The trappings said courtroom — a lawyer, a defendant, a judge, charges being read. Everyone’s behavior said otherwise.
As Ukrainian serviceman Bohdan Pantyushenko heard he was being accused of trumped-up terrorism charges that could carry the death penalty, the judge chattered away on her cell phone, discussing an upcoming manicure. Pantyushenko’s appointed attorney bluntly told his client he was not there to defend him.
“I realized what absolute trash it all was,” Pantyushenko said, recalling his horrific and at times farcical experience as a prisoner in the self-declared “Donetsk People’s Republic” (DNR), which has served as a veneer for the Russian occupation in east Ukraine since 2014.
Pantyushenko, a tank driver, was captured in January 2015 when the Ukrainian army was battling Russian and Russian-backed forces near Donetsk airport. For nearly five years, he was bounced around basements and detention centers before landing in a pseudo courtroom in 2019.
There, he was swiftly charged and sentenced to 18 years in prison. Yet only two months later, on December 30, 2019, he got sent home as part of Ukraine’s last big prisoner exchange before Russia’s full-scale invasion this February.
Now, similar scenarios of capture, sentence and exchange are playing out in the same region, but with a larger, international pool of prisoners. Trials, both real and Potemkin, are becoming a critical means for Russia and Ukraine to seek to influence the course of the war through the court of public opinion.
The same terrorism charges levied against Pantyushenko have been brought against at least three foreigners under the same non-recognized DNR legal system.
Britons Aiden Aslin and Shaun Pinner and Moroccan Brahim Saadoun, all members of the Ukrainian armed forces, were sentenced to death on June 9 in a short show trial. Two more British men and two Americans are known to also be held in the DNR and the former have allegedly been charged under the same statute.
Meanwhile, Ukraine has swiftly sentenced three Russian soldiers for war crimes, and begun several more trials — albeit in a far different (and legitimate) setting.
Many of those sentenced on both sides are likely to be exchanged in a highly politicized and opaque process, as Ukraine seeks to legally prove Russia’s guilt for the invasion and bring its citizens home, and Russia pushes its propaganda on Ukraine’s supposed “Nazification” and tries to force the world to legitimize authorities in the Ukrainian territories it has occupied since 2014.
The result is a potential undermining of rule of law, even as Ukraine strives to comply with international humanitarian law and prosecute Russia for its invasion and war crimes in national and international courts.
“There are so many Ukrainian war prisoners held by Russia,” said Tetiana Katrychenko, coordinator of the Media Initiative for Human Rights, which tracks Ukrainian prisoners in Russian-occupied territories. “And so Ukraine is trying to investigate specific instances of war crimes. But it’s a question [of] whether those who are sentenced will actually serve out their sentences. From the point of view of the U.N., this is a question of principle. But from Ukraine’s point of view, it also wants to get its citizens back.”
The exchange fund
Since Russia annexed Crimea and fomented a war in east Ukraine in 2014, thousands of combatants and civilians have been detained, sentenced on conflict-related charges and exchanged.
A few cases have gained international resonance — like Nadia Savchenko, a Ukrainian pilot detained in east Ukraine, or Oleh Sentsov from Crimea, who was sentenced for “terrorism” in Russia in a trial process universally condemned as unfair.
However, many detainees, like Pantyushenko, languished for years in prisons in occupied east Ukraine, outside even the framework of Russian law. Release of these detainees fell under the now-defunct Minsk agreements, which were intended to end the conflict in east Ukraine.
Each side accused the other of creating an “exchange fund” — essentially taking prisoners solely for the purpose of exchanging them for other prisoners. Pantyushenko and other Ukrainian servicemen were held as hostages, unrecognized as prisoners of war with the associated protections of the Geneva Conventions, because before February 24, the conflict in east Ukraine was not recognized by any of the parties as a war.
At the beginning of 2022, the Ukrainian security service’s list of prisoners still held in east Ukraine for exchange comprised 301 people, according to Katrychenko.
All that changed after Russia’s full-scale invasion on February 24. Katrychenko estimates Russia is now holding up to 8,000 military and civilian prisoners taken in Ukraine, including 2,500 servicemen and women captured in Azovstal, Ukraine’s final holdout as Russia closed in on the city of Mariupol. Hundreds of the Azovstal detainees are now registered as prisoners of war.
Many of the civilians taken from newly occupied territories were captured via so-called filtration camps, which were at times the only route for civilians to flee from occupied and devastated cities like Mariupol. The overall number of prisoners includes at least eight foreign citizens.
There have been 15 exchanges since the invasion began, the largest of which came on June 29 and featured 144 combatants on each side, including 95 from Azovstal.
