THE BAR ASSOCIATION OF QUEENSLAND
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Issue 98: December 2024
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A review of “Gold and Silver” by Ian CallinanThe Theatre @ 210 Petrie Terrace, 14 to 23 November 2024

Theatre-goers who recall Ian Callinan’s previous stage productions (Brazilian Blue, The Cellophane Ceiling, The Acquisition and A Hero’s Funeral) may be surprised by his latest drama, Gold and Silver. Ostensibly a work which contrasts the values which society attributes to sporting and scientific achievements, and the ethical dilemmas posed by each discipline, it is – more than anything else – a stage-play about stage-plays.

There is none of the plot-driven, narrative impetus of Callinan’s previous works. In fact, there is barely a story at all: merely a situation, or rather series of situations, in which the main characters are confronted with specific quandaries, and respond with very different – yet compellingly plausible, and ultimately euphonious – human reactions. These reactions are presaged with references, sometimes overt and sometimes almost subliminal, mirroring the plot-lines and tropes of well-known literary works: poetical, lyrical, cinematic, but mostly theatrical.

The play’s structure is not unlike that of the famous second movement (Allegretto) from Beethoven’s Seventh Symphony. There is practically no tune or melody – merely a beat or rhythmic ostinato, in 2/4 time, something like the ground bass for a Baroque passacaglia, which best resembles a message in morse code: “long-short-short-long-long” – which Beethoven explores through different key modulations and different chord progressions, with different dynamics and different instrumentation, as if searching in the musical wilderness for an elusive harmonic resolution. Only in the final moments is this resolution achieved, with a rapid descent into the tonic key celebrated by a triumphant fugato. Yet there are hints along the way, referencing earlier works by Mozart and Josef Haydn, from which the astute listener may begin to discern a faint light at the end of a long and serpentine tunnel.

Callinan generously credits his audience with at least a passing familiarity with the sources of the literary references, from Lewis Carroll to Terence Rattigan, from Noël Coward to Eugène Ionesco, from Lerner and Loewe to Alan Bennett and Samuel Beckett, and occasionally from Hollywood’s ‘golden years’. But he also spices these references with little-known anecdotes about the respective playwrights’ connections with the sport of cricket, while avoiding (perhaps deliberately) Oscar Wilde’s bon mot that he never played cricket because “it requires one to assume such indecent postures.”

With a bravura reminiscent of Tom Stoppard, whose Rosencrantz and Guildenstern Are Dead might well have served as an inspiration for this stage-play about stage-plays, Callinan utterly eschews the Gilbertian dramatic formula: that is, the formula by which the main characters assemble in serried ranks to introduce themselves or to be introduced (“I am the very model of a modern major-general”, “Behold the Lord High Executioner”, “I am the captain of the Pinafore”, “Three little maids from school are we”, “Over the bright blue sea / Comes Sir Joseph Porter KCB”, “For I am a pirate king”, etc. etc.) and proceed to foreshadow their parts in the unfolding narrative. Instead, the first scene presents (but never quite gets around to introducing) the principal protagonists, Mark and Sarah, in what appears to be a waiting room, which we slowly gather is the waiting room for some kind of medical specialist, and later discover to be the waiting room of an oncologist.

Chronologically, this first scene is actually the penultimate stage in the drama, so we are then carried back in time to discover who they are, and how an Olympic athlete and silver medallist (Mark) has come to be married to a scientist with three academic gold medals (Sarah). Mark, it transpires, is a sprinter, whose entire subsequent life – which, as we glean, could well prove to be tragically shorter than expected of an elite athlete – is an anticlimax to being the second-fastest man in the world. Sarah is working on a tech start-up, creating an artificial intelligence algorithm which, when perfected, will effectively read minds.

Mark’s challenges are those of the successful sportsman whose star is waning, particularly after a knee injury prevents him from performing competitively: Should he demean himself by pursuing a sporting scholarship for a dumbed-down degree from a second-tier US university, or accepting a coaching position, or succumbing to the ultimate dumping-ground of sporting has-beens as a media commentator?; Or should he demean himself even further, by becoming house-husband and toy-boy to his gifted and financially successful wife? Sarah’s conundrums are more profound: Is it conscionable to accept a huge pay-out for intellectual property which, in the wrong hands, may prove to be the end of human life as we know it?; What responsibilities does she owe to her junior partner, a socially awkward but brilliant computer programmer?

If there is any flaw in Callinan’s script, it is that the dialogue is too subtle, too nuanced, too sophisticated to be adequately conveyed by an amateur cast. This is not meant as criticism of the valiant actors who courageously accepted these demanding rôles: if the play had been filmed in 1964, with the same cast as the movie of Goldfinger made in that year, it is doubtful that even Sean Connery and Honor Blackman – let alone Gert Fröbe, taking the part of Sarah’s uncle Jack – would have found the task an easy one.

But this is not a comedy of wit and manners; neither is it a drawing-room drama or an action-adventure. It is an ambitious, thought-provoking, and unashamedly intellectual work, directed at an open-minded, literate and perceptive audience: think of Waiting for Godot, laced with cryptic literary clues to steer the audience’s minds in the right direction. The preview performance attracted such an audience, who showed their deep appreciation and gratitude. Such existentialist drama (which is perhaps the most appropriate taxonomical classification of Gold and Silver) requires talents which are not readily available in Hollywood, any more than they are available in Brisbane’s vibrant amateur theatrical community.

