International Criminal Court arrest warrants needed over Russia's mass killing, torture and ‘trials’ of Ukrainian POWs

Russia has used fake ‘courts’ on occupied Ukrainian territory to ‘sentence’ at least 163 Ukrainian prisoners of war [POW] to huge terms of imprisonment, with such ‘sentences’ now appearing on an almost daily basis.  There are compelling reasons to believe that the POWs in virtually all such cases have been ‘tortured’ into providing the videoed ‘confessions’ which get shown on Russian state television.  These are only some of the crimes that Russia is committing against Ukrainian POWS, with UN investigators having long established that Ukrainian POWs, as well as civilian hostages, are regularly tortured and ill-treated in Russian captivity.  In September this year, Dr Alice Edwards, the UN Special Rapporteur on Torture, stated that all evidence suggests that such treatment by the Russians is of a systematic nature and is part of Russian state-endorsed policy.

Prisoners of war have protected status under international law, with their treatment particularly regulated by the Third Geneva Convention and the Additional Protocol to it.  In fact, however, Russia is responsible for the lives of any Ukrainians it holds prisoner and is also prohibited, under any circumstances, from using torture. 

Over 50 Ukrainian prisoners of war killed

There has been no comprehensible investigation into the deaths of around 53 Ukrainian POWs at Olenivka in Russian-occupied Donetsk oblast, but that is because Russia has blocked attempts by the UN and International Red Cross to even visit the site of the explosion on 29 July 2022.  Had Moscow really believed its claim that the explosion had been caused by a HIMARS rocket, fired by the Ukrainian Armed Forces, it would have welcomed investigators.  Instead, it prevented any independent probe, as was noted on the eve of the first anniversary by the United Nations High Commissioner for Human Rights Volker Türk.  The latter, however, also publicly dismissed Russia’s claim about the HIMARS missile. 

The Russian tactics were certainly deliberate, with its claims on 30 July 2022 making the headlines, together with its assertion that it would invite international investigators. It became clear almost immediately that no such investigation would be allowed, but by then the international media had found new headlines.  Although there is considerable evidence to back the suspicion that the explosion was planned, and that prisoners from the Azov Regiment were targeted, the lack of proper forensic investigation, etc. preclude any definitive conclusions.

Widespread and systematic use of torture

In October 2023, the Independent International Commission of Inquiry on Ukraine (created by the UN Human Rights Council) published a report detailing “further evidence” of Russian war crimes in Ukraine.  These included horrific sexual crimes, incriminate attacks on civilian targets and the widespread use of torture, with the latter used against both prisoners of war and civilian hostages.

In interviews since his release as part of an exchange of prisoners, Ukrainian military medic Yuriy Armash has provided harrowing details about the torture methods that the Russians used against all prisoners and the sexual crimes against even a 14-year-old.  Armash has every reason to know as the Russians would call on him night and day in their ‘prison’ in occupied Nova Kakhovka after their torture or rape left their victims in a critical state.

Illegal ‘trials’ and massive sentences

Verstka Media have analysed ‘sentences’ against Ukrainian prisoners of war, handed down by Russian occupation ‘courts’ since the beginning of Russia’s full-scale invasion of Ukraine.  They found at least 163 such ‘sentences’ with the average term of imprisonment – 21 years. 

The investigation covers only occupied Ukrainian territory, and was published on 5 November, just before the first sentence on equally flawed charges against Anton Cherednyk, by the notorious Southern District Military Court in Rostov (Russia).

The ‘trials’ investigated were in the Russian proxy ‘Donetsk and Luhansk people’s republics ‘ [‘D/LPR’], with 126 in ‘DPR’  and only 37 in ‘LPR’.  There were also three ‘trials’ where the two fake ‘republics’ worked together.  All such ‘sentences’ were handed down by the so-called ‘supreme courts’ of illegitimate entities which were only officially ‘recognized’ by Russia on the eve of its full-scale invasion of Ukraine, and which are not considered to be independent structures by any democratic state. 

