On legal status of Russian citizens participating in the conflict in Donbas

Presence of Russians in Donbas does not raise any doubt and is considered to be a proven fact. So an issue of defining legal status of citizens of the Russian Federation participating in combat activity in Ukraine arises.

This issue is important not so much from the point of view of Russian authorities sending or encouraging their citizens to take weapons and go and die abroad, but from a humanitarian viewpoint:

– what is a legal status of a Russian serviceman who came to Ukraine?

Overall, the procedure for use of Armed Forces of the Russian Federation beyond the borders of the native country is as follows:

Russian military doctrine envisages the right of the Russian Federation to use its army to provide for protection of its citizens beyond the Russian Federation in compliance with generally accepted principles and standards of international law and international treaties by the Russian Federation.

Use of armed forces and other troops in peacetime is realized by the decision of the President of the Russian Federation.

Do we have one? It looks like we don’t.

Russian Constitution envisages a Resolution of the Federation Council prior to the President’s decision, in compliance with Art. 102 of the Constitution of the Russian Federation.

On June 25, 2014 Russian parliament withdrew such resolution on Ukraine.

Is it possible we might have missed some article in a contract with a military serviceman, of there is another legislative instrument?

 

A typical Contract on military service does not contain a single word on any military actions beyond the limits of Russia without any legal grounds.

It is also worth mentioning that the Federal Law «On military obligations and national service» also reads about obligations to protect the motherland, but not any easy money for fights abroad.

 

There are no legal grounds for the Russian army presence, but anyway there are soldiers in Ukraine. What is the status of the soldiers who «got lost in the territory of Ukraine»?

There are two options:

– a person fights for money and this it is mercenarism;

– alternatively, a person fights on order or for the idea, then it is affiliation with illegal armed groups.

 

Criminal Code of the Russian Federation clarifies the situation as follows

Article 359 «Mercenarism»

A mercenary is a person acting with the aim to receive a material reward and not being a citizen of a state participating in an armed conflict or combat activity, not being a resident of this state and not being a person sent in to perform official duties.

Recruitment itself and participation in combat activity as a mercenary are both criminal offences.

1. Recruitment, training, financing or any other material support rendered to a mercenary as well as using him during an armed conflict or combat activity –

2. The same activities committed by a person abusing his official position or concerning a person under legal age (i.e. if a superior sends or organizes sending “volunteers” to Ukraine)

3. Participation of a mercenary in armed conflicts or combat activity –

Article 208. Organization of an illegal armed group or participation in one

1. Creation of an armed group (association, detachment, troop or other grouping), not envisaged by federal law, as well as controlling such a group or its financing –

2. Participation in an armed group not envisaged by federal law  as well as participation on the territory of a foreign state in an armed group, not envisaged by legislation of the given state, for the purposes contradicting interests of the Russian Federation,

Note. A person voluntarily terminating his participation in an illegal armed group and turning in weapons is freed from criminal prosecution provided his action contain no other elements of a crime.

We have to emphasize that unbadged participation in military actions serves as a component of crime according to Article 356 of the Criminal Code of the Russian Federation «Use of prohibited means and methods of conduct of war».

Russian mass-media also speak of Russian servicemen being unable to control their patriotic impulse and go and fight not by order during their service, but at the expense of vacation.

Legal practice gives answer to such form of activity too.

During his vacation a military serviceman preserves his status of a serviceman together with all restrictions involved. In order to receive a vacation, a serviceman is to hand in a report to his officer commanding’s name, indication the exact place of spending his vacation. In case the plan is to spend the vacation abroad, a serviceman is to receive the permission from the Ministry of Defence, his officer commanding and approval of the Federal Security Service of the Russian Federation (in compliance with the Order of the Ministry of Defence of the Russian Federation dated July 31, 2006, No.250 дсп).

Thus, it is impossible for a military serviceman to leave the territory of the Russian Federation without the permission of his commandment and the Federal Security Service. So, a Russian serviceman may spend his vacation in the territory of Ukraine in two ways only: either with consent of his commandment and the Federal Security Service or having deceived his commandment. In the first case we are dealing with aggression by definition, as worded in the Resolution of UN General Assembly No.3314 dated December 14, 1974:

Clause g article 3 – a state or someone on behalf of a state sending in armed gangs, groups, irregular forces or mercenaries performing acts of military violence against another state of such extensive character that it is equal to the abovestated acts, or its  significant participation in the abovementioned.

