Conflicting laws make pursuing such cases more difficult – while criminalising some former fighters may only serve Russian interests.
Since 2014, an estimated 100,000 Ukrainians have been forcibly conscripted in the eastern Donbas region, while thousands more are believed to have been coerced into fighting against Ukraine. Andriy Yakovlev, a lawyer at the Kyiv-based Regional Centre for Human Rights, told IWPR’s Svitlana Morenets that legal complexities surrounded any attempt to prosecute Russia’s forced conscription.
IWPR: What does the law say about the forcibly conscripted residents of the occupied territories?
Andriy Yakovlev: Forced conscription violates the IV Geneva Convention and is a war crime under the Rome Statute [the treaty that established the International Criminal Court in 1998].
Hence, residents of occupied territories who were forcibly conscripted into the armed forces of a hostile state are victims of war crimes committed, in Ukraine’s case, by Russians. But there is a difference between forced conscription and shifting to the enemy’s side during an armed conflict. The latter is treason and, under Ukraine’s martial law, is punishable by imprisonment from 15 years to life with confiscation of property, as per Article 111 of the criminal code of Ukraine.
However, Ukrainian citizens are exempt from criminal liability if they did not take any illegal actions and voluntarily declared to the state authorities their connection with Russians and the tasks received.
Is there a difference between prosecuting Russian prisoners of war and Ukrainian citizens who joined the Russian army?
A person cannot be tried for participating in an armed conflict because of combatant immunity [which bars the prosecution of combatants for mere participation in hostilities], but they can be tried for committing international crimes, including war crimes. Russian soldiers are criminally prosecuted in Ukraine for war crimes.
Ukrainian citizens who were forcibly conscripted in the occupied territories can be tried for crimes committed against the foundations of the national security of Ukraine. That is, crimes against Ukraine’s sovereignty, although it is an inaccurate generalisation. Switching to the enemy’s side is high treason. The position of Ukraine’s prosecutor general’s office now is that the exemption from criminal liability is annulled if a person voluntarily switched to the enemy’s side and signed a contract.
How do you determine whether a person has been forcibly conscripted?
Ukraine’s human rights groups believe that you cannot voluntarily agree to participate in an armed conflict when your territory is under occupation. What [free] choice can we talk about if Russians just pick up Ukrainians in the streets and take them to the front line?
If a person was forcibly conscripted, they should be exempt from criminal liability. But, in my opinion, the more time passes since you are conscripted, the fewer opportunities you have to claim that you were forced. It is surely possible to be a victim for some time and I understand that there are times when a person is left with no other options. But when there were many chances to surrender, and the person chooses to resist, they could not call themselves a victim of forced conscription.
If an individual has signed a contract [with the army], received a salary, and spent that money, chances are that they are not a victim. Participation in an armed conflict is not just about shooting and killing. It is helping with training, serving ammunition, handing over the location of Ukrainian troops and so on.
Are there examples of prosecuting Ukrainian civilians who were forcibly conscripted?
In Poltava, eight soldiers of the self-proclaimed Donetsk People’s Republic detained in the Sumy region are currently standing trial. They surrendered, but that was not voluntarily: they fled during the Ukrainian army offensive and later surrendered. The examination of weapons showed that the machine gun of one of the defendants had been fired shortly before he was captured. No one can say whether these shots were fired at the firing range during training or in Ukraine during hostilities.
The trial is still ongoing, and they are all liable for treason. But it is important to note that such people tend to plead guilty. Lawyers advise them to do so because that improves their possibilities for exchange as prisoners of war.
Ukraine carried out an “anti-terrorist operation” in Donbas until the February invasion. How were forcibly conscripted Ukrainians tried then?
This is another problem. Terrorists use unlawful violence and intimidation, especially against civilians, in the pursuit of political aims. Terrorist attacks can be carried out during both peacetime and wartime. What happened in Olenivka against Ukrainian soldiers, who were prisoners of war, can be considered a terrorist attack from Russia.
Participating in terrorist activities is a serious liability. Our investigators sometimes use this term because it makes it easier to conduct investigations and prosecutions. The more serious the crime, the more tools they have and the fewer obstacles to the investigation. But in fact, prosecuted people from occupied territories of Ukraine always admitted their guilt. They were interested in being exchanged as prisoners of war as soon as possible.
Otherwise, you need a lawyer to come and say, “This is not terrorism, this is an international armed conflict, you deny a conflict with the Russian Federation, in fact, you say that we have no war.” But somebody has to say that. Such cases are very toxic and very few people agree to work with them. It’s very hard to find a lawyer. Imagine me saying, “He’s not a criminal, he’s a combatant, and combatants can’t be tried. The case must be closed.” What would Ukrainian journalists say about this? Yes, I would be telling the truth, but Ukrainian society has other demands right now.
Ukraine prosecuted combatants as terrorists between 2014 and 2021. It reflects that Kyiv was not recognising the existence of an armed conflict with the Russian Federation. It was more complicated then. Even the Prosecutor at the International Criminal Court (ICC])said we had “a mixed conflict”.
If we have a confrontation between states, it is an international armed conflict. The term war is not used in modern law because it requires a formal declaration. No one has declared it for a long time. A non-international conflict is when a state opposes some organised forces or when organised forces fight against each other. When another state supports organised forces, that makes it an international conflict.
And so we kept saying that we had an international armed conflict with the Russian Federation, starting in February 2014, when Crimea was occupied. But in the east the situation was different. The ICC said that there was an international conflict at certain points, and at other times there was a non-international armed conflict. Therefore, cases about the customs and norms of war conflicted with peacetime laws.
What should Ukraine do now with forcibly conscripted residents of the occupied territories?
We need to create a mechanism that will weaken the Russian Federation. When all of Ukraine is on fire, our task is not just to punish someone, but to weaken the enemy. Russia can mobilise more and more people from the occupied territories. If we can’t free them from criminal responsibility, they will stay in the Russian armed forces and attack our cities. We should be interested in bringing these people back [on our side]. And how will we do that if they are being prosecuted for high treason?
Ukraine has to create an easy [legal] procedure for forcibly conscripted residents of the occupied territories. To make them surrender to the Ukrainian army, even if they will be held as prisoners of war.
The Russian Federation does not conscript its own people to avoid social explosions. That is why they have been forcibly conscripting people from occupied territories for eight years. If we neutralise this possibility, this can contribute to the victory of Ukraine in this war. This is what human rights groups are working on.
This publication was prepared under the “Ukraine Voices Project” implemented with the financial support of the UK’s Foreign, Commonwealth, and Development Office (FCDO).