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6 January, 2019  ▪  Stanislav Kozliuk

POWs in a hybrid war

How can Ukraine protect the seamen who were taken prisoner by Russia?

In the fifth year of Russia’s war against Ukraine, some 70 Ukrainians are languishing in prisons in occupied Crimea and in Russia itself, charged by the Kremlin with a slew of “crimes” they did not commit. Some of them have already been sentenced in “court:” some were given 20 years while others, for “less serious crimes,” were given a few years and have managed to return home to Ukraine at this point. The range of supposed crimes is strikingly imaginative in its variety: from illegally crossing the border to espionage and preparing terrorist acts. The Kremlin’s hostages include ordinary people who had never been active politically, filmmakers, activists, volunteers, and former soldiers. The “evidence” in many cases is posts in social nets that date from well before Russia’s occupation of Crimea. 

Three weeks ago however, an unprecedented incident took place. In international waters near the Kerch Strait, Russian boats carrying the Russian flag openly started by blocking, then shooting, and then hijacking three Ukrainian naval vessels that were sailing from Odesa to Mariupol. They also took 24 Ukrainian seamen captive, six of whom were seriously wounded (three lightly and three seriously).

The Azov Sea has been a source of tension ever since Crimea was occupied in February 2014. This tension entered an active phase with the opening of the Kerch Bridge last spring, when Russia began hampering the passage of civilian ships moving to and from Ukrainian ports on the Azov. Those with whom The Ukrainian Week spoke over the last few months complained that Russia was trying to make the Azov Sea its own.

In September, Ukraine’s National Security Council decided to increase its military presence in the Azov and two light armored cutters were moved to the port of Berdiansk over land. At the end of September, two more vessels sailed to the port through the Kerch Strait under Russian escort. The passage went without incident. On November 25, however, Russia decided to do things differently.

The treaty trap

“By blocking civilian vessels, Russia is in direct violation of its 2003 treaty with Ukraine [on cooperation in the use of the Azov Sea and Kerch Strait. – Ed.] and international marine law,” says Denis Rabomizo, president of the Ukrainian Maritime Bar Association. “And if vessels are allowed peaceful passage through the Kerch Strait and Azov Sea, even if Russia calls it internal, they can pass. Yes, there are some restrictions For instance, you cannot stop a ship without reason, monitor the sea floor with radar, trawl for fish and so on. But if you have to sail across the Sea to a port, you can do so. If it were allowed for this right of passage to be restricted, shipping would not be nearly as effective as it is.”

Rabomizo adds that the somewhat ambiguous Treaty guarantees both civilian and military vessels of both countries the right to freely use the Kerch Strait.  When Russia tries to block Ukrainian ships, it is in violation of its own treaty. At the same time, it’s an aggressor country that has been waging a hybrid war against Ukraine for nearly five years now, starting with the occupation of Crimea. And so, whether Moscow admits it or not, it’s an international armed conflict. Under these circumstances, the question arises: Can a peacetime treaty and peacetime legislation be applied to Ukraine’s captive seamen?

RELATED ARTICLE: Russia’s Azovian knot

“The international armed conflict with Russia has been acknowledged,” says Maksym Tymochko, a lawyer with the Ukrainian Helsinki Human Rights Union. “Moreover, it doesn’t depend on whether the participants agree about that or not. This is clearly written into Art. 3 of the Geneva Convention. Moreover, the reality of the situation has been recognized at the international level. In November 2017, the prosecutor of the International Criminal Court stated that directly in his conclusions. The Office of the Prosecutor noted that an international armed conflict in Crimea began no later than February 28, 2014. Moreover, when the Ukrainian Ministry of Foreign Affairs announces that the captive seamen are prisoners of war, Ukraine is confirming that this is such a conflict. We recognize it.”

Tymochko adds that if Ukraine acknowledges that there is an armed conflict, then it has to be prepared for Russia to open fire on its military. It has the right to do so based on international rules of conflict. Thus, Tymochko says, appealing to a peacetime treaty in this case is not right.