Ukraine, which holds far fewer conflict-related prisoners, accuses Russia of once again detaining people for its “exchange fund,” in contempt of international humanitarian law, under which the detention — and exchange — of civilians is a war crime.
The Geneva Conventions also exempt prisoners of war — combatants — from being tried for taking part in the war; they can only be tried for specific war crimes and should be held in reasonable conditions.
Representatives of Russia and its proxies in east Ukraine have called for captured Azovstal combatants to be tried in a mass war crimes tribunal. When putting the three foreign citizens through a show trial for “terrorism,” they evaded obligations under the Geneva Conventions by claiming they are mercenaries.
“It’s obvious these charges are political and can’t be applied to servicemen and prisoners of war, whether or not they are citizens of Ukraine,” said Katrychenko.
The mercenary claim is unfounded, said Damien Magrou, a lawyer and spokesperson for the International Legion for the Defence of Ukraine, which includes combatants from 55 countries who have signed contracts with the Ukrainian army and get the same salaries as their Ukrainian counterparts.
The Geneva Conventions define a mercenary as being “motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants.” They further state that mercenaries are “not a member of the armed forces of a Party to the conflict.”
Pinner, Aslin and Saadoun — the three captured foreign fighters — lived in Ukraine and joined the Ukrainian armed forces on contracts prior to the war.
“The legal reality is very clear, and the fact that the Russians are completely ignoring international law should not surprise anyone because they’ve been disregarding the entire body of humanitarian law ever since the war started,” said Magrou.
The Russian lawyers who say they represented Pinner, Aslin and Saadoun in the DNR called the three men mercenaries in an interview with Russian media, while not disputing that they had contracts with the Ukrainian army.
The label bolsters the Russian propaganda narrative that this is a war waged by NATO and the U.S. against Russia — stories about Western mercenaries have been a staple since 2014 in Russian and DNR media. In fact, foreign fighters have been documented on both sides of the conflict.
The United Nations High Commissioner for Human Rights (OHCHR) in Ukraine has had no access to prisoners or trial hearings held in Russia or in Russian-occupied territories in Ukraine since February 24, said Matilda Bogner, the U.N.’s head of mission. Even before, access was strictly limited. Ukraine, conversely, has long offered full access.
Since 2014, the U.N.’s monitoring mission has been documenting human rights violations in conflict-related criminal cases in Ukraine, including the occupied territories in eastern Ukraine and Crimea.
A 2020 U.N. report detailed numerous cases of torture and intimidation in both the DNR and the “Luhansk People’s Republic,” another self-declared, unrecognized Russian-held region in east Ukraine. The death penalty’s existence in the “DNR criminal code” serves as additional intimidation, the report noted.
Released combatants and civilians captured after February in Russian-held areas of Ukraine have also described their torture and ill-treatment.
These past and present cases, combined with the fact that confessions from the three captured foreign fighters were published in advance and the speed with which the men were sentenced are all causes for alarm, said Bogner, the U.N. official.
“Our concern is that it was not a fair trial process,” she said. “In these circumstances, holding a trial without fair trial guarantees means that the whole process may be a war crime.”
Russia has employed such public confessions and show trials in occupied Ukrainian territory since 2014. Many detainees are forced to “confess” on camera to being Ukrainian spies and saboteurs, to attacking defenseless Russian-speaking civilians in east Ukraine or to being misled about “Nazi Ukraine.”
Public confessions negate the presumption of innocence and raise concerns of coercion, said Bogner. They are banned under the Geneva Conventions, which stipulate that war prisoners should be protected from intimidation, humiliation or being the object of public curiosity.
Ukraine has also published confessions from Russian prisoners of war, and held press conferences with their participation. One Ukrainian human rights organization has argued that the actions are justified and in the public interest.
Pantyushenko’s five years of detention in the DNR included beatings and mock executions, as well as almost a year when he had no contact with his family. His trial process in 2019 was closed, and there was no opportunity for him and two other servicemen to defend themselves before the “prosecutors.”
“They weren’t interested,” he said. “They just needed to twist our words and take them out of context so they could sentence us under the statute for terrorism, whatever we said.”
He and other prisoners were interviewed by Russian propagandists, and some were forced to give confessions or learn texts to repeat at press conferences.
“When they called you in to talk to the press and it’s some woman with a microphone and a camera crew, that’s one thing, but when they bring you to the interrogation room and you see the security service and a load of army colonels, and they set up a microphone and start asking you questions, then that’s frightening,” he said. “You know that if you don’t say what they want then anything can happen to you. So you say what you think they need.”
