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Why Nadiya Savchenko must be freed: Russia has committed a war crime against her and Ukraine

Nadiya Savchenko from her prison cell on the 25 January 2015 court hearing
Why Nadiya Savchenko must be freed: Russia has committed a war crime against her and Ukraine
Article by: Jeffrey Stephaniuk
Edited by: Alya Shandra

My expert conclusions as reflected in this report are simply designed to preserve the integrity of the law and assist the respect for human rights and dignity.
-Michael A. Newton

Michael A. Newton, a lawyer in international law, has written an affidavit showing how Nadiya Savchenko’s defence can be established through two concepts: 1. the laws and customs of warfare; 2. compliance with recognized human rights norms.

The laws and customs of warfare

“there is no basis in the laws and customs of warfare to prosecute her without the consent of her home state. In fact, prosecution of Ms. Savchenko in Russian domestic courts represents an affirmative violation of her human rights as well as a violation of her rights to a fair trial as established in the laws of warfare and in applicable human rights norms.”

The hostile occupation of sovereign Ukrainian territory has meant that the legitimate government in Kyiv is unable to exercise practical control over its internationally recognized jurisdiction. Newton explains that “the assumption of authority over the occupied territory implicitly means that the existing institutions of society have been swept aside.” Based on what he calls definable laws of occupation developed in other instances around the world, such as in the case of Israel, Russian officials did not have “lawful basis for asserting jurisdiction” over Ukraine. Russian officials repeatedly and vehemently denied that they were responsible for the actions of Ukrainian separatists and thus had not rights under the law of occupation unless they were in what international courts have termed overall control.” By definition, overall control means “overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity.” (emphasis in the original)

By Russia’s own official denials of active involvement in Ukraine,

“Russia failed to meet the requirements of organizing, coordinating or helping in planning military activities. In sum, the conflict between the Ukrainian government and the pro-Russian separatists is an internal conflict, not an international one.”

To state the problem another way,

“Russian domestic courts have no basis for jurisdiction over Ukrainian public officials in the absence of acknowledging that the Russian military was in control of operations on Ukrainian soil and invoking the law of occupation.”

During the prosecution of the Anti-Terrorist Operation, the Ukrainian government has deliberately employed such language as terrorism in order to avoid the international implications of declaring war against Russia. Take, for example, the great care and pains undertaken to prohibit soldiers from firing artillery across the international border into Russia when bombardments had been initiated from within Russia itself, and were proving destructive of Ukrainian lives. “The only exception in theory would have been if the law enforcement officials in Ukraine consented to the transfer of their lawful authority to punish acts committed on Ukrainian territory to another sovereign criminal justice system. That did not happen in the Savchenko case, and the crimes alleged do not provide an independent basis of jurisdiction under international law.”

Nothing the terrorists claimed to do or to be could ever usurp the authority of Ukrainian law and Ukrainian officials: “As a matter of international law neither the Ukrainian separatists nor Russian officials had a lawful basis to create criminal jurisdiction to fill a legal void in Ukrainian territory.” Even if they succeeded at deceiving themselves and others that they were now the new legitimate authority within that Ukrainian territory they claimed arbitrarily and militarily for themselves, or that somehow Ukraine never existed as a country in the first place, there is a section in the 1949 Geneva Conventions that Newton insists applies to Russia and the Russian-sponsored terrorists: “Because the foreign power has displaced the normal domestic offices, the cornerstone of the law of occupation is the broad obligation that the foreign power must ‘take all the measures in his power to restore, and ensure, as far as possible, public order and safety.’” (Emphasis in the original) Since Ukrainian law extended jurisdiction also to that part of Ukraine and since those local laws were in fact reasonable and functioning properly before the acts of terrorism began, “there was no lawful basis for Russia to exercise jurisdiction over the public acts of a Ukrainian official committed on Ukrainian soil.”

Newton places Savchenko under the further protection of the Geneva Convention by citing Article 66 of the Fourth Convention which “sought to specify the acceptable scope of military courts created under the law of occupation.” In other words, based on Russian denials of internationally recognizable authority in occupied lands, “Ms. Savchenko could not lawfully have been subject to the authority of Russian domestic courts sitting in Moscow.” Military courts are not civilian courts, and while Newton gives an example of Appeals courts being located outside the occupied territories for the purpose of overseeing military courts, such as in Israel, which by extension could theoretically happen in Russia, none of what happened to Savchenko followed procedures of “properly constituted, non-political military courts, on the condition that the said courts sit in the occupied country… This wording definitely excludes all special tribunals.” (Emphasis mine)

Michael A. Newton emphasizes the concept of military courts established by “normal military authorities” and “normal processes,” both of which are absent in the illegal activities surrounding the Savchenko case, based on persistent Russian denials of being a constant or even stabilizing factor in the war, and if in fact Ukraine is a sovereign country:

“The laws of war cannot be stretched to provide a lawful basis for the abduction of public officials from the context of an internal armed conflict (or what the press would term an insurgency) to create lawful criminal jurisdiction in the civilian courts of another nation….The laws and customs of war specifically require that the sovereign prerogatives of nations be balanced against the human rights of defendants facing punishment by duly constituted judicial authorities.”