Recognition as POWs

Maksym Tymochko says that the Treaty on joint use of the Azov Sea and Kerch Strait signed between Ukraine and Russia guarantees the free passage of ships and Russia once let Ukrainian naval vessels through in September. “When Russia captured the crews of three ships on November 25, Ukraine immediately called them prisoners of war, acknowledging that this is an armed conflict and Russia is the aggressor,” Tymochko continues. “At the same time, we keep saying that in the midst of this conflict we should apply the standards of peacetime. Yes, Russia is in violation of the Treaty on the Azov Sea. But when there is a military clash, I think we need to look at the situation through the international rules of armed conflict.”

Indeed, recognizing the Ukrainian seamen as prisoners of war in theory places a series of additional requirements on Russia. Among others, this means how it behaves with the Ukrainians. Lawyers must be present, either those chosen by the prisoners themselves or those provided by Ukraine. There is also the right to a fair trial, as well as a right to respect the dignity and honor of servicemen. Critically, torture is prohibited. In this matter, Ukrainian officials and Ukrainian society have been unanimous. During the program Svoboda Slova [Freedom of Speech] on ICTV, President Poroshenko stated, “We need to clearly understand that they are not subject to a criminal Russian court. Since they were taken during an act of aggression, they are prisoners of war under the Geneva Convention.”

Treatment of POWs

Still, regardless of prohibitions and conditions, there is reason to assume that some of the Ukrainian seamen were subjected to pressure, as video recordings of some of the men talking about “Russia’s internal sea” suggest.

“In the videos that were published the very next day after the men were captured, we can see that one of them is reading a written text,” notes Tymochko. “One of their lawyers stated that this man was beaten while in custody. This is now the area of competency of the UN High Commissioner for Human Rights, as he deals with violations of the rights of prisoners of war.”

Moreover, international law prohibits suing prisoners of war simply for being involved in a conflict. And although the Ukrainian seamen did not use weapons, lawyers say that the incident can really be treated as an armed confrontation. However, Russia claims that the Ukrainians illegally crossed its border. Indeed, it has already charged them with this “violation” and all 24 are now being detained on this basis. However, UHHRU representatives say that such a court is a normal punishment for participating in a conflict. Put simply, the Ukrainian seamen are being sued for being in military vessels near the Kerch Strait. But international law states that prisoners of war may only be sue for war crimes.

The wounding of several of the seamen is a separate story. Helsinki Union lawyers say that, under the Geneva Convention, the state has to release any seriously injured POWs.

“This is done for humanitarian reasons,” Tymochko explains. “And this is an imperative rule [i.e., governing the rules of behavior. Ed.]. The state of origin of the prisoner of war can better treat its own wounded. Moreover, the point of taking them captive is not punishment. It’s about taking the servicemen out of active conflict. And obviously a seriously injured soldier cannot continue to fight. So Ukraine has to monitor the state the health of the wounded and demand that Russia do the same.”

For this precise purpose, the Ukrainian Ministry of Justice appealed to the European Court of Human Rights to issue a court order to Russia to report on the state of the POWs and their needs for treatment. Initially, the court restricted itself to a query asking Russia to provide certain information: under what circumstances the Ukrainians were detained, are they going to treat the wounded and how. Russia was supposed to respond by December 3, which it did not. On December 4, the Ukrainian Ombudsman for ECHR issues, Ivan Lishchyna, reported: Russia has been obligated to provide the imprisoned seamen all necessary medical assistance and treatment. The request for more detailed information about the seamen remains in effect as well.

Neverending negotiations

Meanwhile, the POWs were moved from Crimea to Moscow, to the Leforto remand facility. The injured seamen were sent to the Matroskaya Tishina[Sailor’s Repose] remand center’s infirmary. Lawyers for the Ukrainians have already reported complications. For instance, when this article went to press, the surname of the investigator was still not known. What’s more, the investigative department of the FSB was not accepting the applications of the lawyers to join the case and access to the remand center. At the same time, Nikolai Polozov, one of the defenders of the seamen, said that some 50 Russian lawyers had declared their wish to defend the Ukrainians. 

