rf against-uk eng-29-12-2016 (1)

THE LEGAL ASPECTS OF CONTRACT RECRUITMENT OF RUSSIAN

CITIZENS, STATELESS PERSONS AND FOREIGN NATIONALS BY THE

RUSSIAN ARMED FORCES TO ASSIST AGGRESSION AGAINST UKRAINE.

UKRAINE’S POSSIBLE RESPONSES

Center for Army, Conversion, and Disarmament Studies

2017

This research was carried out by an expert group of the Center for Army, Conversion, and Disarmament Studies, within the work scope of the International Information Consor-tium Bastion, in order to develop a system for public opposition to Russia’s aggression against Ukraine

ecently, due to the need to maintain their hold on the occupied territories of Ukraine (the Autono-

mous Republic of Crimea, and parts of the Luhansk and Donetsk regions), as well as to carry out heavy military operations in Syria, Russian military and political leaders have faced per-sonnel problems – namely, a shortage of qualified military specialists to staff the detachments and units of invading and occupying forces.

At the early stages of conflicts in Ukraine and Syria, personnel gaps were largely filled by previously trained servicemen from special op-erations forces, as well as agents of the FSB (Federal Security Service), GRU GSh (Main Intelligence Directorate of the General Staff of the Russian Fed-eration), SVR (Foreign Intelligence Service), and other special services of the Russian Federation. As the con-flicts intensified, permanent losses mounted among Russian enforcement personnel and agents, and the scale and nature of missions changed, the staffing issue has become critical for

implementing the Kremlin’s aggres-sive plans.

Strategic operations against Ukraine implemented and planned by the Russian armed forces and other power structures in 2016, 2017, and onward, have already resulted in the creation of new major Russian mili-tary units in Crimea and at the east-ern borders of Ukraine, intensified military construction, and virtually ceaseless military exercises around Ukraine’s borders.

One of the priorities of the Russian military command is to achieve stra-tegic advantage by quickly increasing the Russian Armed Forces’ headcount, using all available human resources.

1. MOBILIZATION OF HUMAN RESOURCES OF THE RUSSIAN FEDERATION’S POWER STRUCTURES

The Russian leadership’s current and prospective plans require more personnel than can be provided by the battered special operations units, mo-tor rifle brigades, tank brigades, other units included in the battalion task

THE LEGAL ASPECTS OF CONTRACT RECRUITMENT OF RUSSIAN CITIZENS,

STATELESS PERSONS AND FOREIGN NATIONALS BY THE RUSSIAN ARMED

FORCES TO ASSIST AGGRESSION AGAINST UKRAINE.

UKRAINE’S POSSIBLE RESPONSES

R

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groups used for invasion, or the spe-cial forces units used against Ukraine in 2014-16. This is why recruiting maximum possible numbers of fresh personnel is one of the primary tasks for the Russian leadership. The follow-ing two courses of action are pursued to that end:• Expanding the contract recruitment

base for the Russian Armed Forces and other power structures, and ac-celerating the changes in the legisla-tion regulating military service in the Russian Federation;

• Preventing contract soldiers from refusing to participate in aggression against Ukraine, by ensuring harsh court prosecution of those who re-fuse.To expand the contract recruit-

ment base for the Russian Armed Forces and other power structures, legislative support is being provided on two levels:• improving and eliminating any le-

gal loopholes from the process of recruitment for Russian conscripts and military reservists with neces-sary military specialties;

• recruiting stateless persons and for-eign nationals who meet the criteria of the Russia MoD.To enable broad recruitment of

Russian citizens for contract military service, a legislative package has been prepared and submitted to the State Duma of the Russian Federation, ti-tled “On Introduction of the Draft of Federal Law “On Amendments to the Federal Law “On Conscription and Military Service,” N7742p-P4, dated

October 14, 2016 and signed by the Prime Minister of the Russian Federa-tion Dmitry Medvedev. This law draft introduces significant changes to the terms of contract military service. It would facilitate short-term contract recruitment (for periods less than one year, or even for a single mission) for Russian conscripts and reservists. The law draft is expected to be approved by the State Duma in the nearest future, seeing as by November 1, 2016, the State Duma Defense Committee had already recommended it to be adopted in the first reading.

