a right to be tried by an independent and impartial court (a standard which the courts established in pro-Russian Donetsk have been shown not to meet – see here and here). Indeed, amongst the alleged violations here, it has been reported that the trial was based on forced confessions to the terrorism-related charges. It is worth noting that, even for mercenaries not otherwise protected by the Conventions or Additional Protocols, Article 75 of Additional Protocol I grants essential fair trial rights to anyone facing a criminal trial. Similarly, even if it were the case that the defendants fell within the non-international armed conflict between Ukraine and the separatists (and thus are not combatants/POWs), common Article 3 contains essentially the same standard of justice as Article 84 (see the new ICRC Commentary).

Second, and of particular importance, the protections afforded under the Third Geneva Convention are premised on the principle of assimilation (that is, subject to the basic provisions of the Convention, POWs are to be treated equivalent to the detaining State’s own forces). Reflecting this principle, Article 102 prohibits POWs from being sentenced by any court or according to any procedure other than those to which the detaining State’s own forces are subject  (the detaining State here is Russia, as the initial captor, even if the defendants are no longer considered within the power of Russia).    

Moreover, Article 105 of the Third Geneva Convention requires, unless State security otherwise demands, that the prosecuting authorities allow the protecting power to observe the trial; in the absence of protecting powers, an impartial humanitarian organization, such as the ICRC, should be invited to attend. The reasons for this rule, and its fundamental nature, are clear. Yet there is no indication that this was complied with here.

Finally, whilst IHL does not as such prohibit the death penalty being imposed on a POW (where the rights under the Third Geneva Convention are complied with), Article 101 prohibits the carrying out of such a sentence before six months after the details of the trial and sentence have been communicated to the protecting power (or another impartial humanitarian organization). Whilst it appears that there is a right of appeal, which is likely to be relied upon, it remains to be seen whether Russia (or the DPR) will send the relevant notification to the ICRC, for example.

Concluding thoughts

It is clear that the trial of the two British prisoners and one Moroccan prisoner in Donetsk, and the death sentences passed, are extremely concerning for their obvious inconsistency with the letter and spirit of IHL. Indeed, the spokesperson for the Office of the High Commissioner for Human Rights stated on Friday that the trial itself constitutes a war crime.

The two British defendants appear to fall squarely within the definition of combatant/POW. They were reportedly captured by Russia and do not qualify as mercenaries (and the handing of them over to the separatists would itself violate IHL). Even if it was determined that they were captured by separatist rebels, there are many reasons why they nonetheless fall within the context of the international armed conflict between Russia and Ukraine. Most of charges appear to relate to the mere fact of their participation in hostilities, for which, as combatants, they should be immune from prosecution. Amongst the many problems with the proceedings, their trial by a separatist court that has been challenged for its lack of impartiality and independence clearly violates the principle of assimilation and the fair trial rights guaranteed by the Third Geneva Convention. And the lack of supervision of the trial by any impartial humanitarian organization, in addition itself to violating the Convention, casts further doubt on the fairness of the proceedings.