On May 25, Ukrainian pilot Nadia Savchenko returned to her country after nearly two years in Russian detention. Sentenced to 22 years in prison by a court in the Russian border town of Donetsk for her purported role in the deaths of two Russian journalists in 2014, Savchenko was released in exchange for two alleged Russia military intelligence officers who had been held in Ukrainian custody.
The charges against Savchenko were contested, but her identity was not. The same could not be said about the two Russians, Alexander Alexandrov and Yevgeny Yerofeyev, who were captured in Ukraine’s eastern Luhansk region in May 2015. They initially admitted to serving in the Russian military, but later recanted their confessions, saying that they had been extracted under duress. (Alexandrov and Yerofeyev, along with the Russian government, insisted that the two men had been volunteering with separatist forces in eastern Ukraine at the time of their arrest.) After a lengthy investigation and trial, in April 2016, a court in Kiev found both men guilty of waging “aggressive war” and of committing a “terrorist act” leading to the death of a Ukrainian serviceman, among other crimes. By serving as soldiers in the Russian military alongside separatist forces, the court found, the two men had committed an act of aggression against Ukraine’s sovereignty.
Alexandrov and Yerofeyev are among a small number of Russians who have been convicted of crimes of aggression since the conflict in eastern Ukraine began in the spring of 2014. The trials of these service members hold considerable legal significance, since they appear to mark the first time any court—domestic or international—has convicted a defendant of a crime of aggression since the 1946 International Military Tribunal at Nuremberg. More immediately, their origins and outcome reveal how the Ukrainian government has deftly instrumentalized domestic and international law for political gain.
PICKING AND CHOOSING
The concept of individual criminal responsibility for international military aggression has its origins in the post–World War I peace talks held in Paris. In an attempt to discourage the kind of military action that led to that conflict, the Covenant of the League of Nations, signed in June 1919, sought to prohibit the use of force by states and called for violators to be punished with sanctions. As World War II was drawing to a close, in June 1945, a similar prohibition on the use of force was enshrined in article 2(4) of the Charter of the League’s successor organization, the United Nations. Then, with the signing of the Charter of the International Military Tribunal a few months later, the international community established a legal framework that allowed states to hold individuals responsible for crimes of aggression.
Nearly thirty years later, in 1974, the UN General Assembly passed a resolution that reinforced Article 2(4)’s ban on the use of force against other states. But it did not spell out how individuals could be prosecuted for such crimes. It wasn’t until 2010, eight years after the Rome Statute establishing the International Criminal Court (ICC) entered into force, that representatives at the ICC Review Conference in Kampala, Uganda, agreed to a definition of aggression. Amending the Rome Statute, the representatives at the conference decided that the charge of aggression could only be brought against officials in “position[s] effectively to exercise control over or to direct the political or military action of a State”—in short, against national or military leaders. Until the ICC assumes jurisdiction over crimes of aggression—no earlier than January 2017, according to the terms set down at the Kampala conference—it is up to domestic courts to try such cases. For now, Ukraine has to rely on its domestic penal code, which is one of only a handful in the world to criminalize aggressive military acts.
By fixating on Russia’s transgressions against the Ukrainian state, Kiev has abandoned Ukraine’s real victims.
The definition of a crime of aggression as a so-called leadership crime and Ukraine’s domestic laws explain why Ukrainian officials have discussed prosecuting Valery Gerasimov, the chief of the general staff of the Russian Armed Forces, on charges of aggressive war. It doesn’t explain, however, why the prosecutor’s office chose to try Alexandrov, Yerofeyev, and other relatively low-ranking Russians for the same crime. The extent to which an individual must control the actions of a state to be found guilty of aggressive war remains a subject of debate among legal scholars. But no serious analysis could conclude that Alexandrov or Yerofeyev met the requirements necessary for a conviction: both men are mid-level officers, tasked with carrying out the state’s directives, not designing them. Nevertheless, in its verdict, the court argued that the section of Ukrainian law that criminalizes aggressive war was based on the 1974 UN resolution—an apparent attempt to ground the trial in international law. Clearly, Ukraine is picking and choosing the portions of international law that suit its domestic purposes.