The reasons for the mentioned amendments to the law are quoted as “…changes in the military and politi-cal situation, and intensified activity by international terrorist organiza-tion,” resulting in “the necessity for increased mobility of troops (forces), the creation of combined and irregu-lar detachments, and their expedited staffing by contract servicemen, to quickly accomplish short-term yet crucial missions related to participa-tion in peacekeeping operations and the fight against terrorist and extrem-ist organizations.”

It should be noted that at this time, the Russian legislation states that the first military contract with a conscript or another citizen entering military service for positions with the rank of soldier, seaman, sergeant, or ser-geant-major should be signed for two or three years, at the recruit’s discre-tion; and for positions with the rank of warrant officer, sub-officer, or of-ficer, for five years. These categories of

4 THE LEGAL ASPECTS OF CONTRACT RECRUITMENT OF RUSSIAN CITIZENS

people are allowed to sign a contract for a term between 6 months and one year only in case of “disaster relief or efforts related to a state of emergency, restoration of the constitutional order, and other extraordinary situations, or to take part in collective measures to maintain or restore international peace and security.”

Therefore, by adopting the men-tioned amendments, the Russian lead-ership will have grounds to legalize unlawful recruitment of conscripts for “short-term tours of duty” to Ukraine as contract soldiers, and have a for-mally legal way to recruit the neces-sary numbers of “volunteers,” “leave men” and “exercise participants” from among the “reservist mercenaries” contracted for one military or special operation.

For Ukraine, from the military point of view, this means that Russia will be able to very quickly deploy and use a large invasion and occupation army, under the pretext of Russian military detachments carrying out “peacekeeping operations” and “fight-ing terrorist and extremist organiza-tions.”

In addition to creating military advantages and cutting costs, the Rus-sian leadership may also be hedging against possible criminal liability for its decision to start an armed aggres-sion against Ukraine with the use of unlawful forces and means of warfare.

Significant changes have also been made to the procedure for contract recruitment and contract service in the Russian Armed Forces for state-

less persons and foreign nationals. On January 2, 2015, the Decree of the President of the Russian Federation N3 (effective from the date of publi-cation) introduced amendments to the document titled “Provision on the Procedure of Military Service” dated September 16, 1999. The amendments offer stateless persons and foreign nationals much more opportunity to join the Russian Armed Forces under contract (while their recruitment by Russia’s other power structures is pro-hibited).

Relevant amendments are also be-ing made to a number of bylaws that regulate military service in the Rus-sian Federation. Most prominently, the new version makes contract mili-tary service available to foreign na-tionals who are aged between 18 and 30 and “have not broken the law,” without the need to assume Russian citizenship. This includes active ser-vice, including operations abroad dur-ing “international conflicts.”

It is possible that this category of potential contract soldiers is receiv-ing special attention due to the Rus-sian leadership’s attempts to make up for the growing shortage of contract servicemen for large-scale covert and regular military operations that are currently being carried out or planned in Ukraine, Syria, and, quite possibly, other crisis regions, including Russia’s “partner states” within the CIS and the CSTO.

Russia’s military efforts require large numbers of trained and moti-vated servicemen, while Russia’s de-

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mographic situation tends to further decrease the size of its draft base. Meanwhile, Russian experts estimate that almost 25 million Russian-speak-ing people are potentially available for contract recruitment to the Russian Armed Forces from abroad (mainly from the CIS countries).

Another factor is the growing dis-content among the locals of many Russian regions, caused by the large casualties among the military and “volunteers” as a result of the Russian government’s gambles in Ukraine. Not even the heavy militarist propaganda is sufficient to cancel it out.

At the same time, large numbers of Russian-speaking migrant work-ers from the former USSR countries, who had lost their income during the recession, are viewed as poten-tially affordable and obedient “can-non fodder.” Countries of Central Asia and the Caucasus region, as well as the self-proclaimed “repub-lics” of South Ossetia, Abkhazia, and Transnistria, may indeed offer large numbers of people willing to become contract soldiers, consider-ing that the quality of life in these re-gions is low while unemployment is high, and Russian military bases are already present there.

Foreign experts believe that not many Russian-speaking people settled in Western Europe, the Middle East, or the USA will be willing to serve in the Russian army, since the payment and social benefits offered to Russian contract soldiers are low compared to the world standard. Because of this,

potential candidates for the Russian Armed Forces from the “far abroad” are likely to come from fringe groups, including nationalist and religious radical-extremist formations.