When I informed my wife and daughter that I had purchased tickets to Ian Callinan’s new play, the latter – like any healthily sceptical seventeen-year-old – asked why I had chosen this particular work. I replied that I had seen each of his previous plays, and they were great fun; also, that she might like to meet the playwright. She looked astonished: “Are you sure he is going to be there”? I assured her that he always attends the opening night, and also mentioned that he was a great friend of her late grandfather’s. “You mean, Opi Hampson knew Sir Ian McKellen”? I am not quite sure how my daughter confused the names Ian Callinan and Ian McKellen, but the mix-up might have been prophetic.

To do this play justice, one hopes that its next opening will be in the West End, with the likes of (say) Daniel Radcliffe or Jacob Elordi, and (say) Anya Taylor-Joy or Emily Blunt, in the leading parts. If anyone could carry that off, Ian Callinan most certainly will.

In this meticulously researched and argued piece, Mr Morris KC explains the scandal concerning the UK Post Office arising from use of software known as “Horizon”. After canvassing same – including the raft of court overturning of much earlier criminal convictions of the proprietors of retail post offices – Mr Morris gives consideration of the provisions of the Evidence Act 1977 (Qld), being of a kind which were utilised in the UK to admit evidence in the case in which the wrongful convictions occurred. As part of his exegesis Mr Morris – no doubt helpfully for the Queensland Law Reform Commission and Government – descends to the manner in which s 95 of the Evidence Act could be amended to produce a proper evidentiary outcome in cases in which computer generated evidence is sought to be adduced upon criminal prosecutions. The article of Mr Morris is lengthy but – unlike the protracted remediation of the wrongful convictions that occurred in this space in the UK – timely in consideration of the above issues.

Lessons from the UK’s Post Office Scandal

Many Australians, and people in the Western World generally, are starting to ‘zone out’ from the war in Ukraine: partly because, after eight months, it has well outlasted our attention span; partly because it now seems that the ‘good guys’ are well on their way to winning. As the Northern Winter approaches, bringing the campaigning season to a close until 2023’s vernal thaw, many other crises – economic, political and humanitarian – will emerge to engage our fleeting mindfulness. As Dr Samuel Johnson observed over 260 years ago:[1]

The man who first took advantage of the general curiosity that was excited by a siege or battle, to betray the readers of news into the knowledge of the shop where the best puffs and powders were to be sold, was undoubtedly a man of great sagacity, and profound skill in the nature of man. But … [w]hatever is common is despised. Advertisements are now so numerous that they are very negligently perused, and it is therefore become necessary to gain attention by magnificence of promises, and by eloquence sometimes sublime and sometimes pathetic.

Still, for the lawyer whose interests are not limited to the timeous completion of a cottage conveyance, or winning tomorrow’s case, the Russo-Ukrainian War raises some interesting points of public international law and international criminal law. This guide is not intended as a comprehensive analysis; merely an introduction.

Public International Law

The 1994 Budapest Memorandum

Following the dissolution of the Soviet Union and Ukraine’s overwhelming vote for independence from Russia on 1 December 1991, Ukraine found itself possessed of the third-largest nuclear arsenal in the world, including some 1,900 strategic warheads, 176 intercontinental ballistic missiles, and 44 strategic bombers. Whether or not Ukraine was in a position to utilise them – whether they even possessed the launch codes – is unclear. But, on 5 December 1994, Ukraine agreed to surrender all nuclear weapons.

“As expedient as it may have seemed to Putin at the time, playing the ‘genocide card’ was a significant strategic mistake”

What Ukraine asked, in return, was modest enough. They initially sought guarantees of their security from Russia, the US, the UK, China and France. Even this was refused, and Ukraine had to accept from these countries mere assurances of their honourable intentions. These promises were duly recorded and executed in the Budapest Memorandum on Security Assurances.[2]

Unlike many international treaties, the language of the Budapest Memorandum was straightforward and unambiguous. Each of these countries – most significantly, Russia – solemnly promised:

The Budapest Memorandum remains in force. Ukraine performed its part of the bargain, by handing over the entirety of its nuclear stockpile. By Russia’s invasion of Ukraine and annexation of Crimea in 2014, and again by its 2022 invasion and its recent purported annexation of the Luhansk, Donetsk, Zaporizhzhia and Kherson oblasts (districts), it has violated every one of its substantive promises in the Budapest Memorandum.[3]

Some supporters of Ukraine argue that, on one reading, each of the other ‘great power’ signatories – possibly excluding France and China[4] – promised to enforce the provisions of the Budapest Memorandum against one another.[5] But no such obligation is expressed in terms; it is not the sort of obligation which any country would assume sub silentio; and the preponderance of authoritative academic opinion is to the contrary.[6]

The Promise not to Expand NATO

One justification for the war, trotted out by many Putin apologists, is a claim that the US breached a spoken promise that, following the reunification of East and West Germany, NATO would not expand further to the East. One obvious flaw in this argument is that Ukraine has not joined NATO, although, seven months into the current invasion – following the purported annexation of Luhansk, Donetsk, Zaporizhzhia and Kherson – it has now applied to do so. To the extent NATO has otherwise expanded in an Easterly direction,[7] that is obviously not something for which Ukraine can be held responsible.

