Zelenskyy Turns to the Laws of War in Prosecuting Kremlin Ally Caught in Uniform
Viktor Medvedchuk, the influential oligarch and Putin ally supposedly caught wearing a Ukrainian army uniform now finds himself at the center of a dramatic escalation in the fighting.
By Paul D. Shinkman
April 14,
Ukainian President Volodymyr Zelensky (C) walks in the town of Bucha, northwest of the Ukrainian capital Kyiv, on April 4, 2022.(RONALDO SCHEMIDT/AFP VIA GETTY IMAGES)
The Ukrainian security service released a photo this week of a disheveled man in a conspicuously crisp Ukrainian army uniform manacled in a chair next to a radiator.
For President Volodymyr Zelenskyy, the picture of Viktor Medvedchuk that Kyiv released on social media presents a triumph for the Ukrainian secret service operatives who tracked down the Russian oligarch missing for nearly two months in the midst of a brutal conflict. The close ally of President Vladimir Putin now represents a lucrative prize to trade for the release of soldiers in Russian captivity, as the Ukrainian leader suggested in a pre-dawn video address on Wednesday.
To Putin, the publicized arrest of his goddaughter’s father represented a threat to his interests and leverage over the former Soviet state. It prompted other senior Kremlin officials to assert early Wednesday that a comparable fate would befall influential officials in Ukraine if Zelenskyy follows through on what they consider kidnapping and extortion. Ukrainian leaders should “carefully look around and firmly lock their doors at night,” as Russia’s Security Council Deputy Chairman Dmitry Medvedev warned.
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Analysts who specialize in the laws of armed conflict, however, see a potential quagmire in the photo, particularly if Zelenskyy, in fact, seeks to capitalize on the central assertion in his remarks: that because Medvedchuk was wearing military fatigues, he is subject to new, more potent legal scrutiny and the high-profile punishments that accompany them.
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“We don’t know why he was wearing a Ukrainian uniform, but under the laws of war, it is prohibited to make use of the emblems or military uniform of an adverse party in the conflict in order to ‘shield, favor, protect or impede military operations,’” says Burrus Carnahan, professorial lecturer in law at George Washington University, citing a section the Geneva Convention. “Violation of that article could be punishable by the Ukrainians as a war crime. Also, if Medvedchuk was gathering information for the Russian side while dressed in a Ukrainian uniform, he could be punished as a spy, a charge probably easier to prove.”
“In effect,” he adds, “President Zelenskyy is offering to forgo possible punishment for these offenses in exchange for release of Ukrainian POWs.”
Others wonder why Zelenskyy is choosing to escalate the situation, seemingly needlessly.
“He's subject to ordinary Ukrainian law. No need to invoke the laws of war,” says Adil Haque, a professor of law at Rutgers University and specialist in the law and ethics of armed conflict. “And I don't see what turns on his wearing a Ukrainian uniform, since he wasn't engaged in hostilities or espionage from what I've read.”
A former Ukrainian politician, Medvedchuk had been under house arrest for charges of high treason when he mysteriously disappeared days after Russia’s invasion on Feb. 24. Once known as the “Gray Cardinal,” the man with no known military experience has served as a key conduit in relations between Putin’s Russia and the former Soviet state before facing his recent legal prosecution. Many expected he would have taken on a senior leadership role in a puppet regime Putin reportedly wanted to install in Kyiv through his latest invasion.
It remains unclear why he was wearing a military uniform at the time Ukrainian operatives took the photo they released this week, but the government in Kyiv is wasting no time exploiting that fact to their benefit.
Carnahan cites as an example the aftermath of the Battle of the Bulge in World War II in which the U.S. Army tried and executed several German soldiers captured in U.S. uniforms behind American lines acting as U.S. military policemen and purposefully misdirecting reinforcements away from the battlefield.
Medvedchuk faces three potential violations of international humanitarian law: an improper use of an adversary’s military uniform; espionage, which would waive prisoner-of-war status and remains in effect even if the detainee wears an adversary’s uniform; and “perfidious acts,” a term employed in the Geneva Conventions to describe those who knowingly abuse good-faith legal protections – such as those afforded to uniformed soldiers – to commit a hostile act.
Regardless of the basis for future prosecutions against Medvedchuk, his present circumstances put new pressure on the Kremlin to act before Ukraine institutes its own legal proceedings or even turns over Medvedchuk to an international legal body like the International Criminal Court.
“In theory, perhaps some members of the Russian leadership might be interested in seeking to reduce Mr. Medvedchuk’s susceptibility to being subject to a proceeding in a court in Ukraine or, if the [International Criminal Court] or a foreign court institutes proceedings against him, in his potential transfer outside Ukraine,” says Dustin Lewis, research director for the Harvard Law School Program on International Law and Armed Conflict, adding that he would need more clarity on the facts of Medvedchuk's detention to determine which legal provisions may be applicable.
Lewis adds that the venue for a potential criminal proceeding against Medvedchuk depends partly on the nature of the allegations against him. Nearly every country has domestic laws prohibiting espionage, for example, though under international humanitarian law, a spy in an armed conflict may not be convicted and sentenced without a trial.
“Therefore, summary execution is prohibited,” Lewis says. “For their part, war crimes may be prosecuted in national courts or the ICC.”
Several legal analysts who spoke with U.S. News drew attention to the spotless fatigues and boots Medvedchuk wears in the photo Ukraine released that don’t match his otherwise haggard appearance – nor that of someone previously on the run and captured by secret service operatives. They wonder whether officials in Kyiv might have dressed him as such to exploit the judicial punishments unique to a war zone. Ukraine’s Foreign Ministry did not immediately respond to requests for comment about those questions or the apparent discrepancy.
Ukrainian intelligence officials said later on Wednesday that Medvedchuk was participating in a ruse orchestrated by a Russian exfiltration team to sneak him out of the embattled war zone – which could explain his garments. The Security Service of Ukraine, known as the SBU, learned of the operation and intercepted Medvedchuk before he could flee.
Medvedchuk was already facing charges of treason which could subject him to the death penalty. The magnitude of war crimes that he now faces, however, would present a much stronger basis for Ukraine to negotiate the repatriation of its prisoners of war in Russia’s hands.
“Whether or not there’s more to the story, the Ukrainians have him in custody and can trade him, just as we and other countries have exchanged prisoners of various kinds in the past,” says Eugene R. Fidell, adjunct professor at the New York University School of Law, where he teaches military law. “In other words, regardless of whether he had done something to become subject to the law of armed conflict, he can be traded.”
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