The number of non-Russian-speaking foreign nationals outside of the CIS who would study the Russian language with the explicit purpose of serving in the Russian Armed Forces under contract is considered to be very insignificant.

Military experts believe that these changes to contract service in the Russian Armed Forces are not aimed at creating detachments similar to the elite French Foreign Legion, with high standards of compensation, social benefits, and bonuses for foreign na-tionals (even though Russian recruit-ment organizations often make such promises). Rather, their purpose is only to expand the recruitment base for low-rank, entry-level jobs, paying the candidates low wages and not as-signing them to any positions requir-ing access to state secrets. Plus, there is no plan to create separate “foreign” detachments – rather, contract sol-diers with different citizenships would be distributed among regular Russian Armed Forces units.

Therefore, we can make the follow-ing conclusions about the bulk of Rus-sian Armed Forces’ potential contract recruitment base, at which the legisla-tive efforts of the Russian leadership are aimed:• firstly, these are Russian conscripts

and reservists, who would agree to high-risk, short-term contracts;


• secondly, these include large num-bers of citizens from countries in the Central Asia and Caucasus regions, as well as people from self-pro-claimed republics in the post-Soviet area, who already reside in Rus-sia for any reason, or plan to move there; as well as citizens of post-So-viet countries with Russian military bases, such as Moldova, Armenia, and Tajikistan;

• finally, and especially importantly for Ukraine’s national security, these efforts are also aimed at citizens of Ukraine who reside in Russia or in the occupied territory of Ukraine, to recruit them to contract service with the Russian Armed Forces.This considerably increases the

risk of conflict escalation in Ukraine at its current stage. In case of further expansion of armed aggression, this also opens up the possibility of vari-ous “national liberation armies” or “Ukrainian national detachments” created on the basis of the Russian Armed Forces.

For an example of such a situ-ation, we can look back at the Bol-shevist Russia aggression against Ukraine in the 1920’s, and at the So-viet-Finnish war.

During Soviet Russia’s repeated invasion into Ukraine in 1917-1920, “Ukrainian Soviet” armed formations were created in the occupied territory and in areas of rebellion in Ukraine. These formations acted directly on Moscow’s orders, while being formally subordinated to the “Ukrainian Soviet government” in Kharkiv. These regu-

lar formations included large numbers of ethnically Ukrainian Red Guard soldiers.

The Russian Federation’s plan of action today is strongly reminiscent of the Soviet-Ukrainian war of 1917-1920. After over 160 thousand troops were concentrated in the Kharkiv, Homel, and Bryansk regions in early December 1917, the Red Guard de-tachments from Petrograd and Mos-cow joined the local Red Guard groups and captured Kharkiv on December 22. As early as December 25, 1917, the so-called “All-Ukrainian Congress of the Soviets” was held in the occu-pied city, proclaiming the creation of the “Soviet Ukrainian People’s Repub-lic.” The government of the Ukrainian People’s Republic in Kyiv was declared “illegitimate,” and the Red Guard ad-vanced on Kyiv the very next day.

Another surge of Russian aggres-sion took place in November 1918. After power in Ukraine was seized by the Directory of Ukraine, Moscow proclaimed the creation of the “Provi-sional Workers-Peasants Government of Ukraine.” In December 1918, the regular forces of the Russian Soviet Federative Socialist Republic started a new advance on Kyiv, presenting it as actions of the “Ukrainian Red Guard.” Russia’s official government spoke of a “civil war” in Ukraine, a “struggle of Ukrainian workers against the UPR,” and, most importantly, of the “absence of Russian troops in Ukraine.” There-fore, according to Russia, there was a war in Ukraine between the UPR and the “Soviet Ukrainian People’s Repub-

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lic,” and “Russia was not party to the conflict.”

The Soviet-Finnish war of 1939-1940 saw the creation of Finnish “people’s” armed formations, formally subordinated to the so-called “Finn-ish Democratic Republic” (FDR), which was created by the USSR and proclaimed on December 1, 1939. Cu-riously enough, creation of the first corps of the so-called “Finnish Peo-ple’s Army” (FPA) began on Novem-ber 11, 1939, even before the start of the Soviet-Finnish war (November 30, 1939) and proclamation of the puppet “FDR.” The “FPA,” originally called the 106th Mountain Rifle Di-vision, was titled Ingermanland and staffed by Finnish and Karelian Red Guards from the troops of the Len-ingrad military district of the USSR. On November 26, the first corps of the “FPA” counted 13,405 military ser-vicemen, while at the end of the war, in February 1940, the number of the “FPA” was close to 25 thousand. The plan for the “FPA” was to act in the rear of the Soviet troops within the occupied Finland, and to eventually become the basis for the “sovereign” armed forces of the “FDR.” However, starting from late December 1939, the “FPA” was directly involved in combat operations against the Finn-ish Army. Its units took part in battles near Lunkulansaari and Vyborg, and carried out special operations and di-version in the Finnish rear: conduct-ing reconnaissance, mining transport routes, and destroying military and infrastructural objects.