Moreover, it is doubtful that the US – as only one member of NATO – could validly have made such a promise on NATO’s behalf without the concurrence of other members. It is equally doubtful that Russia, as only one constituent member of the former Soviet Union, could validly complain about the breach of an oral promise allegedly made to the then Soviet government.

However, both points are irrelevant, since no such promise was ever made.[8] Indeed, so much has been expressly admitted by Russia’s then foreign minister, Yevgeny Primakov, who actually bemoaned the fact that such a commitment was not even sought when (in his view) it might well have been granted.[9]

“It may be conceded that Kyiv was never enthusiastic about the Minsk Agreements, feeling that they had been forced to accept dictated terms (literally) at gunpoint. But at least Ukraine went through the motions of complying with the ‘roadmap’, if for no other reason than to avoid accusations that it had ‘scuppered’ the ‘peace process’. Russia, together with its puppet regimes, did not even pretend to comply”

The Minsk Agreements

Following the 2014 invasion and Russia’s annexation of Crimea, negotiations took place in the Belarus capital, Minsk, with a view to securing permanent peace. Another justification for Putin’s “Special Military Operation”, much favoured by his apologists, is Ukraine’s alleged repudiation of the Minsk Agreements.

There were actually two Minsk Agreements. Minsk I (also known as the “Minsk Protocol”) was signed on 5 September 2014.[10] It was an abject failure from the outset. A revised version, signed on 19 September 2014,[11] enjoyed no greater success. At the time, there was much debate regarding responsibility for this outcome, with both sides accusing the other of unprovoked violations. Much of the blame lies at the feet of Putin’s puppet regimes in the (so-called) Donetsk People’s Republic (DPR) and Luhansk People’s Republic (LPR), though it remains unclear to what extent they were following orders from Moscow. In any event, Minsk I had entirely collapsed by the end of 2014, and was formally abandoned in January 2015.

Its replacement, Minsk II, signed on 12 February 2015, comprised a 13-point ‘roadmap’ towards a resolution.[12] Its provisions were plainly aspirational. For instance, certain amendments to Ukraine’s Constitution were proposed, all of them requiring a two-thirds majority in the Verkhovna Rada (Ukrainian Parliament), and most requiring approval by an ‘All-Ukrainian Referendum’, the results of which could not be guaranteed in advance.[13]

At best, it was an agreement to agree, requiring “a dialogue … on modalities of conducting local elections”;[14] an obligation to “Define the modalities of a full restoration of social and economic connections, including social transfers, such as payments of pensions and other payments”;[15] a stipulation that “questions related to local elections will be discussed and agreed upon with representatives of particular districts of Donetsk and Luhansk oblasts in the framework of the Trilateral Contact Group”;[16] and a requirement to “Intensify the work of the Trilateral Contact Group including through the establishment of working groups on the implementation of relevant aspects of the Minsk agreements”;[17] as well as legislative and constitutional reforms in terms yet to be agreed.[18]

However, there were three unambiguous requirements, none of them dependent on further dialogue or agreement:

None of this occurred. And if the puppet DPR and LPR regimes were the main culprits in the failure of Minsk I, Russia itself was almost solely to blame for the failure of Minsk II. Despite the mandated “Immediate and full ceasefire” and “Pullout of all foreign armed formations, military equipment, and also mercenaries from the territory of Ukraine”, Russia refused to withdraw its troops or armaments and continued to attack Ukrainian troops in the contested city of Debaltseve.[22] More than 12 months after Minsk II was signed, OSCE deputy head of mission in Ukraine, Alexander Hug, said the OSCE had observed: “tire tracks … of vehicles crossing the [Russo-Ukrainian] border”; “armed people with Russian insignia” fighting in Donbas; and that military prisoners admitted to being Russian soldiers.[23] At no point was control of the state border restored to Ukraine. Russia even sought to argue that, although a signatory to Minsk II, it was not bound to comply, as it had signed merely in the capacity of a mediator.[24]

Minsk II continued to fall apart. In June 2015, the separatist leaders of the DPR and LPR announced that, despite the provisions of Minsk II, their territories “would like to join the Russian Federation”, and also considered Crimea to be part of Russia.[25] Despite an express requirement that elections in the DPR and LPR be conducted “in accordance with the Ukrainian legislation and the Law of Ukraine ‘On temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts’,”[26] the separatist leaders in both districts countermanded elections which were to be conducted by the Kyiv government with OSCE oversight, and conducted their own sham elections.[27] Agreement could not be reached regarding the legislative and constitutional changes contemplated by Minsk II, after Russia’s Foreign Minister, Sergei Lavrov, rejected Ukraine’s proposals.[28]

Finally, on 21 February 2022, Putin recognised the DPR and LPR as independent nations.[29] This destroyed the substratum of the Minsk Agreements, which were directed at achieving autonomy for the DPR and LPR within the Ukrainian state. He announced that the Minsk Agreements “no longer existed”, and blamed Ukraine on the grounds of “genocide”,[30] a charge for which no evidence has been produced.