He himself gave one interview, which he describes as “not quite shameful,” to captors he knew had killed several other prisoners.
For families of detainees, such video “confessions” are sometimes the only evidence that their relatives are still alive.
Recognizing the unrecognizable
Handing over prisoner cases to the proxy DNR has a benefit for Russia: Letting it pretend its hands are clean in local violations of international humanitarian law.
It also allows prisoners to face the death penalty, which has been under moratorium in Russia since 1996 (although there are regular calls to reinstate it).
“It wouldn’t have been possible to pass down the judgment of the death penalty against these foreigners if they had been on Russian territory, and so very conveniently they found themselves on the occupied territories,” said Magrou, the spokesman for foreign combatants in the international legion.
The “DNR criminal code” is based on outdated Soviet legislation that includes capital punishment. Since 2016, at least two death sentences have been handed down under it, according to the U.N. human rights mission, although it’s not clear if they were carried out.
In what is clearly an attempt to up the ante, the DNR on July 8 published on an official website that it was repealing a moratorium on capital punishment — although it’s now been a month since the three men were sentenced to death and it was the first time human rights monitors had heard of such a moratorium.
Earlier, in 2014, Russian and Russian-controlled forces also introduced field courts and executions in Ukrainian territory they controlled. Since then, at least three people were “sentenced” and killed using a Stalin-era decree.
But the key reason for holding conflict-related trials in Donetsk, especially of foreign citizens, is to force the world to accept the Russian proxy “republics,” said Katrychenko, the human rights worker tracking Ukrainian prisoners in Russian-occupied territories.
“It was important,” she said, that the two so-called republics “spread the information that they exist as an entity and can pass down sentences. Through these sentences, they invented a reason for even the [U.S.] secretary of state to talk about them.”
These pseudo-republics — recognized only by Russian ally Syria — ultimately became a major part of Russia’s specious pretext for invading Ukraine.
Before launching its assault, the Kremlin formally recognized the DNR and LNR in east Ukraine, even though it had already been controlling them for years. Russia then baselessly claimed it had to invade Ukraine because Ukraine was committing a “genocide” of Russian speakers there.
Now, if Ukraine and others treat these proxy entities as interlocutors in prisoner releases or exchange talks, the Kremlin can use the fact to further legitimize its fraudulent claims, in the hopes of eventually redrawing Ukraine’s borders.
Of course, in reality, all negotiations go through Moscow.
“Internationally these entities are nothing,” said Magrou. “They only exist through being a proxy for the Russian Federation.”
In June, the European Court of Human Rights ordered Russia to ensure the death penalty was not carried out for Pinner, Aslin and Saadoun, and to guarantee the foreign fighters were held in appropriate conditions. Russia, which recently adopted legislation removing it from the court’s reach, said it was not bound by the rulings.
A downward legal spiral
On the other side, Ukraine’s rapid sentencing of Russian soldiers for war crimes — and potential use of these cases for prisoner exchanges — have also raised concern among human rights monitors, who fear it could undermine legal attempts to hold Russia accountable for its well-documented crimes in Ukraine.
A new draft amendment to Ukraine’s criminal code would permit the exchange of charged or sentenced prisoners. Yet those prosecuted under war crimes statutes could still be prosecuted in absentia, it stipulates.
So far, three Russian servicemen have been convicted for killing civilians in Ukraine. In the first case, a confession by the defendant was also published in advance of the ruling.
“Our position is that it would not be appropriate to exchange someone who is either charged with or convicted of a war crime, because by exchanging them you are basically giving them a pardon,” said Bogner, the U.N. official.
But ultimately, that might be what happens, with sentences — however legally justified on one side, and manipulated on the other — being used to push through further prisoner exchanges.
That’s how Pantyushenko felt, after experiencing almost five years held without charge before being rushed through a show trial and serving only weeks of his sentence.
“I realized that some tactics changed on the Russian side, and they just formed a methodology and a procedure according to which they take prisoners, do whatever with them, it all ends with the court and after the court, they hold an exchange,” he said. “It’s like they’re playing a game of rule of law.”
Now a free man again, Pantyushenko, a programmer by profession, has not finished with the subject of prisoners. Since the invasion started, he has turned his attention to informing Russians about Russian soldiers taken prisoner or killed in Ukraine.
By publishing open-source photographs and videos online, he hopes Russians who can’t get information from their own government about military losses in Ukraine will not only find out about the fates of family members, but might be persuaded to oppose the war.
“We realized that in Russia no one knows what’s happening here,” he said. “Mothers and wives don’t know where their men are. So we decided to target content to show them what’s happening in Ukraine, and to their relatives. To get through to them that way.”