Thus, the Soviet Russia, the USSR, and the Russian Federation as their successor have extensive experience in creating “people’s republics” and “democratic republics” with “people’s armies” and “national units,” with the aim of capturing other countries’ ter-ritories and establishing puppet gov-ernments.

At this time, the Russian leader-ship is attempting to make the most use of post-Soviet countries for its neo-Imperial interests. This is fur-ther apparent from the statement of Lt. General Yuri Netkachev, a Russian military expert, who voiced Russia’s interest in recruiting foreign con-tract soldiers due to the “changes in the geopolitical situation of the post-Soviet region, and clarified provisions of the Military Doctrine, according to which, Russia is creating a joint de-fense space together with a number of former Soviet republics.” This state-ment, combined with the attempt to implement the USSR-2 project, has al-ready caused a lot of concerns among the ruling circles of countries in the Central Asia and Caucasus region, as well as in Moldova.

We should note that if large num-bers of CIS citizens are recruited to contract military service in the Rus-sian Armed Forces, Russian leadership will receive strong military leverage against those countries, which can be used as part of its neo-Imperial policy, and for “hybrid” war waged through illegal armed formations, which can turn into open armed aggression of the Russian army at any point.


An additional and very real threat lies in the recruitment and training of foreign individuals and groups by Russian special services, to be used as extremists/terrorists (individually or as part of groups and organizations). The missions of these foreign recruits may include destabilizing the situa-tion in their own countries, or in other countries where special operations are being conducted.

Following the “controlled chaos” pattern, Russian special services may recruit these terrorist groups and or-ganizations to create an artificial in-flux of refugees from the conflict area to Western European countries and other competing states, thus under-mining their domestic security and socioeconomic stability.

The potential increase of this risk can be seen from increasing numbers of Russian and CIS militants that take active part in the extremist and ter-rorist acts of ISIS (the Islamic State) in Syria and Iraq, and of the Taliban in Afghanistan; as well as from partici-pation of Russian and Serbian citizens in the preparation of terrorist attacks in Montenegro in October 2016. The Soufan Group, a US consulting com-pany providing intelligence services to governments and international or-ganizations, has identified over 2,400 Russian militants (mainly of Chechen and Dagestan origin) and 1,000 mili-tants from Uzbekistan and Kyrgyzstan operating in Syria.

The Combating Terrorism Center in West Point, USA, has also identified at least 141 Russian militants, 72 mili-

tants from Uzbekistan, and 47, from Kyrgyzstan.

Militants from the CIS countries even hold leadership positions in ISIS: such as one of its militant chiefs in Syria, Gulmurod Khalimov, former officer and head of the special forces police in Tajikistan, who took his post in July 2016 after the death of his pre-decessor Russian Chechen Omar al-Shishani (Tarkhan Batirashvili).

Colonel Khalimov’s biography pre-sents a lot of interesting facts about his service, special training, and his start with ISIS.

We know that Khalimov has a long service record with the Tajik power structures. In 1997, he started service in the Presidential Guard of Tajikistan, commanded by the local crime boss, and later Lt. General Gauor Mirzoyev. The latter’s career, ever since 1992, has been closely connected with the Pop-ular Front of Tajikistan, created with the help of Russian special services to fight against the Islamic opposition. This “Front,” in turn, was headed by another henchman of Russian special services, crime boss Sangak Safarov (also known as Bobo Sangak), who spent 23 years in prison and, when speaking in the national parliament in November 1992, promised “restora-tion of the Soviet Union.”

