by Travis Normand
December 6, 2023

This post is about the herein referenced charges filed by the U.S. Department of Justice. However, it this post also contains information about the status of the Defendants in an armed conflict. The second-part of the post, related to the Defendants’ status, was included due to the terminology used to describe the Defendants in the articles below.

(Part 1): U.S. DOJ Files Charges Under U.S. War Crimes Law:

Apparently the U.S. Department of Justice has filed charges under a U.S. war crimes law that was passed in 1996 (the War Crimes Act of 1996). According to the DOJ, this is the first time charges have been filed using this law. While I imagine this is purely a political move of some kind or another, I don’t really discuss politics on this blog (or at least, I don’t discuss them directly; and I try not to speculate).

In any event, I have posted several articles below as well as a short synopsis of each article. I have also included a link to the indictment, which can be read HERE.

ARTICLE 1:

“Russian-affiliated soldiers charged with war crimes for allegedly torturing U.S. citizen in Ukraine: DOJ;” by Bart Jansen, USA Today, Published Dec. 6, 2023; found online: https://www.usatoday.com/story/news/world/2023/12/06/russian-soldiers-charged-war-crimes-ukraine/71823739007/

According to the United States Justice Department, four Russia-affiliated soldiers were indicted for war crimes in the Ukraine conflict for allegedly locking up and torturing a U.S. citizen after the invasion in February 2022. The charges are brought under a U.S. war crimes law, and are the first ever brought under said law. The four defendants are charged with three (3) war crimes: (1) unlawful confinement; (2) torture; and (3) inhuman treatment; and one count of conspiracy to commit war crimes. If convicted, the defendants each faces a maximum sentence of life in prison. However, none of the men are in custody. To be more specific, according to the indictment, the defendants allegedly threatened to kill the victim and conducted a mock execution.

As you can read from the quote below, the DOJ has pointed out that the charges not only constitute grave breaches of the Geneva Conventions, but are also a violation of U.S. law.

“These charges reflect that the defendants’ alleged actions are not only grave breaches of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, but also violations of U.S. law,” said Jessica Aber, U.S. attorney for the Eastern District of Virginia.

“Russian-affiliated soldiers charged with war crimes for allegedly torturing U.S. citizen in Ukraine: DOJ;” by Bart Jansen, USA Today, Published Dec. 6, 2023; found online: https://www.usatoday.com/story/news/world/2023/12/06/russian-soldiers-charged-war-crimes-ukraine/71823739007/

(Note: I am curious as to why the article has referred to the Defendants as “Russian-affiliated soldiers” instead of “Russian Soldiers.” After all, they are either members of the Russian military and thus a Russian Soldier, or they are not, right? See below under Article 2 for more discussion.)

ARTICLE 2:

“Four Russia-Affiliated Military Personnel Charged with War Crimes in Connection with Russia’s Invasion of Ukraine;” Wednesday, December 6, 2023; For Immediate Release: Office of Public Affairs, Department of Justice; found here: https://www.justice.gov/opa/pr/four-russia-affiliated-military-personnel-charged-war-crimes-connection-russias-invasion

This is a press release from the U.S. Justice Department and it contains two quotes that I would like to highlight (see below; emphasis added):

War crimes charges against four Russia-affiliated military personnel were unsealed today in the Eastern District of Virginia. The charges include torture, inhuman treatment, and unlawful confinement of a U.S. national in Ukraine following Russia’s full-scale invasion of Ukraine in February 2022.

“Four Russia-Affiliated Military Personnel Charged with War Crimes in Connection with Russia’s Invasion of Ukraine;” Wednesday, December 6, 2023; For Immediate Release: Office of Public Affairs, Department of Justice; found here: https://www.justice.gov/opa/pr/four-russia-affiliated-military-personnel-charged-war-crimes-connection-russias-invasion

“Acting on behalf of the Russian Armed Forces and the so-called Donetsk People’s Republic, these four individuals allegedly violated the human rights of an American citizen,” said Executive Associate Director Katrina W. Berger of Homeland Security Investigations (HSI).  “According to the charges, they unlawfully detained and tortured the American citizen, and even went so far as to carry out a mock execution. The unsealing of these charges for war crimes is an important step in bringing the responsible parties to justice. HSI will continue to aggressively pursue anyone who violates the human rights of our American citizens – at home or overseas.”

