Shishimarin, 21, a member of the 4th Guards of Russia’s Kantemirovskaya Armored Division, is in Ukrainian custody. He is accused of violating “the laws and customs of war in connection with premeditated murder,” for which he could face up to 15 years in prison if found guilty, Ukraine’s Prosecutor General Iryna Venediktova said in a statement on Facebook on Wednesday.
A spokesman for Ukraine’s Prosecutor General’s Office said on Friday that the hearing in The Solomianskyi District Court in Kyiv was a “preparatory meeting”. Footage shared by Ukrainian media showed the handcuffed Russian soldier walking into the courtroom wearing a blue and gray hoodie and eyes downcast.
According to the Associated Press, the procedure took about 15 minutes. Shishimarin was advised of his rights and declined a jury trial. The indictment in his case will be read out on May 18.
Shishimarin is accused of killing an unarmed civilian who was pushing a bicycle on the side of the road in the village of Chupakhivka on February 28 and firing multiple shots from his Kalashnikov rifle, Venediktova said in a statement. Venediktova called on Twitter on Friday that Shishimarin, along with four other soldiers, fled the fighting in the Sumy region in a stolen car.
The wheels of justice have started to turn and this process will bring results. Today the first sergeant of the RF – a commander of an armored division – appears in court because of his actions. Serg.Shysimarin is accused of killing an unarmed civilian with an AK74 in the village of Chupachivka on February 28. 1/2
– Iryna Venediktova (@VenediktovaIV) May 13, 2022
The man was speaking on his phone and “one of the soldiers ordered the sergeant to kill the civilian lest he report him to the Ukrainian defenders,” the statement said. “The man died on the spot, just a few tens of meters from his home.”
What are war crimes and is Russia committing them in Ukraine?
The statement did not shed any light on how the Russian soldier ended up in Ukrainian custody. In a video posted to YouTube on March 19, which appears to show Shishimarin being interviewed by Ukrainian video blogger Volodymyr Zolkin, Shishimarin says he was captured in Ukraine when his column was surrounded as they tried to follow their wounded bring Russia back.
Shishimarin said in a video posted by Ukraine’s security service that he was ordered to shoot the man in Sumy. Even if that’s true, that doesn’t absolve him of responsibility.
“The fact that he received what he believes was an unlawful injunction is not a legal defense under international law,” said Dermot Groome, a Penn State law professor and former war crimes prosecutor who advises Venediktova’s office.
However, the fact that Shishimarin appears to be cooperating — and that he is young — could earn him a lighter sentence, Groome said.
Shishimarin will be represented by Ukraine court-appointed attorney Victor Ovsyanikov, who told the AP the case against his client is strong but the court has yet to decide what evidence to admit.
“It’s just work for me,” Ovsyanikov told the New York Times. “It is very important to ensure that my client’s human rights are protected, to show that we are a different country from where he is from.”
Given the world’s eyes on Ukraine and the guidance of senior international law experts to Ukrainian prosecutors, Ukraine is likely to play the trial and others to follow after the book, Robert Goldman, an expert on war crimes and human rights at American University’s Washington College of Law , The Post reported this week.
Prisoners of war have the right to a trial before an independent and impartial tribunal. Ukraine is also a party to the European Convention on Human Rights, which offers strong due process guarantees, Goldman said.
Ukraine has pressed ahead with investigations into war crimes, even though top Russian leaders, including President Vladimir Putin, are unlikely ever to be brought to justice. The US State Department announced in March that US intelligence agencies had seen concrete evidence of war crimes by Russian troops, and the Biden administration is supporting Ukraine’s efforts to investigate and prosecute alleged crimes.
Groome called Ukrainian prosecutors an “experienced, competent group” that continues to operate effectively despite the ongoing fighting.
Venediktova said her office had opened more than 11,000 war crimes-related cases since the start of the war. Prosecutors filed their first in absentia indictment in Ukrainian courts against 10 Russian military personnel accused of war crimes in Bucha, a Kyiv suburb where investigators uncovered evidence of torture and mutilation after Russian forces withdrew. Moscow denies the allegations.
Ukraine’s decision to try captured soldiers in the middle of a conflict for war crimes is unusual, human rights and legal experts say. But it has the benefit of giving prosecutors access to new evidence, including testimonies.
“The evidence in Ukraine is very fresh and is being collected very professionally from what I’ve seen,” Goldman said.
Prisoners of war cannot be prosecuted solely for their participation in armed conflicts. The Geneva Conventions, which set rules for war, require prisoners of war to be returned to their home countries as soon as possible after hostilities have ended. But it is lawful for Ukrainian prosecutors to try Shishimarin and other captured Russian soldiers for war crimes, which include premeditated killings of civilians, Goldman said.
“This is just the beginning in the long and complex process of bringing perpetrators to justice and restoring justice to victims,” Venediktova wrote on Twitter on Friday. “We will leave no stone unturned to document and investigate every crime committed against the people of Ukraine.”
The case is an important test of a rarely used Ukrainian law prohibiting violations of the rules of war, Groome said.
Some legal experts have raised concerns about videos in which Ukrainians question captured Russian soldiers, such as the one in which Zolkin interviews Shishimarin. These videos could violate the Third Geneva Convention, which states that detainees must be protected from “acts of violence or intimidation, as well as from insults and public curiosity.”
Now that Shishimarin has been charged with a war crime “in a properly constituted court,” he is a criminal defendant and may be photographed at trial, Groome said.
UN Human Rights Council votes to deepen investigation into war crimes in Ukraine
In addition to the Ukrainian investigation, the International Criminal Court and the United Nations are also investigating alleged abuses during the war. European courts offer another avenue for criminal prosecution.
Shishimarin’s trial could deter Russian forces from committing war crimes, Groome said.
“It sends a clear message to other soldiers at various levels that they really need to think twice about committing crimes,” he said, “including Putin himself.”