THE death sentences on three Ukrainian Army soldiers – two of them Britons – have thrown into fresh focus the question of war crimes trials.
Shaun Pinner, 48, Aiden Aslin, 28, and Moroccan national Saaudun Brahim were accused of being mercenaries and condemned by a court in the self-proclaimed Donetsk People’s Republic, which is held by pro-Russian rebels and not internationally recognised.
The hearing has been branded a ‘show trial’ and the British government says the sentences are in breach of the Geneva Conventions, which protect prisoners of war who are legitimate fighters. Foreign Secretary Liz Truss called it a ‘sham judgment with absolutely no legitimacy’.
On Mark Steyn’s GB News show, Lieutenant-General Jonathon Riley called the Donetsk People’s Republic ‘not a country, just a lynch mob’. He added: ‘If these men are executed, that is a war crime.’
Britain is working with the Ukraine authorities to try to secure the men’s release. However, it is thought the Donetsk regime will make no further move without the approval of Vladimir Putin. The hope is that the condemned men will be used as political pawns and freed in a prisoner exchange.
The sentences could be seen as a tit-for-tat response to the trial in Ukraine of a Russian soldier who was given life imprisonment on May 23 after pleading guilty to shooting dead an unarmed civilian.
The case of 21-year-old tank commander Sergeant Vadim Shishimarin is likely to set a precedent, with Ukrainian authorities saying more than 11,000 war crimes may have been committed by Russian forces, mainly targeting non-combatants.
Ukraine’s investigation of war crimes has won the backing of Britain’s top law officer, Attorney General Suella Braverman, and Justice Secretary Dominic Raab.
At the same time, the UK, EU and US have launched the Atrocity Crimes Advisory Group to co-ordinate support for judicial proceedings.
But all those involved will be aware that ever since the Nuremberg trials of the Nazi leaders by the victorious Allied powers in 1945-1946, prosecutions for war crimes have been fraught with controversy.
The overriding question is whether a fair hearing can ever be possible when the enemy or – as at Nuremberg – the winner of a war is making the judgment and meting out what has been dubbed ‘victors’ justice’. Similarly, if an accused is tried in his own country, there is bound to be a question over bias.
This was partly the reason for the establishment in 2002 of the International Criminal Court at The Hague in the Netherlands as an independent body to prosecute cases of war crimes, genocide and crimes against humanity where national authorities could not, or would not, do so.
But the ICC basically has jurisdiction only over those 123 states who are members. Ukraine and Russia are not party to the treaty that established the court and so technically neither country can refer cases to it, although Ukraine says it will accept its jurisdiction. So the ICC is opening an investigation into potential war crimes during the current conflict and Britain has given £1million to help fund the effort.
However, over the years the court’s impartiality has come under fire and it has been accused of being inefficient and ineffective, securing few convictions since it was established.
The US is not signed up to the ICC and one vocal critic has been John Bolton, who as National Security Adviser to President Donald Trump in 2018, threatened sanctions against the ‘illegitimate’ court if it tried to prosecute Americans over alleged offences in Afghanistan.
The hawkish Republican said the ICC lacked checks and balances while also claiming jurisdiction over crimes ‘that have disputed and ambiguous definitions’, and it failed to ‘deter and punish atrocity crimes’.
Bolton now says prosecution of war crimes in the current conflict should be left to Ukraine or to Russia if a post-Putin regime can be established there.
Meanwhile, Russian leaders have invoked Nuremberg to justify their invasion of Ukraine, calling for a Nuremberg-style public tribunal to try alleged war crimes by Ukrainian political leaders and soldiers.
Modern war crimes law stems from the proceedings of the International Military Tribunal in Nuremberg, which was specifically established to try the surviving Nazi leaders after the Second World War. A similar tribunal was held in Tokyo, where Japanese military and political leaders were prosecuted.
There was no doubt that the accused in both cases were guilty of some of history’s most heinous acts. Millions of dead and a devastated world were testament to that.
However, with no firm precedent for such tribunals, Allied legal experts had to formulate new charges based on international law and custom, and the generally accepted principles on the conduct of war. So the Nazis were accused of war crimes, crimes against humanity and crimes against peace.
Crimes against peace was seen as the most serious offence – meaning the planning and waging of a war of aggression, embarking on a campaign of conquest and subjugation without just cause. But since Nuremberg, no one has been prosecuted for launching an aggressive war.
Russia is undoubtedly the aggressor in Ukraine, but both sides are pushing their own propaganda on the conduct of the war while trying to discredit the narrative of the enemy.
However, one thing Nuremberg did establish is that a state of war is no excuse for blatantly criminal acts, and few would disagree that perpetrators must be called to account by some sort of legal forum.
It remains to be seen if further war crimes cases brought by Ukraine will progress, and whether Russia or its acolytes might stage more prosecutions. But, with the fighting on the ground now in its fourth month, the war in the courts, whatever its legitimacy, is only just beginning.