Ukraine’s War Crimes Trials: Legal But Not Necessarily Wise

The war crimes trial of a Russian soldier in Ukraine – which concluded on May 23, 2022 with a conviction and life sentence for the defendant – was permissible under international law. And with the eyes of the world on them, Ukrainian authorities would have wanted the proceedings to be played entirely by the book.

But nonetheless, conducting a war crimes trial during active hostilities, and by a civilian court, is not normal. Nor may it be wise.

As an expert on the law of war – that is, the set of international legal protocols and conventions that set out the rules of what is allowed during conflicts – I am concerned that trying a prisoner of war in such circumstances is problematic for several reasons. Further, it could set a disturbing precedent. While the Ukrainian trial may well have been conducted under due process of law, the same may not be true if Russia decides to follow suit.

The right time to prosecute war crimes

There are, of course, advantages to holding a trial so close to an alleged crime – in this case, the shooting death of an unarmed civilian in the Ukrainian village of Chupakhivka on Feb. 28, 2022. For example, it makes it easier to gather evidence because the crime scene is still fresh and eyewitness memories more recent. Such trials could also provide timely justice for the loved ones of civilians killed.

Moreover, Ukraine has the moral high ground here. The country is the victim of clear-cut aggression from Russia. And rights experts have detailed a pattern of war crimes and crimes against humanity carried out by Russia since its invasion of Ukraine.

Rules governing war crimes trials are set out in the Geneva Conventions – a set of treaties and additional protocols that establish accepted conduct in wars and the duties to protect civilians. Both Russia and Ukraine are signatories to the convention, and Ukraine is also bound to its commitments to the European Convention on Human Rights.

There is nothing in international law prohibiting war crimes trials taking place during hostilities. Nonetheless, some commentators have expressed concerns about the practice. In one of its commentaries on the Geneva Conventions, the International Committee of the Red Cross expressly warned against war crimes trials proceeding during wartime. The commentaries, which collectively are seen as the authorities on interpreting the conventions, note that it is difficult for an accused person “to prepare his defense during hostilities,” adding:

“It seems to be a good rule, therefore, that the trial of a person accused of war crimes should not take place at a time when it is impossible for him to adduce proofs which could lessen his responsibility or disprove it.”

In fact, it is very hard to think of an example in which a war crimes trial has been conducted during hostilities other than one case involving a soldier during the Bosnian war in the early 1990s.

‘Direct part of hostilities’

The trial in Ukraine is unusual for another reason that I find concerning: It is taking place in a civilian court, not a military one.

The Third Geneva Convention is pretty clear on this point:

“A prisoner of war shall be tried only by 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 offense alleged to have been committed by the prisoner of war.”

The Russian soldier was prosecuted under a part of the Ukrainian criminal code that addresses conduct during war. And the issue is muddied by the detaining power, Ukraine, having abolished military courts in 2010.

But the problem hinted at in the Geneva Conventions’ strong desire to have war crimes trial only in military courts is that international humanitarian law is a highly specialized area. Military court officials will have the training required to understand the nuances in a way that civilian courts will, by and large, not.

And an issue central to the Russian soldier’s case – whether the civilian killed could be seen as a legitimate target – is a highly technical area that only an expert of the law of war will understand.

Under protocol I of the Geneva Conventions, a treaty added in 1977, a civilian loses immunity when he or she directly participate in hostilities.

And this is where it gets tricky. If the Russian soldier believed that the civilian he shot posed an immediate threat, say by reporting his position to Ukrainian military, then it would not be unreasonable for the defense to argue that the civilian was a legitimate target. Indeed, in the current trial, the court heard that the Russian soldier was ordered to shoot the man for that very reason – his superior believed the civilian may have been using a cellphone to give away their location.

Discerning when a civilian takes a “direct part in hostilities” is highly situational; that is, it depends on the circumstances of the case. The conventions state that civilians lose immunity when they are preparing for, in the act of or returning from participation in hostilities. For example, if a civilian picks up a gun or a Molotov cocktail – and as such show intent to participate in hostilities – they lose immunity.

But other examples may appear less clear cut. For example, a munitions worker manufacturing weapons in Detroit for use in conflict overseas would not be seen as taking a “direct part” in hostilities. But someone in Iraq making improvised explosive devices, or IEDs, to be used by others would be.

It may well be the case that the court would not have accepted the argument that by simply being on a cellphone, the Ukrainian civilian was taking a “direct part” in the war. But the fact that the Ukrainian man was apparently using a cellphone opens up a line of defense that doesn’t appear to have been argued in court.

Bolstering the view that it should have at least been entertained as a defense is 2009 guidance on the issue of when a civilian becomes a “direct part of hostilities” under humanitarian law issued by the International Committee of the Red Cross. It notes that “an unarmed civilian sitting in a restaurant using a radio or mobile phone to transmit tactical targeting intelligence to an attacking air force would probably have to be regarded as directly participating in hostilities.”

Vadim Shishimarin, the 21-year-old Russian soldier accused in the case, has pleaded guilty. But the optics of him being tried during wartime by a detaining authority engaged in conflict raises questions over the confession.

The Geneva Conventions are explicit in that no form of coercion can be used to extract a confession of guilt – and there is no evidence to suggest that Shishimarin was forced into confessing.

Show trials and Russian justice

But there is a broader concern with how this case is being presented. Even if observers accept that the soldier was given adequate counsel and the trial was conducted entirely by the book, that isn’t how it is likely to be presented to the Russian people.

And Russia is reportedly preparing war crime trials of its own for Ukrainian soldiers captured in the conflict.

The treatment of dissidents and opponents of President Vladimir Putin suggests that the concept of rule of law has been eroded. And with around 2,000 Ukrainian soldiers from Mariupol currently in Russian custody, there are concerns that show trials could be on the way.

Of course, there is a propaganda aspect to Ukraine’s prosecution too. Anything that underscores the view that Russian forces are engaged in war crimes will serve Ukrainian interests.

But there is nothing in the propaganda of the trial in itself that is unlawful. Under international law, a line is only crossed when the the detaining authority fails to meet the minimum standards of due process – say, by coercing confession, refusing the right to appeal or not providing counsel for the accused.

No one is suggesting that has been the case in Ukraine’s war crimes trial. But in holding the trial during hostilities, Ukraine runs the risk of Russia doing likewise – and subjecting its prisoners of war to Russian justice.

This article is republished from The Conversation under a Creative Commons license.

Robert Goldman is a Professor of Law at Harvard’s Kennedy School.