The legitimacy and international recognition of Ukrainian civil law cannot be ignored or dismissed, writes Newton, and another country cannot charge, try, and convict Savchenko for alleged actions that were not illegal in her lawful country: “Ukrainian officials have primary jurisdictional authority over Ms. Savchenko for any acts alleged to have violated the applicable criminal law while she was on Ukrainian soil and acting in her official capacity.” Nor can there be punishment for something that was not clearly known to her to be a potential war crime, explains Newton, defining the principle of nulla poena sine lege which “requires that acts that may be punished as war crimes be clearly defined such that the defendant is on notice.” Savchenko “was not within the lawful control of the Moscow civilian court at the time of the alleged offenses, but within the scope of authority of Ukrainian officials.”

Further, Russian law and its jurisdiction and procedure is itself understood in the same manner:

“As stated in the Russian Criminal Procedural Code, if Russia wants to carry out criminal charges against the citizen of a foreign country who was not on Russian territory at the time of his or her conduct, ‘the court, the public prosecutor or the investigator shall direct an inquiry about the performance of such to the competent bodies or officials of the foreign state in conformity with an international treaty of the Russian Federation or with an international agreement, or on the principle of reciprocity.’”

Compliance with recognized human rights norms

Newton concludes his expert affidavit on the importance of the Savchenko case: the treatment of Nadiya Savchenko is an example of the country of Russia violating accepted international laws and customs of warfare. In other words, their behaviour towards her is a war crime, because Savchenko has been denied “all necessary rights and means of defense before and during the trial.” He explains further that “Russia failed to provide all necessary rights and means of defense by:

  1. failing to interview Savchenko in the presence of her counsel;
  2. threatening Savchenko’s family members and imposing sanctions against Russian lawyers;
  3. failing to hold court hearings with personal presence of Savchenko for up to four times;
  4. using testimony made under physical and psychological pressure as the primary source of justification for the criminal charges in violation of her basic human rights;
  5. depriving Savchenko’s rights to diplomatic protection.

Savchenko’s abduction to Russia violates recognized human rights norms. With specific reference and application of human rights norms to Nadiya Savchenko, Newton writes the following:

“When she was captured by separatists on the territory of the Ukraine she was in uniform and in her official capacity. The separatists had no lawful basis to prosecute her in their own right, and thus the abduction and transfer to another sovereign nation amounted to an unlawful kidnapping in violation of her fundamental human rights.”

Therefore, both against the independent and sovereign country of Ukraine, and against the human rights dignity of Nadiya Savchenko, “Russia has committed war crimes.”

Mr.Newton’s is the author of Proportionality in International Law (2014, Oxford University Press). The themes of his book correspond to the central legal issues of the Nadiya Savchenko case, namely, “the overlap between the fields of human rights law and the laws and customs of warfare as they are reflected in the modern understanding of the law applicable to armed conflicts within between insurgents and government authorities.”Newton, who is the senior editor for the publication, Terrorism International Case Law Reporter, served for more than 21 years on active duty in the US military, was the military expert on the task force that developed the US Policy Towards the International Criminal Court. He is an expert in International Humanitarian Law, and has been involved in agreements on the terms of criminal liability “for each of the many crimes of genocide, crimes against humanity, and war crimes” at the international level of the 1998 Rome Statute negotiations. He explains his authority to speak on the Savchenko imprisonment by describing his familiarity with “the details of the requisite conduct, consequences, and circumstantial elements required to prove violations of the substantive international law.” Michael A. Newton developed on expertise on the adjudication of extremely serious accusations of war crimes when he served in the Office of the US Ambassador-at-Large for War Crimes in both the Clinton and George W. Bush Administrations.
[hr]The affidavit of Mr.Newton was been produced on the request of the Free Russia Foundation. The Free Russia Foundation is a nonprofit, nonpartisan, nongovernmental US-based organization, led by Russians abroad that seeks to be a voice for those who can’t speak under the repression of the current Russian leadership, seeks to represent and coordinate the Russia diaspora, paying special attention to those who have recently left Russia due to the considerable deterioration of the political and economic situation.


Edited by: Alya Shandra
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