“Four Russia-Affiliated Military Personnel Charged with War Crimes in Connection with Russia’s Invasion of Ukraine;” Wednesday, December 6, 2023; For Immediate Release: Office of Public Affairs, Department of Justice; found here: https://www.justice.gov/opa/pr/four-russia-affiliated-military-personnel-charged-war-crimes-connection-russias-invasion

Not only did the USA Today article above refer to the Defendants as “”Russian-affiliated soldiers,” but now the press release from the U.S. DOJ has referred to them as: “Russia-affiliated military personnel.”

Without knowing more, I believe the term used by the DOJ (“Russia-affiliated military personnel”) is more accurate, as the Defendants appear not to be actual Russian soldiers (i.e., they are not officially part of the Russian military). Instead, they are apparently acting on behalf of the Russian military and the Donetsk People’s Republic (or “DPR”).

The DPR is an internationally unrecognized republic of Russia located within the occupied region of eastern Ukraine. It was created by Russian-backed paramilitaries in 2014 and it initially operated as a breakaway state until it was annexed by Russia in 2022.

Therefore, as an initial matter, I have a question regarding the status of the DPR’s forces, and whether they would qualify under IHL for any kind of status different from a civilian. At this time, I have no further information on whether they qualify, but if they are not members of the Russian military, then “Russian-affiliated military personnel” is the more accurate term for now.

I mention this because under IHL, international law, and even U.S. law; your status in an armed-conflict matters! And while I don’t expect everyone to know the technical definitions, these Defendants may be associated and/or affiliated with the Russian military, but I am not sure if they are “soldiers” or not.

ARTICLE 3:

“Justice Department Brings First Ever War Crimes Charges Against Four Russian Soldiers;” by Matt Gluck, December 6, 2023; LawFare.com; posted online here: https://www.lawfaremedia.org/article/justice-department-brings-first-ever-war-crimes-charges-against-four-russian-soldiers

Oddly enough, the article at LawFare.com refers to the Defendants as “Russian Soldiers” in its article’s headline; and then, in the first paragraph, as follows (emphasis added):

“On Dec. 6, the Justice Department unsealed an indictment in the Eastern District of Virginia against four members of the Russian military or its affiliate Donetsk People’s Republic (DPR) forces—two commanding officers and two lower-ranking service-members—for alleged war crimes committed against a U.S. national.”

“Justice Department Brings First Ever War Crimes Charges Against Four Russian Soldiers;” by Matt Gluck, December 6, 2023; LawFare.com; posted online here: https://www.lawfaremedia.org/article/justice-department-brings-first-ever-war-crimes-charges-against-four-russian-soldiers

As you can see, in the first paragraph, it again says the Defendants are members of the Russian military … OR … its affiliate Donetsk People’s Republic (DPR) forces.

My question is, which is it? Are they members of the Russian military or are they DPR forces? As stated before, this is an important distinction under IHL.

(Part 2): Status of the Defendants in an Armed Conflict:

I am still looking into the distinction referenced above, and I hope to write more about it in the future (regardless of whether it affects the charges brought by the U.S. DOJ). However, below are some interesting links that I have found on the topic so far.

“UKRAINE SYMPOSIUM – FORCED CONSCRIPTION IN THE SELF-DECLARED REPUBLICS;” by Marten Zwanenburg, August 8, 2022, published at Articles of War, Liber Institute at West Point; found online here: https://lieber.westpoint.edu/forced-conscription-self-declared-republics/

“Dutch Court, in Life Sentences: Russia Had “Overall Control” of Forces in Eastern Ukraine Downing of Flight MH17;” by Marieke de Hoon, December 19, 2022, published at JustSecurity.org; found online here: https://www.justsecurity.org/84456/dutch-court-in-life-sentences-russia-had-overall-control-of-forces-in-eastern-ukraine-downing-of-flight-mh17/ (“… the District Court of The Hague declared in its Nov. 17, 2022, ruling that the evidence it examined in this case clearly shows that the Kremlin in 2014 had ‘overall control’ of the forces of the self-proclaimed Donetsk People’s Republic (DPR).”)

