Alexander Bastrykin, the head of Russia's Investigative Committee, told government newspaper Rossiiskaya Gazeta that over 1,300 criminal investigations had begun against Ukrainian nationals. He also proposed an international tribunal backed by countries including Iran, Syria and Bolivia -- traditional allies of Russia --, according to a BBC report on July 25.
“Given the utter disrespect for international law and the purposeful demolition of domestic rule of law performed by Russia lately, it is hard to take this announcement seriously from a legal perspective,” says Sergey Vasiliev, a Russian-Dutch international criminal law expert at the University of Amsterdam. “The only way this announcement can make sense is if it is placed in the ideological lawfare context. The ultimate purpose is to counter-pose Russia's quasi-legalist narrative of crime and punishment against multiple efforts and initiatives to hold alleged war criminals responsible undertaken by the West and by Ukraine.”
Following the Russian aggression on February 24, Ukraine has been remarkably quick and astute in its legal offensive against Russian war crimes, as Justice Info has reported, as well as putting up military resistance on the ground. The International Criminal Court and numerous Western states have opened war crimes probes. Ukraine says it has opened more than 21,000 cases, and is already holding its first war crimes trials of captured Russian soldiers.
“Deny everything and blame the other side”
Natalia Sekretareva, a lawyer for the Russian NGO Human Rights Defence Memorial, says Moscow may see these statements and possible prosecutions as “necessary to maintain the narrative the state has been promoting for eight years now”. “This represents the way the authorities often deal with violation allegations,” she told Justice Info. “They deny everything and blame the other side. Lawyers working with torture victims can testify to how many times police claimed that the person fell out of the window or inflicted injuries themselves all over their body.”
Amnesty International also reacted to the Russian news, slamming a “lack of transparency” and a “brazen disregard for international fair trial rights and international humanitarian law” on the part of authorities in Moscow. “The Geneva Conventions clearly state that prisoners of war, including members of the armed forces, are protected from prosecution for taking part in hostilities,” said Denis Krivosheev, Amnesty’s Deputy Director for Eastern Europe and Central Asia in a July 25 press release. “If individuals are to be charged with alleged crimes against humanity, there must be sufficient evidence to support such a claim. The Russian authorities have shared no evidence to support these charges. Instead, they deployed disinformation blaming Ukrainian forces for acts such as the destruction of the Mariupol theatre, a civilian building shattered by a deliberate Russian attack.”
No “crimes against humanity” in Russian criminal law
Vasiliev thinks references in Western reports to “crimes against humanity” may be mistaken, as these crimes are not incorporated into Russian criminal law. “Bastrykin reportedly said it is about 'crimes against peace and security of mankind' - but this clearly refers to the entire chapter 34 of the Russian Criminal Code, which features 10 articles including those relating to aggressive war, the use of banned means and methods of war (a rudimentary provision on war crimes), rehabilitation of Nazism, genocide, mercenarism, attacks against personnel enjoying international protection, and acts of international terrorism,” he explains. “There's no provision on crimes against humanity as a separate category in the Criminal Code - this is one of the serious gaps in the domestication of ICL [international criminal law] in Russia. So one can expect said charges to concern any of the above-mentioned offences, but crimes against humanity are not one of them.”
Sekretareva concurs. “The Russian Criminal Code does not codify crimes against humanity, so probably the authorities will not charge anyone with that,” she says. “But then again it is rather hard to predict what is going to happen because it's not very clear what is the legal basis of the Russian authorities' actions.”
She also says that to her knowledge, Russia has not so far produced any evidence. “I am not sure it ever will. For example, we have no idea on what grounds Supreme Court judge Nazarova declared Azov a terrorist organisation,” she says, referring to the Azov Battalion, a controversial unit incorporated in the Ukrainian army and which played a key part in the defence of Mariupol. “Apart from that, only the authorities have access to what's happening on the occupied territory. So, even if one wanted to access some data on, let's say, Mariupol, one couldn't. There is talk about the Investigative Committee questioning Ukrainian citizens arriving in Russia from conflict zones.”
Tit for tat?
Vasiliev sees the Russian move as part of the Kremlin's attempt to “weave the alternate reality complete with a self-produced victimhood narrative”. He notes that Moscow used allegations of Ukrainian “genocide” against Russian speakers in the east as justification for its aggression. Moscow also claimed that it needed to “de-Nazify” Ukraine. But given the Ukrainian and Western offensive on Russian war crimes, Moscow’s counter-offensive has been slow and now “the Russian law-enforcement is slowly catching up in fulfilling this ideological function”.
“Rather than a mere tit-for-tat, it is an aspect of a broader enterprise to claim ownership of ICL's conceptual apparatus and rhetorical power whereby Russia tries to challenge Western monopoly of the project,” he says. “In terms of delivery, though, this announcement appears to parrot and serve as a response to Ukraine's deft weaponization of criminal law. Note the obsession with quantification, which tracks the Ukrainian Prosecutor General's communications: it mentions the (impressive) number of cases and accused just to allude to the scale of the exercise and the intention to keep the stats henceforth.”
Both Vasiliev and Amnesty International also note that the news followed a case in early June when a separatist “court” in Russian-occupied Donetsk, eastern Ukraine, sentenced two captured British nationals and a Moroccan national to death for being “mercenaries”. “I see it as part of the continuum of similar Russian announcements and efforts over the past months - a sequel of sorts to the idea of an international tribunal in Donetsk to try the Azovstal defenders [in Mariupol]; and the recent 'DNR' [Donetsk separatist entity] convictions of and death penalties for the trio of the British and Moroccan 'mercenaries', who are in fact members of Ukrainian Armed Forces and could not be prosecuted for participation in hostilities,” says Vasiliev.
Bastrykin and internal power struggles
It is not clear, says Sekretareva, whether the people Russia says it has charged or plans to prosecute are POWs [prisoners of war] or Ukrainians still in Ukraine. “I'd say perhaps both,” she says. “Should the trials happen in "DNR" or "LNR" [Russian-backed separatist states in eastern Ukraine], no one will have access to the proceedings. Should they happen in Russia, it might as well be the same.”
Vasiliev also thinks there are Russian internal political considerations at play. “Bastrykin, the head of the Investigative Committee, is a prominent and influential long-serving 'silovik' (strongman from the intelligence services) in the regime. Like everyone else in the top echelon, he finds himself in the midst of under-the-cover power struggles among the elites competing for influence and attention,” he says. “Spearheading the international criminal lawfare on behalf of Russia and staging prosecutions of Ukrainian 'international criminals', is the means for him to demonstrate, yet again, his loyalty to the war party line and to the leader. He is using powers available in the domain under his control to strengthen his public profile and secure his position in the present political constellation and in whatever regime might come after.”
