The Center of National Resistance announced on January 27, 2023 that representatives of the Russian private military company “Wagner” are forcibly recruiting Ukrainian prisoners facing criminal accusations. The occupiers abducted a total of 3,500 detainees from the occupied territories of Zaporizhzhya and Kherson.
Since the majority of them refuse to sign contracts, they are subjected to inhuman treatment . This story contains so many violations of international humanitarian law and human rights that it is difficult to mention them all. Oleksiy Plotnikov, expert in international judiciary, shall attempt to provide a legal qualification of only the most important ones.
There have been previous reports of the forced relocation of Ukrainian detainees from prisons in the Russian-occupied Ukraine’s southern mainland regions to Russia-occupier Crimea. According to the estimations of the public organization “Protection of Prisoners of Ukraine”, the Russian occupiers criminally deported more than three thousand individuals by the end of 2022 .
Such removal is a breach of international humanitarian law and an international crime. Article 49 of the Convention on the Protection of the Civilian Persons in Time of War prohibits “individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not” . Article 85 of the Additional Protocol to the Geneva Conventions of 1974 clarified that the deportation or transfer of all or part of the occupied territory’s population inside its borders is also a violation .
The forcible transfer of any population, including individuals convicted of criminal offenses and defendants in detention, may constitute a crime against humanity or a war crime, depending on the circumstances. According to Article 7 (2) (d) of the Rome Statute of the International Criminal Court, deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law, constitutes a crime against humanity .
In the Krstic case, the International Criminal Tribunal for the Former Yugoslavia (ICTY) noted that “the term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention (ours Italic), psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment” [6, 529].
According to Article 8 (2) (a) (viii) of the Rome Statute, unlawful deportation or transfer or unlawful confinement are war crimes, and Article 8 (2) (b) (viii) of Statute classifies as a war crime the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Therefore, the transfer of detainees from the occupied left bank of the Dnipro to the occupied Crimea is equal to their deportation from Ukraine, that happens later, during trafficking prisoners to Russia.
In its decision in the Stakić case, the ICTY found that acts of forcible transfer may be sufficiently serious as to amount to other inhumane acts . Consequently, we can also discuss the crime outlined in articles 7 (1) (k) of the Rome Statute – other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health and 8 (2) (a) (ii) of the Rome Statute torture or inhuman treatment, including biological experiments.
In concluding examination of the issue of deportation, it must be emphasized once more that the position of deportees as prisoners has no bearing on their status as victims of international crime.
This is especially evident in light of the fact that all detainees in the pre-trial detention center in the occupied territory of the Kherson region had their “detention terms extended by six months by order” of the illegal, so called “extraordinary commission of the military civil administration of the city of Kherson” . Such criminal “extension” without legal court decision automatically renders the detention of these individuals unlawful.
Consequently, those responsible for the deportation of at least a part of the displaced individuals committed a crime under Articles 7 (1) (e) of the Rome Statute – imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law and 8 (2) (a) (vi) of Statute – willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial.
However, let’s proceed right to recruitment. The private military company “Wagner” is recognized as an international criminal organization in Ukraine . Therefore, the requirement to enter it is equivalent to illegal action. Nonetheless, it is improbable that all Ukrainian inmates who join “Wagner” are mercenaries in international legal meaning of this word.
According to Article 47 of Additional Protocol I to the Geneva Conventions and Article 1 of the International Convention against the Recruitment, Use, Financing and Training of Mercenaries , one of the defining characteristics of a mercenary is participation in hostilities motivated primarily by the desire for personal gain.
A further requirement is that the individual cannot be a citizen of a party to the conflict nor a permanent resident of the territory controlled by that party. Thus, not only Ukrainian prisoners do not meet the description of a mercenary, even if they criminally joined the “Wagner” voluntarily and with the intention of making a profit, but also the majority of “Wagnerites”, as the majority of them are citizens of the Russian Federation as a state-party to the conflict.
For the vast majority, if not all, of the convicts forced to join the“Wagner”, participation in hostilities against their state should be considered a result of criminal compulsion. According to Article 40 of Geneva Convention IV, “if protected persons are of enemy nationality, they may only be compelled to do work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is not directly related to the conduct of military operations”.
Article 51 of the same Convention prohibits the occupying power from compelling protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted. The occupying power is permitted to compel the protected persons to work other than which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country.
Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations…In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character.
From the perspective of international criminal law, such acts fall under the definition of the crime set forth in Article 8 (2) (b) (xv) of the Rome Statute: compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war. Therefore, Ukrainian inmates who were compelled to join the “Wagner” are rather victims of a war crime.
Obviously, this does not apply to people who voluntarily joined the Russian criminal organization. Their activities may constitute a violation of Ukrainian Criminal Code’s articles 111 (treason), 1111 (collaborative activity), 1112 (support to an aggressor state), 255, and 2551 (creation, management of a criminal community or criminal organization, as well as participation in it). Nevertheless, according to the NGO “Protection of Prisoners of Ukraine”, even among Ukrainian prisoners, few are willing to aid the enemy .
Thus, the recruitment of persons in places of detention in the occupied territories of Ukraine, both on the mainland and in the Crimea, which continues despite the limited “number of places” in the occupiers’ illegal “Crimean colonies”, is an international crime. Also an international crime is the ongoing large-scale recruitment of such persons, forcibly displaced from Ukraine to the Russian Federation.
The relevant facts allow us to speak about the International Criminal Court’s jurisdiction of both the leadership and other “Wagner” functionaries under the relevant paragraphs of the articles of the Rome Statute, at least in part of this recruitment taking place in the occupied territory of Ukraine.