Shishimarin, 21, a member of Russia’s 4th Guards Kantemirovskaya tank division, is in Ukrainian custody. He is charged with violating “the laws and customs of war combined with premeditated murder,” for which he could face up to 15 years in prison if found guilty, Iryna Venediktova, Ukraine’s prosecutor general, said in a statement on Facebook on Wednesday.
A spokesperson for Ukraine’s prosecutor general’s office said Friday that the hearing in Kyiv’s Solomianskyi district court was a “preparatory meeting.” Footage shared by Ukrainian media showed the handcuffed Russian soldier entering the courtroom wearing a blue-and-gray hoodie, his eyes downcast.
The proceedings lasted about 15 minutes, according to the Associated Press. Shishimarin was told his rights and declined a jury trial. The indictment in his case will be read May 18.
Shishimarin is accused of killing an unarmed civilian who was pushing a bicycle on the side of a road in the village of Chupakhivka, firing several rounds from his Kalashnikov rifle on Feb. 28, Venediktova’s statement said. Venediktova said on Twitter on Friday that Shishimarin, along with four other soldiers, had been fleeing the fighting in the Sumy region in a stolen car.
Wheels of justice started turning and this process will yield results. Today the first RF sergeant–a commander of a Tank Div, appears before the court for his action. Serg.Shysimarin is accused of killed an unarmed civilian with an AK74 in the village of Chupakhivka on Feb28. 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 so that he would not report them to Ukrainian defenders,” the statement said. “The man died on the spot just a few dozen meters from his home.”
What are war crimes, and is Russia committing them in Ukraine?
The statement did not shed light on how the Russian soldier ended up in Ukrainian custody. In a video posted to YouTube on March 19 that 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 move their wounded back to Russia.
Shishimarin said in a video posted by the Ukrainian security service that he had been ordered to shoot the man in Sumy. Even if true, that does not absolve him of responsibility.
“The fact that he received what he knew to be an illegal order is not a legal defense under international law,” said Dermot Groome, a law professor at Penn State and former war crimes prosecutor who has been advising Venediktova’s office.
The fact that Shishimarin appears to be cooperating — and that he is young — could get him a lighter sentence, though, Groome said.
Shishimarin is being represented by Ukrainian court-appointed attorney Victor Ovsyanikov, who told the AP that the case against his client is strong but that the court still had to decide what evidence to allow.
“For me it is just work,” Ovsyanikov told the New York Times. “It is very important to make sure my client’s human rights are protected, to show that we are a country different to the one he is from.”
With the eyes of the world on Ukraine, and top international law experts advising Ukrainian prosecutors, Ukraine is likely to play the trial and others that follow by the book, Robert Goldman, a war crimes and human rights expert at American University’s Washington College of Law , told The Post this week.
Prisoners of war have the right to a trial by an independent and impartial court. Ukraine is also party to the European Convention on Human Rights, which provides strong due-process guarantees, Goldman said.
Ukraine has moved ahead with war crimes investigations even as it remains unlikely that top Russian leaders, including President Vladimir Putin, will ever stand trial. 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 the Ukrainian prosecutors an “experienced, competent group” that has continued to operate effectively, despite the ongoing fighting.
Venediktova said her office has opened more than 11,000 cases linked to war crimes since the war began. Prosecutors filed their first charges, in absentia, in Ukrainian courts against 10 Russian service members they accused of war crimes in Bucha, a Kyiv suburb where investigators uncovered evidence of torture and mutilation after Russian forces retired. Moscow has dismissed the charges.
Ukraine’s decision to place captured soldiers on trial for war crimes in the middle of a conflict is uncommon, human rights and legal experts say. But it has the advantage of giving prosecutors access to fresh evidence, including eyewitness testimonies.
“The evidence is very fresh in Ukraine, and it’s being gathered very professionally, from what I have seen,” Goldman said.
Prisoners of war cannot be prosecuted simply for taking part in armed conflict. The Geneva Conventions, which lay out rules governing war, call for prisoners of war to be repatriated to their home countries as soon as possible after hostilities end. But it is lawful for Ukrainian prosecutors to try Shishimarin and other captured Russian soldiers for war crimes, which include the deliberate killing of civilians, Goldman said.
“This is the just a beginning in the long and complex process of bringing perpetrators before the courts 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 people of Ukraine.”
The case will be an important test of a rarely used Ukrainian law that prohibits violations of the rules of war, Groome said.
Some legal experts have raised concerns about videos of Ukrainians questioning captured Russian soldiers, such as the one in which Zolkin interviews Shishimarin. Those videos could violate the Third Geneva Convention, which says prisoners must be protected against “acts of violence or intimidation and against insults and public curiosity.”
Now that Shishimarin has been accused of a war crime “before a properly constituted court,” he is a criminal defendant and can be photographed as part of court proceedings, Groome said.
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In addition to the Ukrainian investigations, the International Criminal Court and United Nations are also examining alleged abuses during the war. European courts provide another avenue for prosecution.
Shishimarin’s trial could deter Russian forces from committing war crimes, Groome said.
“It sends a clear message to other soldiers at different levels that they really need to think twice if they commit crimes,” he said, “including Putin himself.”