It merits separate note that during escalation of the confrontation be-tween the post-Soviet administration and the opposition forces in Septem-ber 1991, a Russian conflict regulation group arrived in Dushanbe, the capital of Tajikistan. The group, in addition to

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Anatoliy Sobchak, Alexander Yanov, and Yevgeniy Velikhov, included the future FSB head and Russian presi-dent Vladimir Putin. With the help of Russian special services and the military, this group successfully estab-lished a post-Communist dictatorship headed by Emomali Rahmonov, for-mer director of a middling Lenin State Farm. A “Popular Front” was hastily put together for Rahmonov’s admin-istration, with key positions occupied by crime bosses kept on the hook by Russian special services. Weapons and instructors for Rahmonov’s rule were supplied from Russia’s 201st motor rifle division, which currently has the status of a Russian military base.

Under the management of these “authorities,” Gulmurod Khalimov successfully ascended through the ranks of the Tajik law enforcement, completed several anti-terrorist train-ing courses in the USA, and did a uti-lization tour in Russian specialized centers in 2003. Until April 23, 2015, he had served successfully in the law enforcement system, including a three-year spell as the head of an elite special force police unit, and received the rank of a Police Colonel.

Following that, the news of Khali-mov’s new “appointment” as an ISIS militant leader in Syria was all the more incredulous. This is likely a typical scenario for the deployment of Russia-controlled militants in the region.

In this context, there exists a pos-sibility of the reincarnation and mass training of militants for Kurdish or-

ganizations, as well as for other illegal military groups in Asia, Africa, and Latin America, which were receiving military and special training at Soviet military facilities during the USSR times.

The USA and Western Europe, in-cluding Germany, France, Great Brit-ain, and Spain are at the risk of seeing a new wave of externally-orchestrated extremist acts and terrorist attacks carried out by Islamist terrorists, Irish and Spanish separatists, and other ex-tremists. Evidence of this being pos-sible can be seen from the results of the large-scale anti-terrorist operation carried out by German special servic-es on October 25, 2016 in five federal states of Germany: Thuringia, Ham-burg, North Rhine-Westphalia, Sax-ony, and Bavaria. The operation had resulted in the arrest of 13 Russian citizens of Chechen ethnicity, with links to the clan of Ramzan Kadyrov, the pro-Russian head of the Chechen Republic. The arrested, ten men and three women aged between 20 and 30, arrived to Germany in the guise of refugees and were preparing to carry out terrorist acts presented as “attacks by ISIS.”

Preventing contract soldiers from refusing to participate

in the aggression against Ukraine by ensuring harsh court prosecution

of those who refuse.High casualties among the con-

tract personnel of the Russian Armed Forces had resulted in the widespread avoidance of “tours to the Ukrainian


border” by Russian military person-nel. The 12th Reserve Command of the Russian Armed Forces (currently known as the Center of the Territorial Forces of the Southern Military Dis-trict, Novocherkassk, Russia) is con-sidered one of the worst assignments.

The Center of the Territorial Forces of the Southern Military Dis-trict was specifically created in the second half of 2015 to “officially de-ploy” (i.e. legendize) Russian military servicemen to the “LNR” or “DNR” as alleged armed “miners” and “trac-tor drivers” who “volunteered” to perform their duty in defense of the pseudo-republics. The names and military documents of the service-men identified them as associated with the “LNR” or “DNR.”

The Center’s organizational struc-ture matches the staffing structure of the 1st Army Corps (Donetsk) and the 2nd Army Corps (Luhansk).

The logic and practical execution of this assignment are more reminis-cent of special services than the mili-tary. Officially (from the legal stand-point), servicemen are assigned to the Center of the Territorial Forces. In reality, they are part of units and de-tachments of the Center’s 1st and 2nd Army Corps, which are engaged in combat in the Donetsk and Luhansk regions of Ukraine.

Those servicemen who try to avoid serving in the Center of the Territorial Forces invariably find themselves on the receiving end of the government’s repressions. In an attempt to suppress any resistance, Russian courts fast-

track resolutions to discharge from military service and convict such ser-vicemen. To this end, they use provi-sions of the Federal Law “On Con-scription and Military Service” that regulate contract military service, es-pecially the duty to “perform all gen-eral, official, and special obligations.”

A number of servicemen have al-ready become victim of the Russian court system on charges of violating their contract terms – that is, refusing to accept placement in the 12th Com-mand and carry out unlawful orders by engaging in combat in Ukraine. Among them are former Russian military servicemen A. Stolyarov, A. Kislenko, and M. Zakharov. Another military serviceman, K. Kanaply-anyk, officer of the 18th separate mo-tor rifle brigade, attempted to avoid a compulsory “tour of duty” to Ukraine by contesting Order of the Minister of Defense N 0049 of 22.02.2015 in court, but was threatened with pros-ecution and forced to follow the un-lawful order.

