On June 10, 2022, two British nationals were sentenced to death by firing squad by a court in Russian-controlled east Ukraine. The death sentence comes after Aiden Aslin and Shaun Pinner were found guilty of “terrorism.” Both have one month to appeal. British Foreign Secretary Liz Truss described the trial as “sham judgment with absolutely no legitimacy.” As combatants and as prisoners of war (PoWs), they should not be prosecuted for their participation in the war, unless for international crimes, such as crimes against humanity, war crimes, genocide.
A view of damaged buildings and vehicles after shelling in the Ukrainian city of Mariupol under the ... [+]
Aiden Aslin and Shaun Pinner were taken prisoner in Mariupol in April 2022, handed over to the Donetsk People's Republic (DPR) to face, what critics deem, a sham trial. DPR is the unrecognized republic held by Russian-backed rebels. Aiden Aslin and Shaun Pinner were sentenced to death by the DPR supreme court, having found them guilty of “mercenary activities and committing actions aimed at seizing power and overthrowing the constitutional order of the DPR.” Concerns have been raised in relation to handling of the cases, both in relation to the rights under the Geneva Conventions, and in relation to the right to a fair trial.
In order to proceed with the trials, Russia made a distinction in the status recognition between them and Ukrainians captured by the Russians. Ukrainian soldiers, when captured, are considered as PoWs. British nationals, as in the case of Aiden Aslin and Shaun Pinner, as considered as mercenaries. This distinction, based on their place of birth, is erroneous, as it does not follow the definition of a mercenary under the Geneva Conventions. Members of the armed forces of a party to the conflict, event if not nationals of that party, are to be considered as combatant, as long as they do not meet the definition of a mercenary in Article 47 of Additional Protocol I.
According to his family, Shaun Pinner relocated to Ukraine in 2018 and joined the military there, having previously served in the British military. He is married to a Ukrainian. Aiden Aslin joined the country's marines in 2018. He is said to have gained Ukrainian citizenship after three years of military service. He has a Ukrainian fiancée. Aiden Aslin and Shaun Pinner served as soldiers in the Ukrainian military forces. As both, Aiden Aslin and Shaun Pinner, were “long-serving” members of the Ukrainian military, they should be considered as combatants and enjoy the rights that flow from the status.
Among others, under the Geneva Conventions, combatants enjoy immunity from criminal prosecution for conduct that inherently forms part of their participation in hostilities (the privilege of belligerency). The privilege does not apply to international crimes. As such, combatants can be prosecuted for acts committed in the course of their participation in hostilities if such acts constitute war crimes, crimes against humanity or genocide. However, the two Britons have not been prosecuted for such international crimes despite some Russian reports suggesting that they were involved in such crimes. Furthermore, pursuant to Additional Protocol I, Article 47(1), mercenaries do not qualify as combatants, and as such, cannot benefit from the privilege of belligerency. This is the argument relied upon in the case.
In any event, Aiden Aslin and Shaun Pinner should benefit from the right to a fair trial, including to be tried by an independent and impartial court. There are concerns whether international standards of the right to a fair trial have been followed in handling the cases. Over the years, the Office of the United Nations High Commissioner for Human Rights raised several concerns about the operation of courts in the DPR. It is considered that the situation only deteriorated after February 2022. Furthermore, the trials were not public and only a small part was made available via a pro-Kremlin media outlet. As such, it is very unlikely Aiden Aslin and Shaun Pinner were afforded a fair trial. Furthermore, handing both to the DPR to be prosecuted there, Russia may have committed a war crime.
The U.K. Government condemned the treatment of the British nationals serving in the Ukrainian army. Among others, Foreign Secretary Liz Truss indicated that both were PoWs and she would continue to do everything she could to support them.
