It was announced this week that Russia is preparing humiliating trials for captured Ukranian soldiers, prisoners of war. Russia”s intention is to hold an “international tribunal” in Mariopol. The phrase “international tribunal” is not coincidental. It is also very misleading. Russia can’t generate legitimacy out of thin air just by calling a tribunal “international”. There are clear standards as to what constitutes an international tribunal created by the UN Security Council.
International tribunals are set up as a sign of the international community bringing justice in armed conflict or genocide. The first international tribunals were set up in the 1990s to investigate crimes committed by military personnel, politicians and civilians during armed conflict. The list of tribunals includes: the International Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL), the Extraordinary Chambers in the Courts of Cambodia (ECCC). The tribunals report to the United Nations Security Council.
Russia’s show trials are no international tribunal, by any measure. That’s obvious since the get-go. This week the UN High Commissioner for Human Rights also expressed concern that the trials set up by Russia won’t be fair and impartial.
Let’s recall international humanitarian law and the Geneva Conventions. Combatants can’t be tried for killing soldiers on the other side. This is not a war crime. It’s seen as a part of regular hostilities. It’s accepted that soldiers would be killing each other in a war. (Things of course are different if civilians or protected personnel are involved.)
Under international law, individuals entitled to prisoner-of-war status have combatant immunity and cannot be prosecuted for having participated in hostilities, or for lawful acts of war committed in the course of the armed conflict, even if such acts would otherwise constitute an offence under domestic law.
If prisoners of war are charged with crimes, they are entitled to due process and fair trial guarantees. No sentence or punishment may be passed on them unless it is delivered by an impartial and regularly constituted court.
International humanitarian law prohibits the establishment of courts solely to judge prisoners of war.
What’s more, wilfully depriving a prisoner of war of the rights of fair and regular trial amounts to a war crime. Thus, Russia will be committing a war crime if it continues with the show trials plan.
The Russian side is building metal cages where the prisoners of war will be placed during the show trials. The intent is to humiliate the captured Ukrainian soldiers. Prisoners of war have to be treated humanely and with dignity. Cells for animals run contrary that principle.
Amnesty International expressed outrage recalling that under the Third Geneva Convention, prisoners of war are entitled to due process.
The UN High Commissioner expressed concern that Ukrainian prisoners of war have been held without access to independent monitors, “exposing them to the risk of being tortured to extract a confession”. Amnesty called the trials “sham trials”. The US State Department called them a “mockery of justice”.
Since the get-go we already know that the show trials will fall short of a fair and impartial trial. Russia can’t continue with that plan.
On the Ukrainian side, there is the idea to set up an international tribunal to try Russian President Putin for the international crime of “aggression” which does not have a definition. The International Criminal Court is already investigating war crimes and crimes against humanity in Ukraine.
There has to be an alternative solution that covers the conduct of both sides. In the meantime, President Putin will be left pushing his “international” tribunal. In response, the International community’s task now is to go ahead and concieve of a mechanism that covers all the conduct.
The European Parliament called for a special international tribunal for crimes of aggression on 19 May. But it cannot be an international tribunal in the traditional sense as set up by the UN Security Counil because Russia will veto any attempt to create an actual international tribunal. To escape Putin’s veto it’s time to think of a justice mechanism that will fall short of a real international tribunal but one that would work nevertheless.
[Photo by Kremlin.ru/Wikimedia Commons]
*Iveta Cherneva is an Amazon best-selling author and political commentator. The views and opinions expressed in this article are those of the author.
