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Post by Admin on May 21, 2022 17:31:11 GMT
POKROVSK, Ukraine (AP) — Russia’s claimed seizure of a Mariupol steel plant that became a symbol of Ukrainian tenacity gives Russian President Vladimir Putin a sorely needed victory in the war he began, capping a nearly three-month siege that left the city in ruins and more than 20,000 residents feared dead. After the Russian Defense Ministry announced late Friday that its forces had removed the last Ukrainian fighters from the plant’s miles of underground tunnels, concern mounted for the Ukrainian defenders who now are prisoners in Russian hands. Denis Pushilin, the head of an area of eastern Ukraine controlled by Moscow-backed separatists, said Saturday that the Ukrainians considered heroes by their fellow citizens were sure to face a tribunal for their wartime actions. “I believe that a tribunal is inevitable here. I believe that justice must be restored. There is a request for this from ordinary people, society, and, probably, the sane part of the world community,” Russian state news agency Tass quoted Pushilin as saying. Russian officials and state media repeatedly have tried to characterize the fighters who holed up in the Azovstal steel plant as neo-Nazis. Among the plant’s more than 2,400 defenders were members of the Azov Regiment, a national guard unit with roots in the far right. The Ukrainian government has not commented on Russia’s claim of capturing Azovstal, which for weeks remained Mariupol’s last holdout of Ukrainian resistance, and with it completing Moscow’s long-sought goal of controlling the city, home to a strategic seaport. Ukraine’s military this week told the fighters holed up in the plant, hundreds of them wounded, that their mission was complete and they could come out. It described their extraction as an evacuation, not a mass surrender. The impact of Russia’s declared victory on the broader war in Ukraine remained unclear. Many Russian troops already had been redeployed from Mariupol to elsewhere in the conflict, which began with the Russian invasion of its neighbor on Feb. 24. Russian Defense Ministry spokesman Igor Konashenkov reported Saturday that Russia had destroyed a Ukrainian special-operations base in Black Sea region of Odesa as well as significant cache of Western-supplied weapons in northern Ukraine’s Zhytomyr region. There was no confirmation from the Ukrainian side.
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Post by Admin on May 21, 2022 20:48:25 GMT
Zelensky indicated he might be willing to cede some of eastern Ukraine to Russia to spare the population. “I believe that no matter what appetite different sections of our population have, the most valuable thing is to save more people, soldiers,” Zelensky said at a news briefing Saturday. “We have broken the backbone of one of the strongest armies in the world. We’ve already done that. Including psychologically. They won’t get back on their feet for the next few years,” Zelensky said. “But let’s not forget that all our soldiers also want to live.” The fall of Mariupol saw the surrender of more than 2,600 soldiers who were holding out in the massive Azovstal steel plant. They were taken to a POW camp in the eastern part of the country, raising concerns they might be put before tribunals to further Russian propoganda about the unit, which it claims includes neo-Nazis. Russia separately banned 963 more American citizens from entering the country, including former Secretary of State Mike Pompeo and actor Morgan Freeman, who once appeared in a video criticizing Russia, along with Biden and current Secretary of State Anthony Blinken, Tass News Agency said. Also Saturday, Russian Transportation Minister Vitaly Savelyev said Western sanctions against Russia have “practically broken all” logistics corridors used by the country for trade, TASS reported. “We are forced to look for new logistics corridors together,” Savelyev said. Moscow is looking into alternative trade routes such as one linking India with Central Asian countries, Russia and Europe through Iran, he said. While Ukraine could win on the battlefield, the war will only end “at the negotiating table,” Zelensky said, according to The BBC. The conflict “will be bloody, there will be fighting, but it will only definitively end through diplomacy,” Zelensky said. “No one just gives anything away, but there is land that they entered and occupied, and there are some areas where they have advanced very far in,” Zelensky continued. “To reach the line that existed before [February] 24th without unnecessary losses, I think … that would be a victory for our country.” “We have broken the backbone of one of the strongest armies in the world. We’ve already done that. Including psychologically. They won’t get back on their feet for the next few years,” Zelensky said. “But let’s not forget that all our soldiers also want to live.”
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Post by Admin on May 22, 2022 17:22:10 GMT
Why did neo-Nazis from the Azov battalion surrender this week? 7,662 views May 19, 2022 The Ukrainian media are trying to present everything in such a way, as if the surrender of the Azovites to the Russian army was according to the Kiev's plan. But judging by the reaction in the Western community, it is obvious that this is an unpleasant surprise for the overseas curators. But what is the reason for this? Author's comment by Maria Petrashko about the political weight of Azovstal, under which the Ukrainian propaganda of fascism is collapsing.
The General Staff of the Armed Forces of Ukraine has confirmed on its social media networks that its servicemen holed up at the Azovstal steelworks in Mariupol have been ordered to surrender.