“We’re putting together a list of the lawyers who have expressed a desire to work on this case,” Polozov wrote on his Facebook page. “The candidates have been proposed by both the families of the imprisoned seamen and civic organizations. Some of these lawyers already sat in on the court hearings over preventive measures, some have approached us independently. Given the difficulty of the case, the number of defendants involved and the ‘toxicity’ of Ukrainian issues in Russia, candidates were entered into the list only on the basis of voluntary participation. And still, more than 50 individuals have already applied.”

Meanwhile, with the help of activists, including in Crimea and Russia, all of the several hundred thousand hryvnia that Ukrainians managed to collect within a day to assist the POWs was actually handed over to the seamen.

At this time, all 24 seamen are being detained until January 2019. Ukraine is now faced with the question, how to defend its citizens. Experience fighting for its political prisoners in Russia says it’s going to be very hard at best: in four years, no mechanism has been established to force Russia to release the Ukrainians it holds. There’s no easy recipe to the story of the naval POWs, either. Moreover, there has probably been no such incident in international practice before.

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“I know of no similar case in the international courts,” says Denis Rabomizo. “Because international armed conflicts supposedly exist and supposedly don’t exist. Mainly because the participating states don’t acknowledge it fully. And when it comes to international law on human rights, it is always applies—except in cases of armed conflict. That’s when international humanitarian law kicks in. As an exception to the rule.”

At the same time, he notes that a hybrid response can be found to defend the Ukrainian seamen. “I think that Ukraine needs to apply international maritime law to general issues in this case, and humanitarian law in the specific case of the seamen,” explains the UBMA lawyer. “That’s what will allow them to be recognized as POWs. But to get them released, we have to use international maritime law.”

UHHRU lawyers note as well: Ukraine should actively resort to the rules of the Geneva Convention and work in the international arena, including through the UN. “We need to actively document everything that happens with the seamen in prison,” says Tymochko. “Demand that Russia respect their status as POWs. This is already at the level of the UN and the upcoming vote on the Crimean resolution. We should work with other UN member countries as can now see a negative trend in that there are fewer countries prepared to support this resolution. The problem lies not only in those countries that will vote against it, but in those who will abstain. Only international pressure, sanctions and active effort on Ukraine’s part will get these men released. Right now, there’s no magic recipe for guaranteeing the release of the seamen. It’s a question of political expediency, which is why Ukraine must take advantage of everything it can.”

For now, Ukraine must understand one thing: as a participant in armed conflict, Russia could hold the Ukrainians until the end of the war. Theoretically, this is not in violation of the Geneva Convention. So the question of getting the men released, as usual, remains an exclusively political issue. And negotiations over that could last a very long time, as experience in the Donbas has show.

The seamen in Russian hands

On November 25, Russia attacked Ukrainian had turned back towards Odesa. Russian border patrol cutters hijacked two light armored cutters, the Berdiansk and the Nikopol, and a tug, the Yany Kapu. The Ukrainian vessels were fired on with intent to harm, then boarded and taken over by Russian special forces, and moved to occupied Kerch. All 24 Ukrainian seamen are now Russian prisoners of war, three of them seriously wounded. Moscow eventually accused the Ukrainians of “illegally crossing the border” and detained them until January 2019. After this, the POWs were moved to Moscow to the Leforto remand facility. The wounded seamen were sent to the infirmary of the “Matrosskaya tishina” remand center.

In response to this attack, Ukraine introduced martial law in 10 oblasts and the international community has condemned Russia’s latest act of aggression against Ukraine.

