February 5, 2015

Geneva v. Moscow


Citing international documents, conventions or treaties when dealing with Russia is an exercise in futility. A more meaningful task would be locating a single international convention or treaty that Russia and/or its predecessor the USSR have not violated in large part or ignored entirely. Conventions and treaties nonetheless remain international norms of a civilized international community that must be taken into consideration when dealing with Russia. Russia’s failure to comply, often arrogantly, should be perceived as an unwillingness on the part of Russia to be a part of that civilized international community with consequences. Thus, Russia must be considered a pariah and a global danger much more significant because of its size than other states like Syria, Iran, North Korea or terrorist formations such as ISIS, al-Qaeda or the Taliban.

The case of the Ukrainian pilot and paratrooper held in Russian captivity is a glaring example of Russia’s arrogance and refusal to play by the rules. Lt. Nadiya Savchenko was captured by Russia’s mercenaries on Ukrainian territory and transferred to their Russian lords for prosecution or persecution. It was at best a prisoner of war capture and at worst a kidnapping. In any event, her detention and treatment subsequently are interdicted by the Geneva Conventions of 1949 or international criminal norms.

Lt. Savchenko has been subjected to interrogation without counsel, a month-long psychiatric evaluation and pretrial proceedings in absentia. She has been charged under the Russian Criminal Code. Geneva’s Third Convention is quite clear that a POW cannot be charged with a criminal offense. Any wrongdoing must be adjudicated under international justice.

According to Mark Feygin, Lt. Savchenko’s attorney, Nadiya is not alone. There are some 30 Ukrainian service members being held in Russian jails. Russia refuses to recognize them as POWs protected by the Geneva Conventions.

Twenty-two members of the U.S. House of Representatives have written to Secretary of State John Kerry to intervene with the Russians in this matter. Most recently the Parliamentary Assembly of the Council of Europe (PACE) granted international immunity to Lt. Savchenko and called for her immediate release from the Russian prison. She had been elected to Ukraine’s Parliament in the October 2014 elections and was designated a member of the Ukrainian delegation to PACE.

Frankly, none of this matters. If Russia refuses to recognize Lt. Savchenko as a POW, then the only other explanation for her detainment in Russia is that she is a kidnap victim. She was not extradited to Russia at the request of the Russian government to stand trial for crimes committed in Russia. The bogus crime of which she is accused is complicity in the killing of two Russian journalists near Luhansk, in the war zone, which is on Ukrainian territory. There is evidence that the killings occurred after Lt. Savchenko’s capture. The Russian judicial system has no jurisdiction over the alleged crime. Let’s not feign respect for that judicial system by suggesting that the process should play out. Under Geneva there is a presumption of POW status unless deemed otherwise by a “competent tribunal.” A Russian court is certainly not that “competent tribunal” envisioned by Geneva.

Lt. Savchenko has declared and continues to pursue a hunger strike. Her life is in imminent peril. All avenues should be explored to prevent her from dying and freeing her from Russian detention. Nevertheless, the example of Lt. Savchenko and the 30 other Ukrainian servicemen should not be forgotten in any partial resolution.

There can only be one conclusion: Russia is a terrorist state and should be recognized as such with attendant consequences. The West has displayed its disdain for Russian behavior since Russia first invaded Ukraine in February 2014 one week after Russia completed its international public relations farce at Sochi. The West has excoriated Russia at the United Nations on a score of occasions, imposed meaningful sanctions, shunned Russia from the G-8, embarrassed Russia at the G-20 in Australia (to which Russia should never have been invited in the first place), avoided Russia most recently in Davos.

Still, Russia remains arrogant and unrepentant. The only solution is to recognize that Russia is an international terrorist state and utilize all tools at the West’s disposal to defeat Russia in Ukraine.

An arrogant and unrepentant Russia suffering an economic malaise resulting from sanctions is nonetheless a dangerous one. Even effective sanctions will take too long to bring Russia to its knees. A pariah militarily defeated is ultimately a much more malleable and treatable. This expedited approach benefits the Russian people as well. No one is advocating behaving like Russia and taking the fight there. The Russian people will suffer less in the long term if their autocratic and oligarchic leaders lose more now. This requires immediate and serious arming and aligning militarily with Ukraine including offering Ukraine a Membership Action Plan for NATO. Russia has exported terrorism over the last year, and even more so over the last couple of weeks, with indiscriminate shelling resulting in killings of civilians in buses, at marketplaces and in homes in Ukraine. Russia will never surrender. It must be subdued in Ukraine.

The case of Nadiya Savchenko is a glaring example of who the enemy really is. She is a kidnap victim of a terrorist state.