Two Wrongs Don’t Make a Right: Ukraine Retaliates for Savchenko in Violation of IHL

In our post concerning Ukrainian military pilot Nadiya Savchenko, which can be found here, Anne Quintin and I addressed the International Humanitarian Law (IHL) implications of Russia’s detention and prosecution of the officer, whose ongoing murder trial is postponed pending the outcome of a change of venue motion by the defence. Meanwhile, Ukraine has thrown a judicial rock of its own by detaining two Russian officers – Evgeny Erofeev and Aleksandr Aleksandrov – who face charges of terrorism and aggression in Kiev in the coming weeks. In this post, I would like to identify the contradictions of Ukraine’s positions with respect to the two situations, as well as its concomitant IHL violations, and to address the possibility of reconciling Ukraine’s rhetoric and practice with the rules of IHL.

On or about May 16 2015, two wounded fighters who identified themselves as officers of the Russian army were captured by Ukraine’s Armed Forces (UAF) following a firefight near Lugansk that resulted in the death of one Ukrainian soldier. The detainees were immediately treated and subsequently evacuated to Kiev, where they remain hospitalized to this day. Several days after their capture, both were indicted under Article 258 of the Ukrainian Penal Code (UPC) for their participation in the commission of a terrorist act, organized and carried out by the Lugansk People’s Republic (LPR), resulting in death. Notably, there appears to be no evidence, or allegations, that the Ukrainian soldier was killed in violation of IHL. Most recently, a charge of aggression under Article 437 of the UPC was added to the terrorism charge.

On May 21, the Security Services of Ukraine confirmed that Erofeev was captain, and Aleksandrov sergeant, of the 3^rd Brigade of the Special Forces of the Military Intelligence Directorate of the Main Staff of the Armed Forces of the Russian Federation (Russian abbreviation ‘GRU’), with its base in Tolyatti, Russia. Numerous video and newspaper interviews given by the officers revealed that: they were so-called ‘contracted’ (kontraktniki) Special Forces of the GRU deployed to Ukraine on 6 March 2015 in the battalion numbering 220 soldiers; they were dispatched on orders from their superiors who promised double their usual pay; that on the day of their capture their unit, comprised entirely of Russian troops, was stationed near Lugansk and was spotted by the UAF during a reconnaissance mission, prompting a gunfire exchange. Against this evidence, Russia has not relented in its denials of the involvement of Russia’s armed forces in the fighting in Donbass. In fact, on July 21, the Ministry of Defense of Russia declared that even though the two officers underwent military service in Russia, the events in Ukraine linked to them ‘took place after their discharge from military service and were not connected to it.’ On some accounts, the relatives of the accused have confirmed that the soldiers were indeed discharged. Consistent with this storyline, the LPR has maintained that Erofeev and Alexandrov are members of its own police force with no affiliation to the Russian armed forces.

There is little doubt today that either an international armed conflict (IAC) or a non-international armed conflict (NIAC) with a parallel IAC is taking place in Ukraine (for a more detailed discussion on the qualification of the conflict, see the Savchenko post). To get a clearer picture on what Ukraine should be doing with the captives as far as IHL is concerned, this post will briefly go through the different possible classifications of Erofeev and Aleksandrov under the IAC or the NIAC scenario.

Under IHL of IAC, members of the armed forces of Russia or Ukraine who fall into enemy hands are prisoners of war (POW) with combatants’ immunity, meaning that they cannot be tried for direct participation in hostilities. Russia’s refusal to recognize its own soldiers can only have a limited bearing on their POW status. As the Detaining Power, it is up to Ukraine to confirm the status of captured fighters, and if Russia’s statements raised a doubt with respect to the veracity of the officers’ POW claims, their status should have been determined by a competent tribunal pursuant to Article 5 Geneva Convention (GC) III and Article 45 of Additional Protocol (AP) I, to which both Ukraine and Russia are a party. Importantly, while such a determination is pending, captured combatants benefit from a POW presumption. If the competent tribunal had followed Kiev’s official line, namely that Erofeev and Alexandrov were members of Russia’s special forces at the time of their capture, they should have been deemed POWs. If, however, both were found to have been discharged by Russia in December 2014 and to have gone to Ukraine of their own accord, as Russia claims, several classifications were then possible.

