In mid-June 2023, a trial of 22 Ukrainian citizens affiliated with the “Azov” Regiment of the Ukrainian Armed Forces (UAF) began in Rostov-on-Don, Russia. The accused were captured by the enemy forces in May 2022 during the battle of Mariupol. At the time, some accused were “Azov” members – servicemen who participated in hostilities and auxiliary staff – while the others were seemingly civilians associated with “Azov”, i.e., former members of the regiment. In July, the same court commenced a trial of 18 prisoners of war (POWs) from the UAF’s “Aidar” Battalion. In both cases, the accused were charged with “participation in a terrorist organization” (i.e., “Azov” and “Aidar”, respectively) and “attempts to overthrow the government” of the “Donetsk People’s Republic” (“DPR”), i.e., Russia’s proxies in Ukrainian territory largely occupied by Russia.
These trials raise concerns in many respects, including their fairness, impartiality, and independence, and appear to violate a range of international humanitarian law (IHL) rules, such as the prohibitions on exposing POWs to public curiosity and insults, ill-treatment, and forced confessions. Fundamentally, the accused seem to have been tried for their participation in hostilities against the Russian forces. This analysis explores the extent to which Russian trials of the “Azov” and “Aidar” fighters might be in violation of the combatant privilege rule, which affords combatants immunity from prosecution for acts of war that are consistent with IHL, and the relating interplay between IHL and counterterrorism law (CTL). As such, it focuses on the accused POWs and does not address the civilian accused.
The Shield of the Combatant Immunity and Terrorism Charges
In international armed conflicts (IACs), including the current war Russia is waging against Ukraine, IHL grants POW status to members of the enemy armed forces, including members of army support services (III GC Art. 4A(1) and Cmt §978). Once in the adversary’s hands, POWs are not entirely immune from prosecution – they may be tried for war crimes and breaches of laws of the Detaining Power, including pre-capture acts. Yet, they remain shielded from prosecution for “lawful acts of war committed in the course of an armed conflict,” even if such acts formally qualify as crimes under the laws of the Detaining Power (i.e., combatant’s privilege) (III GC Art. 85 and Cmt §3634).
In other words, combatants have a “license” to commit various warlike acts “materially required” for their participation in the armed conflict, e.g., injuring or killing enemy combatants, destroying military objects, physical presence behind enemy lines, enlistment with enemy forces, use/possession of uniforms and weapons, etc. (Martinez (2019) 84). Absent such a rule, an untenable situation would exist where combatants could all be prosecuted for their participation in the war itself.
Contemporary IHL and practice recognize two main exceptions to combatant’s privilege. First, as noted above, POWs can be prosecuted for international crimes, including grave breaches of IHL (III GC Cmt §3634), commonly referred to as “war crimes.” Second, combatant’s privilege does not preclude prosecution for ordinary crimes unrelated to war, e.g., homicide, drug-trafficking, robberies and “pre-capture terrorist offenses not related to the conflict” (Martinez (2019) 83 referring to U.S. v. Noriega; Jinks (2004), fn. 381).
Hence, prosecution of POW under terrorism charges seems possible in two cases. First, the commission of acts of terror prohibited under Article 51(2) of the Additional Protocol I and recognised as a war crime under customary international law (Galić Appeal Judgment, §98), i.e., conflict-related acts or threats of violence with the primary purpose of spreading terror among civilians. Second, terrorist acts unrelated to the armed conflict, e.g., distinct from it temporally, territorially, and materially.
In all other cases, although CTL and IHL co-application is not automatically mutually exclusive and despite States’ relative discretion to define and interpret provisions of their penal legislation, the existence of an IAC arguably limits or excludes the application of the counterterrorism regime with respect to conduct related to that IAC, which is substituted or supplemented by relevant IHL rules (Trapp (2014) 170-175, 180; Saul (2022); Saul (2020) 411-413). Specifically, criminal law instruments on terrorism cannot serve to criminalize mere participation in hostilities (Van Poecke et al. (2021) 297).
To this end, many contemporary counterterrorism treaties contain specific clauses stating either that IHL substitutes their application in armed conflicts, or that “the activities of armed forces during an armed conflict” regulated by IHL are not governed by CTL conventions (Trapp (2014) 170; Saul (2020) 411-413; CODEXTER (2017) 12; 2005 Nuclear Terrorism Convention, Article 4(2); 1997 Terrorist Bombings Convention, Article 19(2); 1999 Terrorist Financing Convention, Articles 2(1)(b) and 21; Hague Convention 1970, Article 3bis). The underlying logic is that full-scale CTL application may otherwise be used to prosecute conflict-related conduct covered by the combatant’s immunity, thus creating normative conflicts (Trapp (2014) 170).