These and other peculiarities suggest that the trial was politically motivated. Indeed, Ukrainian prosecutors seem to have pressed charges against Alexandrov and Yerofeyev specifically with an eye toward exchanging the Russians for Savchenko: Savchenko’s mother and sister sat in on Alexandrov and Yerofeyev’s trials, and Ukrainian President Petro Poroshenko called Russian President Vladimir Putin shortly after the two men were sentenced, saying later that he and Putin had worked out an “algorithm” for a swap.
The politicization of the trial should come as no surprise: in today’s Ukraine, the executive’s preferences often take precedence over the law. Less than two weeks before the prisoner exchange, for example, the Ukrainian parliament voted to amend a national law in order to allow candidates without legal qualifications to become Ukraine’s prosecutor general so that Poroshenko could appoint an ally to the post.
KIEV'S FINE LINE
Of course, the trial of Alexandrov and Yerofeyev was not the first time Ukrainian leaders have presented their country as a victim of Russian aggression. Such claims have featured prominently in Kiev’s public diplomacy since the war in the country’s east began. In a nation still dealing with the legacy of World War II, charges of international aggression have deep historical resonance and are a clear way for the government to rally domestic support. At the World Economic Forum in Davos in January 2015, Poroshenko went so far as to bring a shard of metal from a bus that had been attacked by pro-Russian separatists in the city of Volnovakha to the podium for a speech. “If this is not aggression, what is?” he asked.
Nevertheless, there are some revealing wrinkles in Ukraine’s assessments of Moscow’s belligerence. Despite their frequent references to Russian aggression, Ukrainian officials—including the judges who presided over the trial of Alexandrov and Yerofeyev—have largely avoided calling the war in the east an armed conflict. As spelled out in the 1949 Geneva Conventions, that designation would trigger the application of international humanitarian law and subject the actions of Ukrainian soldiers and leaders to greater international scrutiny and, perhaps, prosecution. It was likely for this reason that, in May, a Kiev district court, reportedly under pressure from the Poroshenko administration, refused to recognize Russia as an aggressor in eastern Ukraine.
That logic was echoed in February 2015 by Irina Lutsenko, a deputy in Poroshenko’s parliamentary faction, who offered a revealing explanation of Kiev's decision not to ratify the Rome Statute, which would have brought Ukraine under the jurisdiction of the International Criminal Court in The Hague. Asked why Ukraine had not ratified the statute, Lutsenko responded, “for one, simple reason. Because Russia has the so-called ‘white book,’ [a widely disputed record of Ukrainian activity in the Donbas in which the Russian Ministry of Foreign Affairs] has fixated on the alleged crimes of Ukrainian soldiers, generals, and leaders… our soldiers will be called to The Hague to offer evidence, so that their morale will be somehow depressed.” (Although Ukraine still has not ratified the Rome Statute, in September 2015, the country accepted the ICC's indefinite jurisdiction over the conflict in the Donbas, exposing itself to potential prosecution at the court.)
Even as it maintains that Russia is waging an aggressive war in eastern Ukraine, then, Kiev has continued to refer to its military campaign as an “anti-terrorist operation,” a term that distinguishes the conflict from a proper armed conflict and attempts to situate Ukraine’s actions within the global war on terror. Of course, the separatist forces in the Donbas are not terrorist organizations: they are conventional militias backed by what resemble quasi-independent states.
Kiev has walked this fine line with remarkable success. According to a February 2016 poll conducted by the Razumkov Centre, a Ukrainian nongovernmental organization, 62 percent of Ukrainians consider the self-proclaimed Donetsk People’s Republic and the Luhansk People’s Republic terrorist organizations, and 72 percent of Ukrainians see Russia as an aggressor country.
There is an obvious truth to the government’s rhetoric about Ukraine’s victimization and Russia’s aggression. As it focuses on crimes of aggression and the violation of Ukraine’s sovereignty, however, Ukraine has largely ignored international humanitarian law, neglecting to prosecute the war crimes that have been committed by pro-Ukrainian and separatist forces alike. By fixating on Russia’s transgressions against the Ukrainian state, Kiev has abandoned Ukraine’s real victims.