It may be conceded that Kyiv was never enthusiastic about the Minsk Agreements, feeling that they had been forced to accept dictated terms (literally) at gunpoint. But at least Ukraine went through the motions of complying with the ‘roadmap’, if for no other reason than to avoid accusations that it had ‘scuppered’ the ‘peace process’. Russia, together with its puppet regimes, did not even pretend to comply. This explains why, when Putin announced the demise of the Minsk Agreements – long after rigor mortis had set in, and when the corpse was in an advanced stage of putrefaction – he had to invent the facile charge of “genocide” as a reason to blame Ukraine for an outcome which was obviously his intention from the outset.

The International Court of Justice[31]

As expedient as it may have seemed to Putin at the time, playing the ‘genocide card’ was a significant strategic mistake. Russia, like many countries, has never submitted generally to the jurisdiction of the ICJ; in order to bring a case against Russia, it is necessary to identify a treaty to which Russia is a party, containing a specific submission to the ICJ’s jurisdiction, and to frame the case within the purview of that treaty.

When Putin came up with the idea to accuse Ukraine of genocide, perhaps the last thing on his mind was the fact that both Russia and Ukraine were signatories to the Convention on the Prevention and Punishment of the Crime of Genocide.[32] It provides, by Article IX, that:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Accordingly, Ukraine was able to frame a case in which the issues were:

This forced Russia to change tack, arguing that the dispute had nothing to do with the Genocide Convention; that it related solely to the use of force under customary international law; and that, in carrying out a “special military operation” in Ukraine, Russia was exercising “its right of self-defence under Article 51 of the Charter of the United Nations”.

But it was too late to put the genocide genie back in the bottle. Putin’s statement that the “purpose” of the special operation was “to protect people who have been subjected to abuse and genocide by the Kiev regime for eight years” was echoed by various representatives of the Russian state – including the Investigative Committee of the Russian Federation (an official Russian agency in charge of federal criminal prosecutions), the Chairman of the Russian Parliament, Russia’s Ambassadors to the United Nations, to the European Union, and to the Contact Group (the negotiating body under the Minsk Agreements), and, needless to say, Russia’s Foreign Minister (Sergey Lavrov) – many of whom specifically cited provisions of the Genocide Convention.

Nor did it help Russia’s position that it declined to participate in oral hearings before the ICJ on 7 March 2022, although the Russian Ambassador to the Netherlands communicated to the Court a document setting out “the position of the Russian Federation regarding the lack of jurisdiction of the Court in t[his] case”.

That hearing concerned an application by Ukraine for “Provisional Measures”; that is, orders of the kind known in the Common Law world as interlocutory injunctions. Such orders were granted on 16 March 2022, by a majority of 13 judges to 2, requiring that:

  1. The Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine;
  2. The Russian Federation shall ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control or direction, take no steps in furtherance of the military operations referred to in point (1) above;

Unsurprisingly, the dissenting members of the ICJ were a Russian Judge (Vice-President Kirill Gevorgian) and a Chinese Judge (Judge Xue Hanqin). Also unsurprisingly, Russia has ignored the Provisional Measures, with Kremlin spokesman Dmitry Peskov stating on the next day that Russia regards the matter as being outside the ICJ’s jurisdiction, and therefore “cannot take this decision into account”.[33]

Numerous countries have now sought to intervene in the ICJ proceedings, including (in order of their “Declarations of Intervention”) Latvia, Lithuania, New Zealand, the United Kingdom, Germany, the United States, Sweden, France, Romania, Poland, Italy, Denmark, Ireland, Estonia, Finland, Spain, Australia, Portugal, Austria, Greece, and Luxembourg.

International Criminal Law

Much has been said and written in the mainstream media concerning war crimes committed during Putin’s “Special Military Operation”. A large part of this reporting betrays some ignorance of both the principles and the practicalities of international criminal law.

“The number and diversity of these alleged offences would make ponderous any attempt to review the applicable legal principles, even superficially. But a few basic principles of jus in bello – the laws and customs of warfare – should be highlighted”

The International Criminal Court

The ICC was established in 2012 as the first permanent international tribunal with jurisdiction over the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.[34] It is governed by the Rome Statute[35] – a multilateral treaty – and its jurisdiction is generally exercisable in respect of (a) offences committed in the territory of a state party, (b) offences committed by a national of a state party, and (c) other offences where its jurisdiction is authorised by the United Nations Security Council.[36] In respect of the crime of aggression, however, its jurisdiction excludes offences committed by a national of, or on the territory of, a state that has not ratified or accepted the Rome Statute.[37] In all cases, its jurisdiction is complementary to that of domestic courts, and is only exercised where states are “unable” or “unwilling” to exercise jurisdiction themselves.[38]

Neither Russia nor Ukraine is a full party to the Rome Statute. Russia was a signatory, but withdrew on 16 November 2016 following an adverse preliminary examination report by the office of the ICC prosecutor. Ukraine has never been a signatory. However, the Rome Statute allows a state which is not a party to grant the ICC limited jurisdiction in respect of offences committed on its territory. Ukraine has done that, by two declarations lodged with the ICC, the first limited to the period 21 November 2013 to 22 February 2014, and the second from 20 February 2014 with no ‘end date’.[39]

It follows that instances of genocide, crimes against humanity, and war crimes – but not the crime of aggression – are justiciable in the ICC. Arguably, the crime of aggression may be prosecuted in an ad hoc tribunal, modelled on the Nüremberg and Tokyo war crimes trials, with or without United Nations involvement.[40] Getting the appropriate defendants before such a tribunal will be the critical problem, since Russia is unlikely to surrender or extradite the person or persons “in a position effectively to exercise control over or to direct the political or military action of [the] State”, who is or are responsible for “the planning, preparation, initiation or execution … of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.[41]