So, although CTL can more harmoniously co-apply with IHL in non-international armed conflicts (NIACs), in international ones combatant immunity will often bar prosecutions (Saul (2022); Bruges Colloquium (2016) 42; ICRC (2019), fn. 84). Domestic practice (e.g., of the UK, the Netherlands, and the Court of Justice of the European Union in relation to Al Qaeda and the Tamil Tigers) exposes the same approach: even where CTL and IHL interrelation is not expressly reconciled, CTL was seemingly only invoked for prosecutions in NIACs given the irrelevance of the combatant’s immunity issues (Saul (2020) 417-419).
In sum, to determine whether particular charges against POWs fall under the combatant’s immunity during an IAC, the conduct’s nature (in particular its relationship to the IAC) and not its formal qualification as a terrorism offense outside of the IAC context, is decisive. While POWs can be prosecuted for the war crime of terror and terrorist acts unrelated to the armed conflict, much violent conduct formally qualifying as terrorism and/or other crimes against national security (e.g., attempts to overthrow the government) in peacetime, will most often be shielded by the combatant’s privilege when committed by combatants in the course of hostilities.
Implications for the POW Trials
Ukrainian POWs who are members of the “Azov” and “Aidar” units of the UAF are commonly charged by Russia with two offenses, namely “participation in a terrorist organization” and “attempts to overthrow the [‘DPR’] government,” while some were additionally charged with “training for terrorist activities.” Particularly, according to Russian propaganda, POWs were accused of “collecting information about the whereabouts of the [Russian forces] and firing at [their] positions,” “preparing for the violent seizure of new territories of the DPR, controlling checkpoints, guarding and defending the military positions, as well as the occupied territories of the DPR.”
“Aidar” was previously declared an extremist organization in Russia, and in 2016, both “Azov” and “Aidar” were declared terrorist organizations by the so-called “DPR.” The Russian Supreme Court declared “Azov” a terrorist organization only in August 2022, i.e., three months after the POWs’ capture when they were fighting as UAF units. The National Anti-Terrorism Committee of Russia listed several reasons for the decision, namely threatening Russian security by participating in hostilities in the east of Ukraine and sabotage operations in Crimea; supporting neo-Nazi and radical ideology; and the commission of war crimes.
Thus, charges against POWs largely focus on their fight against Russian forces, i.e., “lawful acts of war committed in the course of an armed conflict,” which are clearly within the combatant’s immunity. Even where they might technically qualify as terrorism in peacetime (e.g., hostile acts against Russian servicemen, so-called “DPR” members, or military units), during the armed conflict, combatant’s immunity precludes full-scale CTL application to conflict-related conduct, preventing collision with the combatant’s immunity.
This means that the only grounds upon which Azov members might potentially be prosecuted are either the participation in “terrorist” activities unrelated to the armed conflict (e.g., committed in other contexts outside the fighting) or the commission of the war crime of terror. None of these grounds appear to be manifestly invoked by the Russian prosecution.
Likewise, declaring “Azov” and “Aidar” units, which are constituents of the Ukrainian army, as terrorist organizations and prosecuting POWs for the sole fact of membership therein, equally undermine the combatant’s privilege. POWs’ enlistment in their respective units is inevitably “materially required” for the participation in fighting the war and thus cannot be subjected to prosecution. Even where, as Russia contends, individual “Azov” or “Aidar” members might have been involved in the commission of war crimes, criminal responsibility must be individual and target actual authors of the offense and not their comrades.
If an author cannot be determined, “it must be accepted that the violation will remain unpunished” (III GC Cmt, §3689). Prosecuting combatants for war crimes committed by their comrades might constitute a form of collective punishment prohibited under IHL, i.e., a “penalty inflicted on a group of persons without regard to individual responsibility for the conduct giving rise to the penalty” (ibid). Otherwise, Russian authorities would be free to declare any Ukrainian unit a “terrorist organization” and prosecute every Ukrainian POW for their membership therein, which would render combatant immunity entirely futile.
While Russian-held trials of the Ukrainian defenders raise serious allegations of due process violations, most fundamentally, they seem to be based on bogus pretexts from the outset. As captured members of UAF units, the accused qualify as POWs and thus are protected from prosecution for lawful acts of war by the combatant’s privilege.
Where POWs’ conduct might bear signs of terrorism-related offenses, charges can only concern international crimes (e.g., the war crime of terror) or terrorism offenses distanced from the armed conflict. In an IAC, broader CTL application is arguably only possible where it does not conflict with IHL and combatant’s privilege. Recognizing POWs’ units as terrorist organizations and trying POWs for the mere fact of enlistment undermines their immunity and might constitute collective punishment prohibited under IHL.
Russian sham trials thus appear to entirely negate these core IHL principles, and appear aimed at de facto legitimizing revenge against the POWs for fighting in defense of their country. The allegations above, in addition to broader concerns about impartiality and respect for the rights of the accused, may point to the commission of a grave breach of IHL under Article 130 of the Third Geneva Convention and the war crime of denying a fair trial under Article 8(2)(a)(vi) of the Rome Statute.