Typically, Russian courts’ verdicts and resolutions do not quote the real reason for dismissal or penalty, and any mention of Ukraine is strictly for-bidden during proceedings.

For example, Russian citizen A. Stolyarov addressed the Zaozersk Garrison Military Court (Murmansk region) with a request to declare un-lawful his superiors’ decision to dis-miss him early due to his alleged vio-lation of contract terms.

In this application, the plaintiff states that he would like to continue

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military service, and that the review board’s negative assessment of him was based solely on his refusal to ac-cept assignment in the 12th Com-mand of the Russian Armed Forces.

The court, referencing Article 32 of the aforementioned Federal Law, issued their resolution in case N 2-268/2015 of July 25, 2015, noting that “the refusal to accept assignment constitutes sufficient grounds for early dismissal,” and refused Stolyarov’s re-quest to declare his superiors’ treat-ment of him as unlawful.

The Kaliningrad Garrison Military Court passed a similar resolution in case N 2-215/2015 on June 3, 2015, re-fusing to satisfy the claim of a former military serviceman (whose data has been redacted to cover up the court’s iniquity) to declare unlawful his early dismissal, which had resulted from his refusal to accept an assignment: formally, as an officer of the 5th de-partment in the 12th Command of the Southern Military District; in reality, as a commander of one of the detach-ments of the 5th separate motor rifle brigade (Makiivka) in the 1st Army Corps (Luhansk).

Another representative example of how the 12th Command is staffed is case N 2A-470/2015, reviewed by the Grozny Garrison Military Court fol-lowing the claim by military service-man Andrey Kislenko. In his claim, Kislenko states that after a lengthy pe-riod of service in the Chechen Repub-lic, he addressed his superiors with a request for routine replacement. The superiors offered him a choice

of transfer: the 136th separate motor rifle brigade stationed in the moun-tainous area of the Republic of Dag-estan (an area with increased threat of sabotage and terrorism) or the 2nd department of the 12th Command of the Southern Military District (de facto, a tour to the 2nd separate motor rifle brigade of the 2nd Army Corps (Luhansk). Understandably, Kislenko refused both offers and demanded an early dismissal from military service. After reviewing the case, the court de-clared that the superiors had commit-ted no violations against Kislenko that would entitle him to early dismissal.

The mechanism for compulsory staffing of the Russian Armed Forces units engaged in combat in the tempo-rarily occupied territory of Ukraine is also clearly seen in case N 2-99/2015, reviewed by the Krasnorechensk Gar-rison Military Court following the claim of unlawful dismissal made by former military serviceman M. Zakharov. Zakharov had been offered promotion to an officer in the 4th de-tachment of the 12th command – in reality, a commander of one of the detachments of the 4th separate mo-tor rifle brigade (Alchevsk) in the 2nd Army Corps (Luhansk). The offer stat-ed that the serviceman’s high profes-sional credentials and commendable moral qualities were valued by the unit command and made him suit-able for his duties in the higher rank. When the officer refused this “bless-ing” and requested to be dismissed upon expiration of his contract, the military unit’s review commission


reversed their assessment of him to a polar opposite, stating that he was un-fit even for his current position, and ruled to “dismiss [Zakharov] early due to contract violation.”

Thus, Russia has created a formally legal mechanism under which refus-ing an assignment in the 12th Reserve Command of the Russian Armed Forces (later, the Center of the Terri-torial Forces of the Southern Military District) results in an early dismissal “due to contract violation” for those Russian military servicemen who are unwilling to engage in combat in the Ukrainian territory and kill Ukrainian servicemen or civilians.

Nevertheless, this situation (the unlawful dismissal of military service-men) is not hopeless, since members of the Russian Armed Forces dismissed in this manner become entitled to contest the falsified resolutions of the Russian justice system in the Europe-an Human Rights Court in Strasburg and the International Criminal Court in The Hague. In fact, they are within their rights to demand considerable fi-nancial and moral compensation from the Russian state.

For more examples of such pros-ecution, we can look to the court cases against contract servicemen of the 33rd separate motor rifle brigade, military unit 22179 of the Russian Armed Forces (Maikop), who cat-egorically refused to take part in ag-gression against Ukraine, and in late September – mid-November 2014 went absent without leave from the training grounds in the Rostov region

of Russia, which is located near the state border of Ukraine.