“The garrison ‘Mariupol’ has completed the assigned combat mission. The highest military command issued an order to the commanders of the units located at Azovstal to save the lives of the personnel,” the Ukrainian military statement explained. According to Kiev, while holding positions at Azovstal to save the lives of the personnel,” the Ukrainian military statement explained. According to Kiev, while holding positions at Azovstal, its soldiers “prevented” Russian troops from operating in other theatres, reported the Russia Today.
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Post by Admin on Oct 19, 2023 19:31:06 GMT
In mid-June 2023, a trial of 22 Ukrainian citizens affiliated with the “Azov” Regiment of the Ukrainian Armed Forces (UAF) began in Rostov-on-Don, Russia. The accused were captured by the enemy forces in May 2022 during the battle of Mariupol. At the time, some accused were “Azov” members – servicemen who participated in hostilities and auxiliary staff – while the others were seemingly civilians associated with “Azov”, i.e., former members of the regiment. In July, the same court commenced a trial of 18 prisoners of war (POWs) from the UAF’s “Aidar” Battalion. In both cases, the accused were charged with “participation in a terrorist organization” (i.e., “Azov” and “Aidar”, respectively) and “attempts to overthrow the government” of the “Donetsk People’s Republic” (“DPR”), i.e., Russia’s proxies in Ukrainian territory largely occupied by Russia.
These trials raise concerns in many respects, including their fairness, impartiality, and independence, and appear to violate a range of international humanitarian law (IHL) rules, such as the prohibitions on exposing POWs to public curiosity and insults, ill-treatment, and forced confessions. Fundamentally, the accused seem to have been tried for their participation in hostilities against the Russian forces. This analysis explores the extent to which Russian trials of the “Azov” and “Aidar” fighters might be in violation of the combatant privilege rule, which affords combatants immunity from prosecution for acts of war that are consistent with IHL, and the relating interplay between IHL and counterterrorism law (CTL). As such, it focuses on the accused POWs and does not address the civilian accused.
The Shield of the Combatant Immunity and Terrorism Charges
In international armed conflicts (IACs), including the current war Russia is waging against Ukraine, IHL grants POW status to members of the enemy armed forces, including members of army support services (III GC Art. 4A(1) and Cmt §978). Once in the adversary’s hands, POWs are not entirely immune from prosecution – they may be tried for war crimes and breaches of laws of the Detaining Power, including pre-capture acts. Yet, they remain shielded from prosecution for “lawful acts of war committed in the course of an armed conflict,” even if such acts formally qualify as crimes under the laws of the Detaining Power (i.e., combatant’s privilege) (III GC Art. 85 and Cmt §3634).
In other words, combatants have a “license” to commit various warlike acts “materially required” for their participation in the armed conflict, e.g., injuring or killing enemy combatants, destroying military objects, physical presence behind enemy lines, enlistment with enemy forces, use/possession of uniforms and weapons, etc. (Martinez (2019) 84). Absent such a rule, an untenable situation would exist where combatants could all be prosecuted for their participation in the war itself.
Contemporary IHL and practice recognize two main exceptions to combatant’s privilege. First, as noted above, POWs can be prosecuted for international crimes, including grave breaches of IHL (III GC Cmt §3634), commonly referred to as “war crimes.” Second, combatant’s privilege does not preclude prosecution for ordinary crimes unrelated to war, e.g., homicide, drug-trafficking, robberies and “pre-capture terrorist offenses not related to the conflict” (Martinez (2019) 83 referring to U.S. v. Noriega; Jinks (2004), fn. 381).
Hence, prosecution of POW under terrorism charges seems possible in two cases. First, the commission of acts of terror prohibited under Article 51(2) of the Additional Protocol I and recognised as a war crime under customary international law (Galić Appeal Judgment, §98), i.e., conflict-related acts or threats of violence with the primary purpose of spreading terror among civilians. Second, terrorist acts unrelated to the armed conflict, e.g., distinct from it temporally, territorially, and materially.
In all other cases, although CTL and IHL co-application is not automatically mutually exclusive and despite States’ relative discretion to define and interpret provisions of their penal legislation, the existence of an IAC arguably limits or excludes the application of the counterterrorism regime with respect to conduct related to that IAC, which is substituted or supplemented by relevant IHL rules (Trapp (2014) 170-175, 180; Saul (2022); Saul (2020) 411-413). Specifically, criminal law instruments on terrorism cannot serve to criminalize mere participation in hostilities (Van Poecke et al. (2021) 297).
To this end, many contemporary counterterrorism treaties contain specific clauses stating either that IHL substitutes their application in armed conflicts, or that “the activities of armed forces during an armed conflict” regulated by IHL are not governed by CTL conventions (Trapp (2014) 170; Saul (2020) 411-413; CODEXTER (2017) 12; 2005 Nuclear Terrorism Convention, Article 4(2); 1997 Terrorist Bombings Convention, Article 19(2); 1999 Terrorist Financing Convention, Articles 2(1)(b) and 21; Hague Convention 1970, Article 3bis). The underlying logic is that full-scale CTL application may otherwise be used to prosecute conflict-related conduct covered by the combatant’s immunity, thus creating normative conflicts (Trapp (2014) 170).
