Standing in a glass cage in a Kyiv courtroom, the captured Russian soldier Vadim Shishimarin showed no emotion as a judge sentenced him to life in prison for a “crime against peace, security, humanity and the international legal order”.
The conviction last week is the first settled case in Ukraine’s rapid effort to hold Russia’s forces accountable for war crimes – even as fighting still rages more than three months into president Vladimir Putin’s invasion.
Whereas most war crimes investigations can go on for decades before they even come to trial, Ukraine is moving to prosecute them as quickly as possible. It is conducting more than 13,000 investigations, will try a further 48 captured Russian soldiers, and has a list of 600 more suspects for alleged war crimes including the torture, rape and murder of civilians, according to prosecutor-general Iryna Venedyktova.
Those numbers are likely to rise: Venedyktova’s office released an app that Ukrainians can use to report alleged atrocities from their phones.
“So many people suffered from these atrocities, so there’s a huge demand for it to be punished. And they want results,” said Tetiana Pechonchyk, head of the Kyiv-based Zmina human rights association.
The trials are only a small part of Ukraine’s broader efforts to hold Russia accountable. Kyiv is pushing to hold an international tribunal against Russia for the crime of aggression, which was used to prosecute Nazi German and Japanese leaders after second World War but has not been used since.
The International Criminal Court has also sent a 42-member team to Ukraine as part of what it claims is its largest ever effort to investigate war crimes – even though its capacity to bring the perpetrators to justice is limited, since Russia does not recognise the court. (Ukraine has not ratified the ICC’s founding statute but accepted its jurisdiction).
But the rush to prosecute the captives could complicate Ukraine’s efforts to hold Russia to justice in the longer term if convictions are being overturned on appeal or if they prejudice future proceedings, said Gyunduz Mamedov, a former deputy prosecutor-general of Ukraine. “All this might raise questions about how thorough the investigation was and whether the court considered every aspect of the case,” Mamedov said.
Another difficulty is that the fighting in the Donbas, where Ukraine fought a low-intensity war against two Moscow-backed separatist groups after Russia annexed Crimea in 2014, is leading Ukraine to prosecute its own citizens.
“These are our citizens from the occupied territories who were forced into the occupying army. That’s a war crime in itself [...] They might be perpetrators and victims at the same time,” Pechonchyk said.
During his 10-day trial, Shishimarin (21) admitted his guilt, said he would accept any punishment given him by the court, begged his victim’s wife for forgiveness and said he had acted under orders from his superiors.
“I wasn’t trying to kill him. I just wanted everyone to get off my back,” Shishimarin said.
Ukraine’s swift and publicised prosecutions may be a way to add pressure on Russia to negotiate prisoner exchanges. Moscow says it has taken 2,439 Ukrainian servicemen who defended the Azovstal steel plant in Mariupol for three months before agreeing to surrender.
Moscow’s defence has been to accuse Ukrainian forces of committing the war crimes Kyiv is prosecuting and Russia appears to be preparing its own legal action for propaganda purposes. Separatist leaders in the Donbas, the eastern border region mostly controlled by Russian forces, have said they were preparing a “war tribunal” for the Azovstal plant defenders.
The desperate situation at Azovstal forced Kyiv “to just take the Russians at their word”, according to a western diplomat briefed on the talks. “Now they have to wait and hope. The troops are in prison and the Red Cross has no access to them.”
Such proceedings against Ukrainian captives would have no basis in international law, since no countries other than Russia recognise the separatists in the Donbas, but could represent a propaganda coup.
Many of the servicemen from Azovstal serve in the Azov regiment, founded as a volunteer legion by far-right nationalists in 2014 before Ukraine incorporated it into its national guard.
Russian state media has repeatedly reminded viewers that the separatist territories have the death penalty and used the Azov regiment’s neo-Nazi roots to justify the invasion.
Andrei Rudenko, a deputy Russian foreign minister, said this week that talk of a prisoner exchange was “premature” until “the captives are justifiably condemned and sentenced.”
Mamedov, the former prosecutor, said Ukraine needed to work out “a specific state-level strategy” for the war crimes investigations.
“What do we want? If we want justice, we need to stick to it and tell society we won’t exchange a single person until we have established their role in any crimes, wherever they are,” he said. – Copyright The Financial Times Limited 2022
