Filip Siman Case
On August 6, 2024, the Municipal Court in Prague handed down a verdict in the case of Filip Siman—a ruling by a foreign court convicting an individual of a war crime committed in connection with the Russian-Ukrainian armed conflict (war). Subsequently, the High Court in Prague and the Supreme Court of the Czech Republic upheld the war-crime conviction.
The verdict against F. Siman is highly unusual from both a factual and a legal perspective. The factual uniqueness lies in the fact that—unlike the vast majority of defendants in criminal proceedings initiated abroad regarding war crimes linked to the Russian-Ukrainian conflict—F. Siman participated in the armed conflict on Ukraine’s side. In March and April 2022, he served in the “Carpathian Sich” volunteer battalion in the Irpin and Bucha areas. During this period, the accused misappropriated various items belonging to others, ranging from the oxygen mask of an An-225 “Mriya” aircraft pilot and a pair of Gucci sunglasses belonging to a deceased Russian serviceman, to valuables and cash belonging to Ukrainian civilians.
The Prague Municipal Court sentenced F. Siman to seven years of imprisonment under Section 414(1)(a) of the Czech Criminal Code. Section 414 is titled “Looting in a War Zone,” and subsection (1)(a) establishes liability for robbing the deceased or otherwise appropriating another person’s property in a war zone, on a battlefield, in areas affected by hostilities or armed conflict, or in occupied territory.
In a broader context, Section 414 is part of the “catalogue” of war crimes under Czech criminal law; in addition to this section, the catalogue includes Sections 411 (Use of prohibited means of warfare and illicit conduct of hostilities), 412 (Military cruelty), 413 (Persecution of the civilian population), 415 (Misuse of internationally recognized and state emblems), 416 (Misuse of a flag of truce), and 417 (Harm caused to a parliamentarian). Although criminalizing war crimes at the national level via such a “catalog” appears preferable to a blanket reference to sources of international law, certain specific features of the Czech catalog make it a suboptimal legislative solution for harmonizing national criminal law with international criminal law.
Like other national “catalogs” of war crimes (such as the one in the German Code of Crimes against International Law), the Czech catalog differs significantly in structure from the list of war crimes set out in Article 8(2) of the Rome Statute of the International Criminal Court (RS). However, it is far more significant that §§ 411–417 of the Czech Criminal Code diverge substantially from Article 8(2) of the Rome Statute in terms of both substance and terminology.
Some of the substantive divergences between the Czech Criminal Code and Article 8(2) of the Rome Statute are readily understandable, given that the latter treaty provision is not an exhaustive repository of all war crimes recognized under international criminal law. Thus, it is entirely justifiable for § 417 of the Czech Criminal Code to provide for liability for harming a parliamentarian—an act not mentioned in Article 8(2) of the Rome Statute but undoubtedly a war crime under customary international law. On the other hand, it is difficult to explain why the Czech “catalog” of war crimes omits certain offenses listed in Article 8(2) of the Rome Statute, such as the taking of hostages (Article 8(2)(a)(viii) and (c)(iii)). An even more significant departure from Article 8(2) of the Rome Statute is the classification as a war crime of obstructing or hindering civil defense organizations of an adversary, a neutral state, or another state while they are performing humanitarian tasks (§ 412(2)(b)); such an act does not constitute a war crime under either Article 8(2) of the Rome Statute or any other source of international criminal law.
Returning to § 414(1)(a) of the Czech Criminal Code—the provision F. Siman was convicted of violating—it is worth noting that this section serves as a striking example of the terminological divergences between the Czech “catalog” of war crimes and Article 8(2) of the Rome Statute. The first terminological distinction lies in the fact that the language of § 414(1)(a) of the Czech Criminal Code is considerably more abstract than that of Article 8(2) of the Rome Statute; consequently, the section in question encompasses a whole range of war crimes against property mentioned in Article 8(2)(a)(iv), (b)(xiii), (b)(xvi), (e)(v), and (e)(xiii) of the Rome Statute, as well as war crimes against property not mentioned in Article 8(2) of the Rome Statute—such as the appropriation of the property of the sick, the wounded, and the dead. Secondly, under international law, war crimes are characterized by a so-called contextual element, which entails that “the act took place in the context of, and was associated with, an armed conflict.” Section 414(1) of the Czech Criminal Code does not mention this specific element; instead, it stipulates that liability for robbing the dead or otherwise appropriating another person’s property arises if such acts are committed in a combat zone, on the battlefield, in areas affected by hostilities or armed conflict, or in occupied territory. If one aims to interpret Section 414(1) of the Czech Criminal Code in accordance with the norms of international criminal law, the aforementioned terminological differences can well be reconciled. However, without such a methodological approach, they may lead the law enforcer into a “trap” of decisions that are highly questionable from the standpoint of international law—which appears to be precisely what happened in the case of F. Siman.