War Crimes

Investigations of alleged and potential crimes have been undertaken, not only by the office of the ICC prosecutor, but also by the Prosecutor-General of Ukraine;[42] by various countries which have foreshadowed their intention to invoke ‘universal jurisdiction’ over offences committed outside their borders;[43] by the International Commission of Inquiry on Ukraine created by the United Nations Human Rights Council;[44] by the UN Human Rights Monitoring Mission in Ukraine; by the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe; by a Joint Investigation Team established by the European Union; by the Atrocity Crimes Advisory Group established by the US, UK and EU; and by non-government organisations like Human Rights Watch, Amnesty International and the Task Force on Accountability for Crimes Committed in Ukraine (a pro bono international group of lawyers who have volunteered their assistance to Ukraine’s Prosecutor-General).[45]

The results have been a catalogue of alleged offences, including:

The number and diversity of these alleged offences would make ponderous any attempt to review the applicable legal principles, even superficially. But a few basic principles of jus in bello – the laws and customs of warfare – should be highlighted.

What targets are ‘fair game’?

Of the four Geneva Conventions of 12 August 1949, the fourth (“Geneva Convention IV”) is entitled “Geneva Convention relative to the Protection of Civilian Persons in Time of War”.[46] It is now read together with the first amendment protocol of 8 June 1977 (Geneva Protocol I) “relating to the Protection of Victims of International Armed Conflicts”.[47] Read together, they seek to reconcile the practicalities of warfare with the desire to minimise harm and disruption to non-combatants.

Some targets are off-limits. These include:

For other targets, armed forces are required to balance military significance against the risk of harm to civilians and disruption of civilian life.[54] For example, roads, railway lines, bridges, airstrips and port facilities may be considered ‘fair game’ if they are significant for the transportation of troops or military supplies; factories and (non-nuclear) electrical generating stations if they are used to produce armaments or munitions.

What forms of warfare are prohibited?

Geneva Convention IV and Geneva Protocol I absolutely prohibit:

Even where a particular form of warfare is not absolutely prohibited, military commanders and personnel are obliged:[58]

What is a mercenary?

Under Geneva Protocol I, mercenaries – along with spies – are excluded from the protections generally afforded to combatants and prisoners of war (“PoWs”).[59] But what is a “mercenary”?

This term is defined to include:[60]

… any person who:

(a)    is specially recruited locally or abroad in order to fight in an armed conflict;

(b)    does, in fact, take a direct part in the hostilities;

(c)    is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

(d)   is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

(e)    is not a member of the armed forces of a Party to the conflict; and

(f)    has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Plainly, contractors of the “Wagner Group” (which describes itself as a “private military company”), who are engaged to fight on the Russian side, meet every element of this definition.[61] This may be contrasted with troops fighting with the International Legion of Territorial Defense of Ukraine, who have volunteered rather than being recruited; are motivated either by a connection with Ukraine or an ideological commitment to support Ukraine’s defence against a foreign incursion; who receive the same remuneration as comparable members of Ukraine’s armed forces; and who are accepted into Ukraine’s military.[62]

“Unfortunately, the current state of customary international law remains unsettled, and it is not clear whether the Rome Statute was intended to codify or to reform the existing law, and to retain or repeal the defence available under “Nüremberg Principle IV” in a case involving compliance with an illegal order where there is no “moral choice””

How should prisoners of war be treated?

The Third Geneva Convention ”relative to the Treatment of Prisoners of War” (“Geneva Convention III”) was first adopted in 1929, and, after revision, has been in its current form since 1949.[63] Many of its provisions will be familiar to devotees of movies or television shows featuring PoWs, where it is invariably referred to as “THE Geneva Convention”. These provisions include:

Of particular relevance in the context of the Russo-Ukrainian War are certain provisions of Geneva Convention III with which Russia appears to be egregiously non-compliant, especially in the context of an incident which occurred in Olenivka, a hamlet near Donetsk in the DPR, on 29 July, when 53 Ukrainian PoWs were killed and 75 wounded in an explosion.

First, the Ukrainian PoWs were housed in a prison. Geneva Convention III provides that “Except in particular cases which are justified by the interest of the prisoners themselves, [PoWs] shall not be interned in penitentiaries”.[72]

Secondly, the barracks where the Ukrainian PoWs were housed was a mere 6.5 kilometres from the front line. Geneva Convention III provides that “No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.”[73] It also provides that “Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger.”[74]

The seriousness of this violation is exacerbated by the fact that, shortly prior to the explosion, particular PoWs – mainly members of the Azov Regiment, who had surrendered at Mariupol – were relocated to the barracks where the explosion occurred. Ukraine claims they were relocated either as human shields, or to facilitate a ‘false flag’ atrocity.

Thirdly, Geneva Convention III provides for the welfare of PoWs to be overseen by the “Protecting Power” – generally, although not invariably, the International Committee of the Red Cross – and provides that:[75]

Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access to all premises occupied by prisoners of war; they shall also be allowed to go to the places of departure, passage and arrival of prisoners who are being transferred. They shall be able to interview the prisoners, and in particular the prisoners’ representatives, without witnesses, either personally or through an interpreter.