The Maikop Garrison Military Court ruled that contract servicemen who refused to engage in combat in Ukraine will be convicted to incarcera-tion in penal colony for terms ranging from 6 to 18 months – despite the fact that the servicemen had filed official let-ters of resignation, which were ignored by their superiors. In those letters of resignations, the contract servicemen stated the reasons for termination of their contract: “inhumane service con-ditions” and “persistent offers to serve in Ukraine as part of the illegal armed formations LNR and DNR.”

The testimony of Sergeant Panel Tinchenko (arrested in 2015 under Article 337, part 4 of the Criminal Code of the Russian Federation, “Un-authorized Leave from Unit”) states, “After studying the court’s resolution, I must conclude that it does not re-flect my testimony in the part of my “failure to fulfill my order.” I refused to fulfill an unlawful order, because I was unwilling to violate my military oath and engage in combat in the territory of Ukraine. Please include this note in the court resolution.”

Nevertheless, according to the of-ficial version of the investigation, the contract servicemen in question “were unwilling to bear the hardships of mil-itary service,” resulting in the proces-sion of criminal cases under Article 337, part 4 of the Criminal Code of the Russian Federation, “Unauthor-ized Leave of Unit,” and Article 338 “Desertion.”


Another typical example is the resolution to accuse Private Ivan Shevkunov: “On 30.09.2014, Private I. N. Shevkunov, while being a service-man in contract military service, and while being on official tour of duty to the “Kadamovsky” training ground with his detachment, stationed in the Oktyabrsky (rural) district of the Ros-tov region, being displeased with his assignment outside of Maikop and the Republic of Adygea, and unwilling to bear the hardship and severity of military service … left without leave from his place of service, namely, the “Kadamovsky” training ground, and departed to his place of residence.”

According to the statistics of the Maikop Garrison Military Court, 62 servicemen were convicted under Ar-ticle 337 of the Criminal Code of the Russian Federation in the first half of 2015 alone. By comparison, the num-ber of such convictions in the five years between 2010 and 2014 was 35.

Among the persons convicted by the Maikop Garrison Military Court in 2015 were: Sergeant Khabokhov, Junior Sergeants Yevenko, Yenenko, Sychev, and Devchev; Corporal Aga-janyan; and Privates Kudrin, Shevku-nov, Yefimov, Romanov, and Sergeyev.

Most contract servicemen received verdicts with suspended sentences or sentences with subsequent amnesty “to celebrate the 70th anniversary of Victory in the Great Patriotic War.”

Typically, most servicemen under investigation were clearly afraid to give true testimony. Almost none of them contested the final verdict, and

during the trial, resorted to Article 51 of the Constitution of the Russian Federation, which states that “no one can be made to testify against them-selves.” The main reason for that is heavy intimidation by investigators and special services, who threaten the accused with hard time in standard penal colonies, should they disclose the real reasons for their leave from the “Kadamovsky” training grounds. Namely, the mentioned contract ser-viceman Pavel Tinchenko was threat-ened with a lengthy prison sentence. He was the first one to give truthful official testimony about the attempts to send the servicemen to the DNR, about the forms that persuasion took, and why he refused to follow an un-lawful order. According to him, “…people from different power struc-tures came to my cell, and promised me up to 13 years of prison if I don’t recant my testimony.”

At the same time, the Criminal Code of the Russian Federation cur-rently in effect states that “if a person following an order was aware of the order being unlawful, they become complicit in the crime, with the su-perior being held as the organizer of the crime, and the subordinate, the executor.” This is further proof that all Russian military servicemen falsely prosecuted for refusing to follow un-lawful orders and engage in combat in the territory of Ukraine have the right to contest the court verdicts in Rus-sian courts as well as in the European Human Rights Court and the Interna-tional Criminal Court.


Moreover, Article 33 of the Rome Statute of the International Criminal Court (July 17, 1998) provides for the “intelligent bayonet” doctrine in in-ternational law. According to it, “sub-ordinates have to appreciate the legal-ity of orders given by their superior, and are liable for following obviously unlawful orders. If an unlawful order was followed due to physical or moral coercion, the subordinate may be held not liable.” Thus, military servicemen can refuse to follow unlawful orders, and this may be part of the reason why the Russian Federation still refuses to recognize the jurisdiction of the Rome Statute of the International Criminal Court.