Current Time spoke with Sergey Golubov, a Russian international lawyer (speaking from Lithuania).  He is clear that Russia’s ‘trials’ of Ukrainian POWs are in violation of international law.  The latter stipulates that POWs can only be put on trial for war crimes, whereas Russia is adding insane charges of involvement in illegal armed formations, or similar, basing this on its attempts to present the Azov Regiment and other regiments or battalions within Ukraine’s Armed Forces as ‘illegal armed formations’.  This attempt to criminalize legitimate participation in an armed conflict is itself a war crime, he says.  Golubok agrees with the interviewer’s suggestion that Russia’s attempt to hide behind the euphemism ‘special military operation’ is supposed to abnegate the need to comply with the Third Geneva Convention, but notes that there is a second point. Russia is claiming that the territory it seized is not occupied, but ‘Russian’.  This has, in fact, been the case since 2014, with Russia now extending its illegal use of Russian legislation in occupied Crimea to cover all areas temporarily under Russian occupation.  

Such assertions change nothing since international law is quite clear that occupied Ukrainian territory remains part of Ukraine and is governed by Ukrainian law.  Although Golubok suggests a clash of “two realities”, it is clear from Russia’s behaviour that it is imitating compliance with international law regarding prosecution of prisoners of war.  Prisoner of war status does not protect any individual from liability for war crimes, with the latter including the deliberate targeting of civilians.  Verstka’s study of the 163 ‘trials’ and ‘sentences’ found that in the vast majority of cases (155), the person was charged with ‘ill-treatment of the civilian population with the use in armed conflict of prohibited methods’ (Article 356 § 1 of Russia’s criminal code).  Article 105 (murder) was seen in 139 cases, although in 71 cases, this was combined with Article 30 – attempted crime, and the indictment was over alleged attempted murder.

There are also entirely surreal and very cynical charges, for example, claiming that Ukrainian marine Anton Cherednyk was “planning to violently seize power” with Mariupol asserted to have been “temporarily occupied by Ukraine”.   In another ‘trial’, three Ukrainian POWs - Oleh Kolmychevsky; Dmytro Dobrovolsky and Oleksandr Romashin - were sentenced either to life, or to 30 years, with one of the claims being that the three Ukrainian defenders from Ukraine’s Armed Forces had acted “as an organized group out of motives of political and ideological hatred”. 

The fact that a POW can he held to account for the killing or attempted killing of civilians does not, however, bring Russia’s treatment of Ukrainian POWs into line with international.  As Golubok notes, the point is not only the charge, but how the POW is tried, whether their right to defence and to a fair trial are observed, as well as the prohibition of torture. 

The so-called ‘courts’ in the Russian proxy ‘Donetsk and Luhansk people’s republics’ can in no way guarantee a fair trial.  As reported here on several occasions, it seems clear that Russia is using these fake ‘republics’ to conceal the kangaroo court nature of these ‘trials’.  In most cases, we only learn of them through the reports of sentences already passed, with the only ‘evidence’ being videoed ‘confessions’ given by prisoners of war.  In all such cases, the men have almost certainly been subjected to torture, and there is nothing to suggest that they had access to independent lawyers.  A further advantage for Russia is, yet again, that it can avoid international scrutiny since even the International Committee of the Red Cross is being illegally prevented from seeing the POWs and no independent media are able to be present and freely report on any such ‘trials’ in occupied territory.

While Golubok was asked only about those institutions in Russia’s proxy ‘republics’, there are no grounds for expecting a fair trial from the Southern District Military Court in Rostov (Russia) where some of the ‘trials’ of Ukrainian POWs are taking place. 

Whether the ‘judges’ in such cases can be held to answer depends, Golubok says, on the actions of the Prosecutor of the International Criminal Court   The latter certainly has the jurisdiction and, surely, prima facie evidence that crimes are being committed.  Unfortunately, at present the only arrest warrants issued by the ICC since the beginning of Russia’s full-scale invasion, have been those against Russian president Vladimir Putin and his so-called ‘children’s commissioner’ Maria Lvova-Belova over their role in the deportation to Russia and, often, illegal ‘adoption’ of Ukrainian children.

The ICC can only bring criminal charges against individuals believed directly complicit in a crime.  That probably makes it unlikely, without a full investigation, that it would be able to identify specific individuals responsible for the explosion and deaths of 53 Ukrainian POWs.  Ukraine’s Prosecutor General is, where there is sufficient evidence against identified individuals, bringing criminal charges, often in absentia, against those suspected of direct involvement in the torture of Ukrainian POWs and civilian hostages.  While those who hand down monstrous ‘sentences’ on occupied Ukrainian territory may be harder to identify, those prosecutors and judges from the Southern District Military Court in Rostov are easily identifiable. Most are also implicated in the flawed ‘trials’ of many Crimean Tatar and other Ukrainian political prisoners, and ICC arrest warrants would send a vital message to both perpetrators and to their victims that such violations carry real consequences.