How will captured Ukrainian and Russian soldiers be tried
At the end of May, several sentences were delivered in Ukraine to Russian soldiers for war crimes committed on Ukrainian territory. It is important to note that keeping prisoners of war in the territories of places of deprivation of liberty is contrary to the provisions of the Geneva Conventions. “The status of prisoners of war is determined by the Geneva Convention on the Treatment of Prisoners of War,” lawyer and writer Alexei Fedyarov told Spectra. Also, as Aleksey Fedyarov notes, it is forbidden to apply punishment to prisoners of war that is not provided for the military personnel of the country that holds them captive. That is, the worst thing that can threaten Ukrainian prisoners of war if they are tried on the territory of Russia is life imprisonment. Not only has the “DPR” not ratified any of the Geneva Conventions, but, unlike Russia, a moratorium on the death penalty has not been introduced on its territory. Being unrecognized (or after recognition by Russia on February 21, 2022, partially recognized), the “DPR” and “LPR” remain a “grey zone” for international law.
Despite this, the deputy of the “DPR” Elena Shishkina said that the authorities of the republic are waiting for representatives of other countries to attend the “tribunal”. The courts on the territory of Ukraine, in accordance with the norms of the Geneva Conventions, are absolutely legal. As mentioned above, according to the laws of the unrecognized republics of the “DPR” and “LPR”, the military of the Azov regiment may face the death penalty. If Russia takes part in the tribunal, then all responsibility for its results will fall on it as the only participant in the Geneva Conventions from the Russia-“DPR”-“LPR” trio. These people [Ukrainian military] are held captive by Russia from the point of view of international law… Russia is responsible for these people. It is also worth noting that the Azov fighters, as well as the rest of the soldiers of the armed forces of Ukraine, are subject to all conventions. Prisoners of war can include, among others, “personnel of the armed forces of a party to the conflict, as well as personnel of the militias and volunteer detachments that are part of these armed forces”, as well as “personnel of the regular armed forces who consider themselves subordinate to governments or authorities not recognized by the Detaining Power”, Article 4 of the Third Geneva Convention says.
In other words, even if Russia refuses to officially recognize the soldiers of “Azov” or, say, the territorial defense, as part of the Armed Forces of Ukraine, this will not relieve it of the obligation to properly treat them when taken prisoner. Before the exchange, a convicted prisoner of war must be pardoned by the leadership of the country that condemned him, notes Aleksey Fedyarov. According to him, the possible exchange of the captive Vadim Shishimarin is complicated by the fact that, in accordance with Ukrainian laws, a person sentenced to life imprisonment can be fully amnestied only after 20 years spent behind bars. At the same time, the exchange of Shishimarin is possible, said Prosecutor General of Ukraine Irina Venediktova. “I think it is most wrong to pretend that this story has a legal dimension. On June 6, a draft law was submitted to the Verkhovna Rada of Ukraine, proposing to release from punishment persons included in the lists of the exchange of prisoners.
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