The first trial in the USA about war-crimes in Ukraine

On 6 December 2023 the USA joined those States which have initiated criminal proceedings related to war crimes committed by Russian citizens in Ukraine. That day the US Ministry of Justice publicised the indictment accusing four Russian soldiers (Suren Mkrtchian, Dmytro Budnyk and their accomplices, known only as ‘Valerii’ and ‘Nazar’) that from 2 to 12 April 2022 they committed a number of serious violations of International Humanitarian Law with regard to a US citizen, denoted in the indictment as ‘V-1’, in Mylove village (Kherson Region).

There follow answers to certain questions that may arise concerning the Mkrtchian case and others.

Does International Law give the USA the right to bring charges against Russian soldiers for events that took place on Ukrainian soil?

Yes, and that should stir no doubts. Today International Law permits States to prosecute and punish those who have committed crimes against their citizens. This is known as jurisdiction on the principle of “passive legal subordination”. And there is nothing surprising about it: a State has an absolutely legitimate interest in defending its own citizens against criminal acts committed in other countries.

Is it true that the USA recently changed its own legislation to take such cases into account?

At the end of 2022 the US Congress indeed passed an important law that expanded American jurisdiction to include the prosecution of war crimes.

It concerns the prosecution of foreign war criminals, however, who turn up in the USA. Even if that law had not been adopted, the United States could in any case have brought charges against Russia’s soldiers.

What war crimes are these Russian citizens accused of committing?

According to American legislation responsibility for war crimes is covered by two items in the US Code: § 2441 “War Crimes”, and § 2442 “The Recruitment and Use of Child-Soldiers”.

Furthermore § 2441 (War Crimes) does not list war crimes directly – as is done, for instance, in Article 8 (2) of the International Criminal Court’s Rome Statute. Instead, it refers to international agreements about International Humanitarian Law (IHL) to which the USA is a party. In the case of Mkrtchian and others there is reference to such grave breaches of IHL as war crimes listed in Article 147 of the Fourth Geneva Convention (”Protection of civilian persons in time of war”): unlawful confinement (point 2), torture (point 3) and inhuman treatment (point 4) of persons under the protection of the Geneva Convention.

In practice, the accusation of torture and inhuman treatment refer to one and the same actions in the indictment: detention of the victim against his or her will, beating, the threat of sexual violence and killing, and also the simulation of an execution.

The war crimes of ‘torture’ and ‘inhuman treatment’ share many features and in many respects are similar, one to another. They are distinguished by the degree of pain inflicted on the victim. By drawing up accusations of torture and inhuman treatment in regard to the same events, it appears that US prosecutors are endeavouring to make sure they will still have a case if the court does not find the evidence convincing that the mistreatment of V-1 reached such a level of inflicted pain as to be classified as torture.

This is not the only instance of juridical caution to be found in the text of the indictment. [юридическая подстраховка]

In points 2 to 4 of the indictment it is consistently stated that the accused is either considered guilty of committing the said war crimes, or colluded in committing them, or incited others to commit them. Such alternative accusations are entirely familiar in the US system of criminal justice and are calculated to allow for those cases where the attorney’s office and the court may differ in their view of the individual’s role in committing a specific crime.

Furthermore, according to point 1 of the indictment the four Russians are accused of entering into the crime of conspiracy (§ 371 US Code) to commit war crimes.

This accusation has been added in case the attorney’s office cannot prove that Mkrtchian or one of his accomplices took part in the unlawful confinement, torture or inhuman treatment of V-1 or even that they engaged in collusion or incitement to commit such acts. Again, this is common practice in US criminal proceedings. It appears questionable in the light of international law, which recognises guilt for conspiring to commit acts of genocide but not for conspiring to commit war crimes.

What are the prospects of success for this case? Could the accused Russians be tried in the USA in absentia?

At present the prospects of prosecuting this case are quite uncertain.

It is highly unlikely that the accused will be handed over to the USA and yet a hearing of the case is not possible, according to a ruling of the US Supreme Court, if the accused are not present at the beginning of the trial.

Might the International Criminal Court examine the case of Mkrtchian and others?

In theory, this is possible since the events took place on Ukrainian soil and Ukraine has long acknowledged the jurisdiction of the International Criminal Court (ICC). In practice, the ICC Prosecutor’s Office has consistently striven to bring charges of international crimes (war crimes, crimes against humanity, etc) against those who stand at the top of the chain of command, leaving the remaining cases to national jurisdictions.

And if this case were to be heard by the International Criminal Court the legal classification of the actions of the accused would be rather different.

In particular, the indictment says that Mkrtchian and his accomplices committed acts of a sexual nature against V-1. Unfortunately, the rather dated legal framework of Article 147 of the Fourth Geneva Convention on which § 2441 of the US Penal Code depends does not permit these acts to be named while the Rome Statute considers that they constitute a separate war crime, Sexual Violence (Article 8.2 [b] xxii).

This case underlines yet again how important it is that the national classification of war crimes coincides as far as possible with modern international law.

Could Ukraine put these Russian soldiers on trial? How would that affect criminal proceedings in the USA?

The criminal acts of which these Russian citizens stand accused in the USA display features of a criminal offence envisaged by Article 438 of the Ukrainian Criminal Code: “Violation of the rules of war”. The acts were committed on Ukrainian soil and therefore fall within the country’s jurisdiction and Ukraine has already issued verdicts in absentia many times concerning war crimes.

Ukraine could certainly institute its own criminal proceedings against Mkrtchian and his accomplices and on that basis, bring them to trial and prosecute them. This would in no way affect the criminal proceedings in the USA. Ukraine and the United States have not concluded an international treaty that would oblige the USA to recognise a verdict reached in Ukraine and close down a criminal investigation under way in the United States.