The Berdiansk

  1. Captain Roman Mokriak, lieutenant, 32, Kirovohrad Oblast

Prior to the war, Mokriak served on Ukraine’s only submarine. During the invasion of Crimea, he left the peninsula. After being captured he refused to answer any questions from the FSB or to “confess” on camera about crimes he had not committed.

  1. Yuriy Bezyazychniy, master seaman, 28, Odesa Oblast

Details unavailable.

  1. Denis Hrytsenko, captain second rank, 34, Mykolayiv

Details unavailable.

  1. Andriy Artemenko, master seaman, 24, Kirovohrad Oblast

According to reporters, Artemenko had just signed on for a second tour of duty with the Navy. He was wounded during the attack.

  1. Bohdan Holovash, master seaman, 22, Poltava Oblast

Details unavailable.

  1. Andriy Eider, seaman, 19, Odesa

The youngest of the seamen to be taken prisoner. Eider graduated from the Naval Academy in Odesa. He was wounded during the hijacking of the Berdiansk.

  1. Vasyl Soroka, 27, Odesa

SBU officer. SBU chief-of-staff Ihor Huskov told reporters that Soroka had carried out several military assignments in the war zone. Soroka was seriously wounded during the hijacking.

 

The Nikopol

  1. Captain Bohdan Nebylytsia, senior lieutenant, 24, Sumy Oblast

Nebylytsia was among the cadets at the Admiral Nakhimov Naval Academy in Sevastopol who refused to take an oath of allegiance to Russia in February 2014. While the Russian invaders lowered the Ukrainian flag and raised their own, he and other cadets sang the Ukrainian national anthem. He completed his studies at the Naval Institute of the Odesa National Maritime Academy. He was designated commander of the Nikopol in 2016.

  1. Serhiy Popov, captain lieutenant, 27, Donetsk Oblast

Details unavailable.

  1. Viacheslav Zinchenko, master seaman, 20, Chisinau, Moldova

Photo and details unavailable.

  1. Andriy Oprysko, master seaman, 47, Lviv Oblast

Details unavailable.

  1. Serhiy Tsybizov, seaman, 21, Khmelnytsk Oblast

One of the seamen interrogated by the FSB on camera. According to his father, Andriy Tsybizov, he was likely under psychological pressure.

  1. Vladislav Kostyshyn, 24, Cherkasy Oblast

Photo and details unavailable.

  1. Andriy Drach. Details unavailable

SBU chief-of-staff Ihor Huskov told reporters that Drach is employed by the SBU. Drach was among the cadets at the Admiral Nakhimov Naval Academy in Sevastopol who refused to take an oath of allegiance to Russia in February 2014. While the Russian invaders lowered the Ukrainian flag and raised their own, he and other cadets sang the Ukrainian national anthem. He was one of he seamen interrogated by the FSB on camera.

 

The Yany Kapu

  1. Captain Oleh Melnychuk, officer, 23, Cherkasy Oblast

During the “trial” in occupied Simferopol, he requested an interpreter from Russian into Ukrainian.

  1. Yevhen Semydotskiy, seaman, 20, Luhansk Oblast

According to reporters, Semydotskiy trained as a car mechanic but dreamed of being a seaman. He serves in the Navy under contract.

  1. Mykhailo Vlasiuk, master seaman, 34, Kyiv

Details unavailable.

  1. Viktor Bezpalchenko, master seaman, 32, Kherson Oblast

Photo and details unavailable.

  1. Volodymyr Tereshchenko, master seaman, 24, Dnipro

Details unavailable.

  1. Volodymyr Lisoviy, captain third rank, 34

One of the POWs whom the FSB interrogated on camera.

  1. Andriy Shevchenko, midshipman

Photo and details unavailable.

  1. Volodymyr Varemez, master seaman, 26

Details unavailable.

  1. Serhiy Chulyba, officer, 26, Kherson Oblast

Photo and details unavailable.

  1. Yuriy Budzylo, midshipman, 46

Details unavailable.

 

 

Translated by Lidia Wolanskyj

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