Representatives and delegates of the Protecting Powers shall have full liberty to select the places they wish to visit. The duration and frequency of these visits shall not be restricted. Visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure.

The ICRC has complained that, following the explosion at Olenivka, its representatives were denied access. The only “imperative military necessity” was, it seems, Russia’s priority to provide access to chosen representatives of media organisations which might be expected to report Russia’s account of the incident.

Fourthly, Geneva Convention III does not allow the deliberate killing of PoWs. Apart from ‘bromide’ statements about treating PoWs “humanely”[76] and respecting PoWs “persons and their honour”[77], there is also a provision that:[78]

The use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances.

However, the preponderance of evidence suggests that, following unsuccessful attempts to attract return fire by launching ‘Grad’ missiles towards a nearby Ukrainian encampment – evidently as an attempt to blame the incident on ‘friendly fire’ – the explosion at Olenivka was deliberately set by Wagner Mercenaries to kill and maim PoWs who had been locked in their barracks with no guards or caretakers.

This is entirely consistent with Russia’s London embassy ‘retweeting’ a plea that members of the Azov Regiment “deserve to be executed, not by firing squad, but by hanging, because they aren’t real soldiers. They deserve a humiliating death”.[79] It is also consistent with evidence – said to be available on Russian social media – of Ukrainian PoWs being mutilated and murdered, including a video of one PoW having his genitals excised with a box-cutter, shot dead, and dragged through streets by a rope; also photographs of a PoW’s body with severed hands and head planted on a fence.[80]

The ‘Nüremberg Defence’.

Following the Nüremberg War Crimes Trials, the International Law Commission of the United Nations attempted to codify the underlying legal principles.[81] Of the seven “Nüremberg Principles” identified, Principle IV was in terms that:

IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Notably, although expressed in negative terms, the statement of this principle effectively allows a defence where no “moral choice was in fact possible”. Whilst the expression “Nüremberg Defence” is often applied to any defence of ‘superior orders’, this is a misconception. It was US General Telford Taylor, who served as Chief Counsel for the United States during the Nüremberg trials, who coined the term “Nüremberg Defence” as referring to two separate situations:[82]

Article 33 of the Rome Statute, however, provides only that:

1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a)    the person was under a legal obligation to obey orders of the Government or the superior in question;

(b)    the person did not know that the order was unlawful; and

(c)    the order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

Also relevant is paragraph 1(d) in Article 31 of the Rome Statute, which provides:

1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:

…

(d)   The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.

The Article 31(1)(d) defence is obviously problematic, insofar as it is qualified by the words “provided that the person does not intend to cause a greater harm than the one sought to be avoided”. Some would see it as unfair that a Russian soldier, ordered to mistreat a civilian or PoW, is required to ‘weigh up’ whether compliance with the order will “cause a greater harm” than the threatened punishment for disobedience. Moreover, as the defence is confined to “a threat of imminent death or of continuing or imminent serious bodily harm” [emphasis added], the defence would not be available to a soldier threatened with a court martial, even though the court martial may – or the soldier believes that it may – result in capital punishment.

Unfortunately, the current state of customary international law remains unsettled, and it is not clear whether the Rome Statute was intended to codify or to reform the existing law, and to retain or repeal the defence available under “Nüremberg Principle IV” in a case involving compliance with an illegal order where there is no “moral choice”.

Such a case arose with the first prosecution in a domestic Ukrainian court for an alleged war crime committed by a Russian soldier. Vadim Yevgenievich Shishimarin was a 21-year-old sergeant and squad leader in the 13th Guards Tank Regiment of the Russian Army’s 4th Guards Tank Division. On 28 February 2022, while retreating, his group of five soldiers commandeered a private vehicle and drove to Chupakhivka, Sumy Oblast, about 200 miles east of Kyiv. En route, they saw Oleksandr Shelipov, a 62-year-old Ukrainian (coincidentally, a former bodyguard of Leonid Brezhnev), who was riding a bicycle and talking on a phone. Warrant Officer Makeev, who outranked Shishimarin, ordered him to shoot the man. Shishimarin refused, but another soldier named Kufakov – apparently a commissioned officer, who therefore outranked both Shishimarin and Makeev – repeated the command. Shishimarin fired three or four rounds from a Kalashnikov assault rifle through an open car window, killing Shelipov. The tank team was later ambushed, killing Kufakov, and the remaining members of the team eventually surrendered.[83]

Shishimarin pleaded guilty to fatally shooting Shelipov. His defence lawyer argued that he should be acquitted of any war crime.[84] However, the primary Judge found that he had committed murder and violated the laws and customs of war, carrying out a “criminal order” by a soldier of higher rank. He was sentenced to life imprisonment on the basis that, “Given that the crime committed is a crime against peace, security, humanity and the international legal order … the court does not see the possibility of imposing a [shorter] sentence of imprisonment”.[85]

On appeal, the sentence was reduced to 15 years. From the limited reports available, however, it does not appear that the appellate court gave any credence to the “Nüremberg Defence”; the sentence was reduced because “there were no aggravating circumstances in the form of conspiracy to commit murder or intent to commit a crime against an elderly person justifying a life sentence”.[86]

Yet, with Ukrainian authorities having registered more than 10,000 alleged war crimes across the country[87] – and the notorious circumstances in which Russian civilians have lately been conscripted for active service in Ukraine – it may be anticipated that we have not heard the last of the “Nüremberg Defence”.