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Post by Admin on Oct 19, 2023 19:33:04 GMT
In sum, to determine whether particular charges against POWs fall under the combatant’s immunity during an IAC, the conduct’s nature (in particular its relationship to the IAC) and not its formal qualification as a terrorism offense outside of the IAC context, is decisive. While POWs can be prosecuted for the war crime of terror and terrorist acts unrelated to the armed conflict, much violent conduct formally qualifying as terrorism and/or other crimes against national security (e.g., attempts to overthrow the government) in peacetime, will most often be shielded by the combatant’s privilege when committed by combatants in the course of hostilities.
Implications for the POW Trials
Ukrainian POWs who are members of the “Azov” and “Aidar” units of the UAF are commonly charged by Russia with two offenses, namely “participation in a terrorist organization” and “attempts to overthrow the [‘DPR’] government,” while some were additionally charged with “training for terrorist activities.” Particularly, according to Russian propaganda, POWs were accused of “collecting information about the whereabouts of the [Russian forces] and firing at [their] positions,” “preparing for the violent seizure of new territories of the DPR, controlling checkpoints, guarding and defending the military positions, as well as the occupied territories of the DPR.”
“Aidar” was previously declared an extremist organization in Russia, and in 2016, both “Azov” and “Aidar” were declared terrorist organizations by the so-called “DPR.” The Russian Supreme Court declared “Azov” a terrorist organization only in August 2022, i.e., three months after the POWs’ capture when they were fighting as UAF units. The National Anti-Terrorism Committee of Russia listed several reasons for the decision, namely threatening Russian security by participating in hostilities in the east of Ukraine and sabotage operations in Crimea; supporting neo-Nazi and radical ideology; and the commission of war crimes.
Thus, charges against POWs largely focus on their fight against Russian forces, i.e., “lawful acts of war committed in the course of an armed conflict,” which are clearly within the combatant’s immunity. Even where they might technically qualify as terrorism in peacetime (e.g., hostile acts against Russian servicemen, so-called “DPR” members, or military units), during the armed conflict, combatant’s immunity precludes full-scale CTL application to conflict-related conduct, preventing collision with the combatant’s immunity.
This means that the only grounds upon which Azov members might potentially be prosecuted are either the participation in “terrorist” activities unrelated to the armed conflict (e.g., committed in other contexts outside the fighting) or the commission of the war crime of terror. None of these grounds appear to be manifestly invoked by the Russian prosecution.
Likewise, declaring “Azov” and “Aidar” units, which are constituents of the Ukrainian army, as terrorist organizations and prosecuting POWs for the sole fact of membership therein, equally undermine the combatant’s privilege. POWs’ enlistment in their respective units is inevitably “materially required” for the participation in fighting the war and thus cannot be subjected to prosecution. Even where, as Russia contends, individual “Azov” or “Aidar” members might have been involved in the commission of war crimes, criminal responsibility must be individual and target actual authors of the offense and not their comrades.
If an author cannot be determined, “it must be accepted that the violation will remain unpunished” (III GC Cmt, §3689). Prosecuting combatants for war crimes committed by their comrades might constitute a form of collective punishment prohibited under IHL, i.e., a “penalty inflicted on a group of persons without regard to individual responsibility for the conduct giving rise to the penalty” (ibid). Otherwise, Russian authorities would be free to declare any Ukrainian unit a “terrorist organization” and prosecute every Ukrainian POW for their membership therein, which would render combatant immunity entirely futile.
Conclusions
While Russian-held trials of the Ukrainian defenders raise serious allegations of due process violations, most fundamentally, they seem to be based on bogus pretexts from the outset. As captured members of UAF units, the accused qualify as POWs and thus are protected from prosecution for lawful acts of war by the combatant’s privilege.
Where POWs’ conduct might bear signs of terrorism-related offenses, charges can only concern international crimes (e.g., the war crime of terror) or terrorism offenses distanced from the armed conflict. In an IAC, broader CTL application is arguably only possible where it does not conflict with IHL and combatant’s privilege. Recognizing POWs’ units as terrorist organizations and trying POWs for the mere fact of enlistment undermines their immunity and might constitute collective punishment prohibited under IHL.
Russian sham trials thus appear to entirely negate these core IHL principles, and appear aimed at de facto legitimizing revenge against the POWs for fighting in defense of their country. The allegations above, in addition to broader concerns about impartiality and respect for the rights of the accused, may point to the commission of a grave breach of IHL under Article 130 of the Third Geneva Convention and the war crime of denying a fair trial under Article 8(2)(a)(vi) of the Rome Statute.
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