In the second case we are dealing with a military serviceman – criminal, who violated Military Charters, illegally crossed borders and committed punishable offences «participation in illegal armed groups» or «mercenarism».

 

What are the benefits of an official standing of a participant in military operations? Whatisitneededfor?

  1. It indemnifies against criminal liability, including post-factum. For instance, after change of authorities. It would be useful to remind that limitation period on capital offences (which «Mercenarism» and «Participation in illegal armed groups» are) amounts to 10 years.
  2. Status and allowances.
  3. Status and allowances to a wife an children in case of death of a military serviceman.

 

FEDERAL LAW ON THE STATUS OF SERVICEMEN

6. Servicemen and … veterans of combat actions in the territory of foreign states, … are entitled to additional social guarantees and compensations in compliance with federal laws and other statutes and regulations of the President of the Russian Federation and the Government the Russian Federation.

For instance:

FEDERAL LAW ON STATE SOCIAL AID

Article 6.1. The following persons are entitled to the right of receiving state social services in the form of a range of social facilities:

1) war disabled veterans;

3) veterans of combat operations;

7) members of the families of the fallen (deceased).

 

FEDERALLAWONVETERANS

List of veterans of combat operations includes:  servicemen including those transferred to the reserve (retired), enlisted and receiving military training, rank and file personnel and senior officers of law enforcement agencies and state security bodies, agents of the abovementioned bodies, …. participating in combat activities in discharge of their duties in these countries…;

3. Countries, cities, territories and periods of combat activities with citizens of the Russian Federation participating are listed in the Appendix to the present Federal Law.

Shall we look for Ukraine in this list?

 

Article 4. Veterans …of military operation

 

List of veterans of military operation (hereafter – war invalids) includes the following:

2) military servicemen who have become disabled as a result of  a wound, injury, contusion, mutilation or trauma received … during performance of military service duties  in the area of military operations during periods listed in the present Federal law;

Social support of veterans provided (Article13)

Articles 13, 14, 16. Measures of social support to invalids and was veterans

Pension

Residential space

50% off public utility charges

Special medical treatment and prosthetics

Vacation at convenient time

 

Article 24. Rendering funeral services

 

Burial of fallen (deceased) participants of the Great Patriotic War, veterans of military operation, war veterans, veterans of military service takes place in burial ground considering wishes of their relatives (for servicemen – with military honours).

Expenses connected with preparation of the body to transportation, delivery of the body to the place of burial, cremation, burial, making and mounting of a mortuary monument are covered from the funds of a federal executive body having authority in the defence sphere or other federal executive bodies involved with military and equal-status service.

FEDERAL LAW ON BURIALS AND FUNERAL BUSINESS reads the same

According to our intelligence data, total number of Russians fallen in the territory of Ukraine during the conflict amounts to more than 2000 people. The number of wounded is approximately four times as many.

Where do they hide the wounded?

They are being treated in following military medical institutions:

Military Medical Academy named after Kirov (Sankt-Petersburg);

Military Clinical Hospital of South Military Command (Rostov-na-Donu);

Military Garrison Hospital of the Military Unit No.52199 (Volgograd city);

District Military Clinical Hospital (Yeisk town),

and also in civil medical institutions of the abovementioned populated localities and also in other closed military settlements. The more remote they are the better.

 

What is a soldier to do if he is already in Ukraine?

 

  • To report on this fact to the command.
  • To report to the command (preferably in written form) on his refusal to obey further orders during his stay in the territory of Ukraine. In compliance with clause 2 of the article 42 of the Criminal Code of the Russian Federation «non-compliance with designedly illegal order or command excludes criminal liability».
  • Without further delay to make an attempt to leave the territory of Ukraine and retort to Military Attorney Department with the report on the fact of illegal border crossing by his subdivision and of his refusal to obey the designedly illegal orders of the command in foreign territory.
  • In case it is impossible, a soldier immediately after determination of a fact of his being in foreign territory must appear before the authorities of the Ministry of Internal Affairs of Ukraine, notifying of this fact, together with subsequent report to his command.