First, if the two fighters fought alongside the armed forces of the LPR, and the rebel forces were under the ‘overall’ or ‘effective control’ of Russia, Erofeev and Aleksandrov could still be POWs as members of the non-state armed group ‘belonging’ to Russia under Article 4, GC III, so long as they fulfilled the relaxed conditions for POW status under Article 43, AP I. Under this scenario however, captured fighters of the LPR would likewise have to be accorded POW status, which Ukraine would understandably be reluctant to do because it considers the LPR to be a terrorist organization.

Secondly, if they do not fulfill the criteria for combatants under AP I, Erofeev and Aleksandrov could be deemed civilians directly participating in hostilities (DPH). Civilians DPH can be tried for taking a direct part in hostilities, but they are entitled to the protections provided for in GC IV and Article 75 AP I. A conscientious finder of fact would conclude that this classification is unlikely here, where both fighters were members of a well-organized armed force ‘under a command’ of a superior, ‘subject to an internal disciplinary system’, and carried arms openly just prior to their engagement with the UAF, as evidenced by the seizure of (Russian manufactured) arms from the officers upon their capture.

Thirdly, all the talk of kontraktniki evokes the involvement of mercenaries, individuals that directly participate in hostilities for remuneration who do not have the right to be a combatant or a POW. We can quickly dispense with this option since, according to Article 47, AP I, a mercenary cannot be a national of a party to the IAC in question.

Things are more straightforward in a NIAC scenario, save for the ‘legality of detention in NIAC’ conundrum, which will not be explored here. IHL of NIACs makes no reference to ‘combatants’ or POW status. Fighters of organized armed groups who engage in military operations against state forces are either civilians DPH, or, more controversially, individuals with a continuous combatant function. This differentiation is only important in targeting; members of both categories are liable under domestic law for actions that are normally legal under IHL, such as targeting a soldier of the belligerent state. Because they lack the combatants’ privilege in a NIAC, both Erofeev and Aleksandrov could be prosecuted for domestic crimes merely for shooting at the UAF. 

The conflict in Donbass is not, however, a NIAC. To begin with, President Poroshenko has repeatedly claimed that Ukraine’s conflict is not a war with ‘the separatists, which are supported by Russia. It is a real war with Russia’. He is right, which means that in the IAC between Ukraine and Russia members of the armed forces of both Ukraine and Russia who have fallen into the enemy’s hands are POWs and are entitled to combatants’ privilege. Indeed, this remains Ukraine’s claim with respect to Savchenko. But Ukraine has charged Erofeev and Aleksandrov with terrorism, without having first established the officers’ status by a competent tribunal in violation of the POW presumption. This treatment can only be corollary to that of civilians DPH in an IAC or NIAC scenario, which contradicts Ukraine’s unequivocal assertions that it is fighting an IAC with Russia and that Erofeev and Alexandrov are Russian special forces commandeered to Russia by the Kremlin, thereby implicitly accepting Russia’s disavowal of its troops. To sum up, while Ukraine claims to be fighting a war with Russia, at the same time it wants to punish Russian soldiers fighting that war by prosecuting them for participating in a firefight with the UAF. This treatment is contrary to IHL (Art. 43(2), AP I).

Perhaps in a belated attempt to give an international, state-centric spin to this judicial exercise, Ukraine has added the charge of ‘Planning, preparation and waging of an aggressive war’ against both officers. Since Ukraine is not a party to the Rome Statute, and assuming that somehow a low-ranking officer is capable of planning or carrying out a war, Ukraine can technically prosecute even a POW for international crimes if this is provided for under domestic legislation. But the additional charge is not enough to remedy the ongoing IHL violations. If Ukraine is to win the support of the international legal community and bolster its arguments for, at the very least, the same treatment to be accorded to Savchenko, it would be well-advised to call a POW a POW, to drop the terrorism charges for direct participation in hostilities, as well as the dubious aggression charge, and to attempt an exchange of Erofeev and Aleksandrov for Savchenko and (an)other POW(s) held by Russia.