“The MH17 Judgment: An Interesting Take on the Nature of the Armed Conflict in Eastern Ukraine;” by Lachezar Yanev, December 7, 2022, published at EJIL:Talk!; found online here: https://www.ejiltalk.org/the-mh17-judgment-an-interesting-take-on-the-nature-of-the-armed-conflict-in-eastern-ukraine/

“UKRAINE SYMPOSIUM – CLASSIFICATION OF THE CONFLICT(S),” by Michael N. Schmitt, December 14, 2022, published at Articles of War, Liber Institute at West Point; found online here https://lieber.westpoint.edu/classification-of-the-conflicts/

“Surviving Hell: Testimonies of Victims on Places of Illegal Detention in Donbas,” published in 2015; found online here: https://www.europarl.europa.eu/cmsdata/267941/Matviichuk_Report_Koalition_Surviving%20hell.pdf

“Trials of Ukrainian Prisoners of War in Russia: Decay of the Combatant’s Immunity,” by Maksym Vishchyk, August 21, 2022, JustSecurity.org; found online here: https://www.justsecurity.org/87702/trials-of-ukrainian-prisoners-of-war-in-russia-decay-of-the-combatants-immunity/ (Great article explaining what someone with combatant immunity may be prosecuted for.)

“The Legal Status of the Donetsk and Luhansk ‘Peoples’ Republics’: Jus Ad Bellum, Jus In Bello, Jus Post Bellum,” by Tymur Korotkyi and Nataliia Hendel, September 2018, found as a chapter in the book titled: “The Use of Force against Ukraine and International Law” (pages145-170), and found online here: https://www.researchgate.net/publication/327532759_The_Legal_Status_of_the_Donetsk_and_Luhansk_Peoples’_Republics_Jus_Ad_Bellum_Jus_In_Bello_Jus_Post_Bellum

“Jurisdiction and Combatant’s Privilege in the MH17 Trial: Treading the Line Between Domestic and International Criminal Justice,” by Lachezar Yanev, August 19, 2021, Netherlands International Law Review (68, 163-188; 2021); found online here: https://link.springer.com/article/10.1007/s40802-021-00193-8

“The Prosecution of British Fighters by Pro-Russian Separatists in Ukraine,” by Lawrence Hill-Cawthorne, June 14, 2022, published at EJIL:Talk! (Blog of the European Journal of International Law), found online here: https://www.ejiltalk.org/the-prosecution-of-british-fighters-by-pro-russian-separatists-in-ukraine/

If I had to guess:

Make no mistake. The status of the war in Ukraine has long been established, and I am sure there is already a consensus as to the status of the DPR forces. However, I am simply including this as an exercise in how such a determination is made.

For example, seeing that the DPR is not recognized as a “state” that is separate from the Ukraine, then an armed conflict between the DPR and the Ukraine could likely be nothing more than a non-international armed conflict (or NIAC). However, with Russia’s involvement in the conflict, and the DPR’s desire to be viewed as a separate state (apart from the Ukraine), this armed conflict is likely characterized by everyone as an international armed conflict (or IAC).

Assuming for a minute that the conflict is an IAC, the next question is whether the DPR forces qualify for combatant immunity or not. If they do, then they cannot be prosecuted for legal acts of war; but they can be prosecuted for war crimes and/or violations of domestic law. On the other hand, if they do not qualify for combatant immunity, then the ability to prosecute becomes broader.

Further, in relation to the charges filed by the U.S. DOJ, I am assuming that the U.S. has already determined: (1) that this armed conflict is an IAC; and (2) that regardless of any potential combatant immunity (under the Geneva Conventions or the Additional Protocols) the DPR forces are subject to jurisdiction and prosecution (as there is no immunity for the acts which they have been charged).

Why is any of this “status” stuff necessary? Because it provides the framework in which the U.S. can exercise its jurisdiction over the Defendants.

(NOTE: Another discussion could revolve around whether DPR forces are simply a non-state armed group participating in an IAC or NIAC; and/or whether the law of occupation, by Russia, should be applied as part of any analysis. Again, all of this has likely already been established, and I will post a full answer and analysis when I get a chance.)