[1] The Idler #40, 20 January 1759.

[2] The full text is available from the United Nations website at <treaties.un.org>.

[3] Steven Pifer, “The Budapest Memorandum and U.S. Obligations”, The Brookings Institution, 4 December 2014; Tory Rich, “The Origin of America’s Security Obligations to Ukraine”, Sandboxx, 11 February 2022.

[4] France and China are generally accepted to be free of any obligation to enforce compliance, as they each signed slightly different treaties with Ukraine.

[5] see, e.g., Prof. Engr. Zamir Ahmed Awan, “Ukraine is betrayed by the US and UK”, Modern Diplomacy, 25February 2022; Eugene Czolij, “The Budapest Memorandum – reality check”, The Kyiv Independent, 23 February 2022.

[6] see, e.g., Prof. Stephen MacFarlane, quoted in “Are the US and the UK bound to intervene in Ukraine?”, France 24 News, 3 March 2014; Steven Pifer, quoted in “Ukraine crisis’ impact on nuclear weapons”, CNN, 4 March 2014; Thomas D. Grant, “The Budapest Memorandum and Beyond: Have the Western Parties Breached a Legal Obligation?”, EJIL:Talk! (Blog of the European Journal of International Law), 18 February 2015.

[7] i.e., with the accession of Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia and Slovenia in 2004, Albania and Croatia in 2009, Montenegro in 2017, and North Macedonia in 2020.

[8] Sarotte, M. (2014), “A Broken Promise? What the West Really Told Moscow About NATO Expansion”, Foreign Affairs, 93(5), p.96.

[9] Ye.М. Primakov, Годы в Большой Политике [Years in Big Politics], Издательство “Совершенно секретно” [Publishing House “Top Secret”], 1999, p.234.

[10] “Minsk Protocol” (in Russian), Organization for Security and Co-operation in Europe, 5 September 2014.

[11] “Memorandum of 19 September 2014 outlining the parameters for the implementation of commitments of the Minsk Protocol” (in Russian), Organization for Security and Co-operation in Europe, 19 September 2014.

[12] “Package of Measures for the Implementation of the Minsk Agreements” (in Russian), Organization for Security and Co-operation in Europe, 12 February 2015 (referred to herein as “Minsk II”).

[13] Ukraine Constitution, “Chapter XIII: Introducing Amendments to the Constitution of Ukraine”.

[14] Minsk II, clause 4.

[15] Minsk II, clause 8.

[16] Minsk II, clause 12.

[17] Minsk II, clause 13.

[18] Minsk II, clause 11, and see also clauses 4, 5, 8, 9 and 12.

[19] Minsk II, clause 1.

[20] Minsk II, clause 9.

[21] Minsk II, clause 10.

[22] Ian Traynor, “Putin tried to delay Ukraine ceasefire deal, EU summit told”, The Guardian, 13 February 2015.

[23] “OSCE ‘sees Russian soldiers, weapons in Ukraine for two years’”, Kyiv Post, 26 March 2016

[24] Andrew E. Kramer, Michael R. Gordon, “U.S. Faults Russia as Combat Spikes in East Ukraine”, The New York Times, 13 February 2015 (quoting Russian presidential press secretary, Dmitry Peskov); see also “Russia accepts no claims on Savchenko in context of Minsk accords – Foreign Ministry”, TASS, 27 March 2016 (quoting Russian Foreign Ministry press secretary, Maria Zakharova).

[25] “‘ДНР’ та ‘ЛНР’ передумали й визнали Крим російським” [“‘DPR’ and ‘LPR’ changed their minds and recognized Crimea as Russian”], BBC Ukrainian Service (in Ukrainian), 10 June 2015.

[26] Minsk II, clause 4.

[27] “Local elections in DPR to take place on 18 October – Zakharchenko”, Interfax-Ukraine, 2 July 2015.

[28] “Ukraine parliament offers special status for rebel east, Russia criticizes”, Reuters Kiev, 17 March 2015 (quoting Russia’s Foreign Minister, Sergei Lavrov).

[29] Andrew Roth, Julian Borger, “Putin orders troops into eastern Ukraine on ‘peacekeeping duties’”, The Guardian, 21 February 2022.

[30] “Putin says Ukraine’s Minsk peace process is finished, blames Kyiv”, The National Post, 22 February 2022; “Minsk agreements cease to exist – Putin”, TASS, 22 February 2022.

[31] Unless otherwise noted, the present section of this article is drawn from the majority judgments in the ICJ, particularly:

[32] The full text is available from the United Nations website at <treaties.un.org>.

[33] “Kremlin, As Expected, Rejects ICJ Ruling To Halt Ukraine Invasion”, Radio Free Europe, 17 March 2022.

[34] Rome Statute, Articles 5 to 8.

[35] The full text is available from the United Nations website at <treaties.un.org>.

[36] Rome Statute, Article 13.

[37] Rome Statute, Article 15; International Criminal Court, Resolution ICC-ASP/16/Res.5, adopted 14 December 2017, paragraph 2.

[38] Rome Statute, Article 17.

[39] “Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: ‘I have decided to proceed with opening an investigation’”, 28 February 2022.

