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soldiers or mercenaries, a matter of life and death

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The death sentence of two Britons and a Moroccan, engaged alongside Ukrainian forces, by Donetsk separatists has led to an international outcry. Behind this affair is a new showdown between Ukraine and Russia over the fate of the arrested soldiers.

“They came to Ukraine to kill civilians for money.” Sunday, June 12, Denis Pushilin, the leader of the self-proclaimed Donetsk People’s Republic (DPR), defended the death sentence of three foreign soldiers fighting within the Ukrainian forces, and ruled out any possibility of a pardon.

Tried by a court in this territory in eastern Ukraine, controlled since 2014 by pro-Russian separatists, Moroccan Brahim Saadoun, 21, and Britons Aiden Aslin, 28, and Shaun Pinner, 48, received the death penalty on June 9 for “mercenary activities” and participation in “actions aimed at seizing power and overthrowing the constitutional order”.

A procedure strongly contested by the Ukrainian government, which claims that the three men are army soldiers protected by international law.

The status of “prisoner of war”

The announcement of the verdict, through the Russian news agency TASS, provoked a wave of indignation in the West. The UN reaffirmed its opposition to the death penalty “in all circumstances” and called for detained combatants to be “treated in accordance with the Geneva Conventions”.

“The central issue in this case is the status of prisoner of war, which is granted to the parties involved in the conflict to prevent them from being tried and sentenced for their participation in hostilities”, explains Me Emmanuel Daoud, criminal lawyer at the bar. of Paris and close to the ICC.

According to the Geneva Conventions, which govern the rules of conduct to be adopted in times of conflict, soldiers and combatants who defend a recognized state are authorized to use force in situations of armed conflict. As such, they cannot therefore be prosecuted for their involvement, at least for having committed acts of particular gravity such as war crimes, crimes against humanity or genocide.

The propaganda of the “mercenaries”

For their part, the Donetsk authorities justify the prosecution of the three foreign nationals by the fact that they will not be soldiers or combatants but mercenaries, a category which will not benefit from the status of prisoner of war.

“This nuance is extremely tenuous because international law makes a distinction between combatants and mercenaries on very specific points relating to motivations, nationality or even salary”, explains Me Emmanuel Daoud.

The Geneva Conventions have rendered mercenaries as persons directly motivated in the conflict “in order to obtain a personal advantage” and whose “material remuneration is significantly higher” than that granted to combatants or soldiers. The text also stipulates that these people cannot be “neither nationals of a party to the conflict, nor residents of the territory controlled by a party”.

This definition does not correspond to the profiles of the three convicts presented by their entourages in the media. Brahim Saadoun’s father affirms that the young man, settled in Ukraine for his studies, had obtained Ukrainian nationality before joining the army. According to relatives of Aiden Aslin and Shaun Pinner, both have been living in the country for several years, married to Ukrainian women and serve in the national navy.

Judicial escalation

Another disturbing element, the death sentence of the three men comes a few weeks after the first trial of a Russian soldier before the Ukrainian justice. On May 24, a 21-year-old officer was convicted of a war crime for shooting dead a civilian in the Sumy region in the north of the country. He was sentenced to life imprisonment. Since then, two other Russian soldiers have received prison sentences for “violation of the laws and customs of war”.

The Ukrainian prosecutor general, Iryna Venediktova, had indicated in May that about forty Russian soldiers arrested in Ukraine could soon be tried for similar acts.

“Russia knows that Ukraine is collecting evidence of war crimes to prosecute its soldiers, including before international justice. Through the separatists, it sends a message to the government: “If you condemn our soldiers, we will do the same thing only worse'”, analyzes Anastasiya Shapochkina, a researcher specializing in Russia.

“This judgment is also a warning to kyiv’s international supporters,” she continued. “It aims to discourage volunteers by demonstrating the powerlessness of states to come to the aid of their arrested nationals. Finally, the narrative of ‘foreign mercenaries’ feeds Russian propaganda against its own people. That of a war not against the Ukrainian people but against Nazis supported by foreign powers.”

soldiers or mercenaries, a matter of life and death

Following their sentencing, the three men announced they would appeal, Russian news agency TASS reported, hoping to avoid execution by firing squad.

Engaged in a race against time to save her nationals, British Foreign Secretary Liz Truss said on Tuesday June 14 that she had worked “everything necessary” to secure their release.


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