In convicting the accused, the Prague Municipal Court cited, among other things, the provisions of international legal instruments that F. Siman had violated. In the court’s view, these provisions were Article 47 of the Hague Regulations concerning the Laws and Customs of War on Land, annexed to the 1907 Hague Convention (IV) (HR), and Article 33 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV). The first provision formally prohibits looting, while the second prohibits pillage. At first glance, both provisions appear relevant given the factual circumstances of F. Siman’s case; however, in reality, this is not the case. Article 47 of the Hague Regulations (HR) is addressed to a party to an international armed conflict (IAC) that has occupied foreign territory—a fact explicitly indicated by the title of Section III of the HR, “Military Authority over the Territory of the Hostile State,” under which this treaty provision falls. Thus, Article 47 of the HR is clearly inapplicable to F. Siman, as he seized property within the territory of Ukraine—the very side on whose behalf he was participating in hostilities.
The situation regarding Article 33(2) of the Fourth Geneva Convention (GC IV) is somewhat more complex. Section I of Part III of the Convention, which contains this article, is titled “Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories.” The first part of this title (“territory of a party to the conflict”) might seem to suggest that Article 33(2) of GC IV is relevant to F. Siman’s case. However, Part III of the Convention—of which the aforementioned Section I is a component—is titled “Status and Treatment of Protected Persons”; under Article 4(1) of GC IV, “protected persons” are defined as those who, at any given moment and in any manner whatsoever, find themselves—in case of a conflict or occupation—in the hands of a party to the conflict or an occupying power of which they are not nationals. Consequently, it is the property of such persons that Article 33(2) of GC IV protects against pillage. Accordingly, by fighting on the side of Ukraine, F. Siman could not have violated this provision of international humanitarian law (IHL) when seizing the property of Ukrainian natural or legal persons. As for the misappropriation of the property of a deceased Russian serviceman, Article 33(2) of the Fourth Geneva Convention (GC IV) does not apply to this incident either; this is because, under Article 4(4) of that Convention, persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (GC I) fall outside the scope of persons protected by GC IV. While a trend has emerged in modern international criminal and humanitarian law suggesting that nationals of a party to the Geneva Conventions who remain loyal to it may also be victims of war crimes, the manifestations of this trend observed to date relate exclusively to war crimes against the person, rather than war crimes against property.
Ultimately, the only treaty provision of international humanitarian law (IHL) that F. Siman actually violated is Article 15(1) of GC I, which prohibits the looting of the dead. As previously mentioned, such conduct is recognized internationally as a serious violation of IHL (a war crime). Accordingly, F. Siman’s conviction at the national level for this act—the misappropriation of a deceased Russian serviceman’s glasses—as a war crime is well-founded. However, regarding the majority of the charges involving the misappropriation of others’ property (specifically, property belonging to Ukrainian individuals and legal entities), international law should have classified these as “ordinary” thefts. Indeed, this was precisely the position argued by F. Siman’s defense. The court, however, noted that the provision concerning “ordinary” theft— “…could have been applied had the act described in the judgment been committed within the territory of Ukraine not directly affected by the war; however, the accused committed the acts in locations that, during the initial days of the armed conflict, were synonymous with human suffering and inhumane actions by the Russian Federation.”
In doing so, the court effectively fell into a “trap” created by the inconsistency between the terminology of Section 414(1) of the Czech Criminal Code and international law. It applied the provision in the strictest literal sense, relying on the fact that it links liability for the appropriation of property to the commission of such an act “in places affected by hostilities or armed conflict,” while ignoring the fact that not all such cases are characterized by the contextual element of war crimes, as they often fall outside the scope of international humanitarian law (IHL) altogether. This approach by the Prague Municipal Court resulted in F. Siman’s domestic conviction for several counts of property appropriation—classified as war crimes against property—even though such acts are not recognized as war crimes under international law. In a sense, the F. Siman case serves as the legal “antithesis” of the MH17 case, in which the District Court of The Hague went to great lengths to avoid classifying the actions of I. Girkin and his accomplices regarding the downing of Flight MH17 as a war crime.