[40] Jennifer Trahan, “Revisiting the History of the Crime of Aggression in Light of Russia’s Invasion of Ukraine”, American Society of International Law ASIL Insights, Volume 26, Issue 2, 19 April 2022.

[41] Rome Statute, Article 8; and see Colum Lynch, “Prosecuting Putin”, Foreign Policy, 24 March 2022.

[42] Ben Farmer, Tanya Kozyreva, Simon Townsley, “I’m building 2,500 war crimes cases against Vladimir Putin’s invasion, says Ukraine’s chief prosecutor”, The Daily Telegraph, 30 March 2022.

[43] Heather Stephenson, Tom Dannenbaum, “What are War Crimes—and Will Putin Be Tried for Them?”, The Fletcher School at Tufts University, 29 March 2022. The countries concerned include, to date, Estonia, Germany, Latvia, Lithuania, Norway, Poland, Slovakia, Spain, and Sweden.

[44] “Human Rights Council establishes an Independent International Commission of Inquiry to investigate all alleged violations of human rights in the context of the Russian Federation’s aggression against Ukraine”, United Nations Human Rights Council, 4 March 2022.

[45] Ben Farmer, Tanya Kozyreva, Simon Townsley, “I’m building 2,500 war crimes cases against Vladimir Putin’s invasion, says Ukraine’s chief prosecutor”, The Daily Telegraph, 30 March 2022.

[46] The full text is available from the United Nations website at <treaties.un.org>.

[47] The full text is available from the United Nations website at <treaties.un.org>.

[48] Geneva Protocol I, Article 51(1) and (2).

[49] Geneva Protocol I, Article 51(2).

[50] Geneva Protocol I, Article 51(6).

[51] Geneva Protocol I, Article 54(2).

[52] Geneva Protocol I, Article 53. Cultural objects are the subject of separate protection under the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954.

[53] Geneva Protocol I, Article 56.

[54] Geneva Protocol I, Articles 48 and 52.

[55] Geneva Protocol I, Article 35(2).

[56] Geneva Protocol I, Article 51(4) and (5). This expressly includes attacks which:

[57] Yves Sandoz, Christophe Swinarski, Claude Pilloud, Bruno Zimmermann, Commentary on the Additional Protocols to the Geneva Conventions, International Committee of the Red Cross (1987).

[58] Geneva Protocol I, Article 57.

[59] Geneva Protocol I, Article 47(1).

[60] Geneva Protocol I, Article 47(2).

[61] Aleksandr Gostev, Robert Coalson, ”Russia’s Paramilitary Mercenaries Emerge From The Shadows”, Radio Free Europe, 16 December 2016.

[62] Tanya Mehra, Abigail Thorley, “Foreign Fighters, Foreign Volunteers and Mercenaries in the Ukrainian Armed Conflict”, International Centre for Counter-Terrorism, 11 July 2022.

[63] The full text is available from the United Nations website at <treaties.un.org>.

[64] Geneva Convention III, Article 13.

[65] Geneva Convention III, Article 14.

[66] Geneva Convention III, Article 15.

[67] Geneva Convention III, Article 16.

[68] Geneva Convention III, Article 17.

[69] Geneva Convention III, Article 18.

[70] Geneva Convention III, Article 30.

[71] Geneva Convention III, Article 38.

[72] Geneva Convention III, Article 22.

[73] Geneva Convention III, Article 23.

[74] Geneva Convention III, Article 19.

[75] Geneva Convention III, Article 126.

[76] Geneva Convention III, Article 13.

[77] Geneva Convention III, Article 14.

[78] Geneva Convention III, Article 42.

[79] Jimmy Nsubuga, “Outrage as Russian Embassy in UK tweets call for Ukrainian fighters to be executed in ‘humiliating death’,” Yahoo News UK, 30 July 2022.

[80] “Video appears to show Russian soldier castrating Ukrainian prisoner”, The Guardian, 1 August 2022.

[81] The full text is available from the International Law Commission website at <legal.un.org/ilc/texts/7_1.shtml>.

[82] Telford Taylor, Nuremberg and Vietnam: An American Tragedy, The New York Times Group, 1970, at p.15.

[83] Shaun Walker, “Ukrainian court sentences Russian soldier to life in prison for killing civilian”, The Guardian, 23 May 2022; Chris Jenks, “Ukraine Symposium – The Atrocity Crimes Advisory Group & Ukrainian Prosecutions of Russian POWs – Part 1”, Articles of War, 22 June 2022.

[84] Pavel Polityuk, Tom Balmforth, “Russian soldier in Ukraine war crimes trial says he did not want to kill”, Reuters, 20 May 2022; “Lawyer asks Kyiv war crimes trial to acquit Russian soldier”, Times Malta, 20 May 2022.

[85] Patrick Jackson and James Waterhouse, “Ukraine war: Russian soldier Vadim Shishimarin jailed for life over war crime”, BBC News, 23 May 2022; “Ukraine jails Russian soldier for life at war crimes trial”, France 24 News, 23 May 2022.

[86] Gaiane Nuridzhanian, “Prosecuting war crimes: are Ukrainian courts fit to do it?”, EJIL:Talk! (Blog of the European Journal of International Law), 11 August 2022.

[87] Shaun Walker, “Ukrainian court sentences Russian soldier to life in prison for killing civilian”, The Guardian, 23 May 2022.