“Courts of dubious legitimacy, so fundamental principles are violated”

from Monica Ricci Sargentini

Marco Pedrazzi, professor of international law at Unimi: “The republic of Donetsk is an unrecognized entity, then the principles of fair trial must be respected”

In a “Supreme Court” of the self-proclaimed republic of Donetsk, which no one in the world recognizes apart from the Russians, three pro-Ukrainian prisoners were sentenced to death “under Article 232 of the Criminal Code” for partially admitting “d ‘to be guilty. But was it a legitimate and just process? We asked Marco Pedrazzi, professor of international law at the University of Milan. «It is very doubtful – he explains to the Courier – that a court of an unrecognized entity such as that of the republic of Donetsk can be considered legitimate ».

What criteria should it respect?

“It should be in accordance with the concept of a court admitted by international law. Each trial must be carefully evaluated on the basis of all the elements that characterize it: the procedure followed, the legal basis of the sentence, respect for the right of defense, the independence of judges and so on “.

The trial of the three defendants, the English Aiden Aslin and Shaun Pinner, 28 and 48, together with the Moroccan Saaudin Brahim, lasted two days and took place behind closed doors.

“A closed-door trial violates the fundamental principle of publicity which must characterize the exercise of criminal jurisdiction. Therefore to the doubts of legitimacy of the constitution of these courts are added evident violations of the principles of fair trial ”.

The three defendants admit to having fought but say they are regular soldiers and not mercenaries. Can they be sentenced to death?

“If they are regular combatants they are prisoners of war: they can be tried for war crimes or for other crimes that are committed after their capture. The penalties are established by domestic law, the death penalty is not legitimate if international norms that prohibit it are applicable ”.

What if they were really mercenaries?

“If they were mercenaries they would not have the right to prisoner-of-war status because it is only provided for legitimate combatants, but this would not eliminate the legitimacy problems of the court and the trial.”

British Foreign Minister Liz Truss spoke of a mock trial. Agree?

“It certainly doesn’t seem to me that there are grounds for defining it as a process that respects the basic principles established by international law.”

A 20-year-old Russian soldier who confessed to killing a civilian in cold blood was sentenced to life in Kiev at the end of May. In this case, however, is the process legitimate?

“It is legitimate to try a prisoner of war and the Ukrainian courts do not present the profiles of dubious legitimacy that we have seen above, but each process must be carefully evaluated on the basis of all the elements that characterize it: the procedure followed, the legal basis of the sentence, the respect for the right of defense, the independence of judges and much more ».


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