Therefore, in their wish to please the Russian leadership and cover up the Russian Armed Forces’ participa-tion in the armed aggression against Ukraine, the Russian Federation’s ju-dicial bodies are committing gross vi-olations of international and national laws.

Russian judicial authorizes are bla-tantly manipulating the law, and there is no possibility of a fair outcome for cases related to Russia’s covert aggres-sion against Ukraine. With this in mind, it would be feasible to provide some recommendations to service-men of the Russian Armed Forces and other Russian power ministries who are being coerced to commit unlawful acts and military crimes in the terri-tory of Ukraine.

Specifically, according to the stat-utes currently in effect, military ser-vicemen are obligated to follow lawful

orders. Most orders must be given in writing. In case of any doubt, a mili-tary serviceman should demand a written order from their superior. Otherwise, the subordinate becomes a war criminal. An example of that would be the actions of the Russian crew operating the BUK anti-aircraft missile system that had destroyed the Malaysia Airlines Flight MH17 air-craft over the Ukrainian territory, re-sulting in the deaths of 283 innocent civilians (including 80 children), and turning members of that crew war criminals.

However, with an understanding that events in Ukraine are being or-chestrated by the top leaders of the Russian Federation, Russian military servicemen have another way to pro-tect themselves in the future trials – by collecting proof of being coerced into following unlawful orders and engaging in combat in the territory of Ukraine. Such proof can be:• originals and photocopies of battle

orders and instructions that confirm their unlawful nature, including let-ters of assignment;

• video and audio recording of their superiors issuing orders on tours of duty to Ukraine and assigning mis-sions in the territory of Ukraine;

• documents used for cover-up (leg-endizing) of Russian military ser-vicemen for missions in Ukraine;

• maps and schemes of military opera-tions and of Russian troop locations in the Donetsk and Luhansk regions;

• documents confirming the supply of weapons and military equipment


from the Russian Federation, and other documents related to logisti-cal support of the 1st and 2nd Army Corps of the Central Territorial Command of the Southern Military District of the Russian Federation;

• other documents.It is worth remembering that

while the Russian judicial authori-ties are fully controlled by the state government, military servicemen can use such documents (especially bat-tle orders, maps, and charts) to seek political asylum in Ukraine and other foreign states (including the EU and the USA). To do that, they have to contact representatives of relevant in-ternational organizations, or the state authorities of Ukraine or other foreign states. Such organizations and author-ities would be able to provide them with legal aid and financial assistance, and implement a witness protection program.

For example, programs are cur-rently underway to protect witnesses of the destruction of the flight MH-17 aircraft by the Russian military, and provide them with legal and financial assistance.

2. LEGAL ASPECTS OF RUSSIAN AND THIRD-COUNTRY NATIONALS PARTICIPATION IN THE ACTIVITIES OF THE RUSSIAN ARMED FORCES AND ILLEGAL ARMED FORMATIONS IN THE TERRITORY OF UKRAINE – ANALYZED BY PHASE OF CONFLICT.

The Russian legislation emphasizes “the need to adhere to international

and national law during participation in international military operations,” while in December 2015, the State Duma of the Russian Federation has declared “supremacy of the national legislation of the Russian Federation over international law.” With this in mind, it would be feasible to analyze the legal situation at different phases of Russian aggression against Ukraine.

The initial covert phase: conflict preparation and deployment,

February – July 2014The main legally relevant facts are

as follows:• illegal invasion of Russian mili-

tary detachments to the territory of Ukraine, in violation of the UN Charter and other major interna-tional laws. Russia has violated (dis-regarded) international agreements and treaties regulating international security, preservation of statehood, and the protection of independence and territorial integrity of sovereign states (UN Charter / Chapters I, VI, VII, VIII; Helsinki Final Act, 1975; Memorandum on Security Assur-ances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weap-ons (Budapest Memorandum), 05.12.1994);

• violation (disregard) by Russia of interstate treaties and agreements with Ukraine (Agreement between the Russian Federation and Ukraine on the Status and Conditions of the Russian Federation Black Sea Fleet’s Stay on Ukrainian Territory,


28.05.1997; Treaty on Friendship, Cooperation, and Partnership be-tween Ukraine and the Russian Fed-eration, 31.05.1997; Treaty Between the Russian Federation and Ukraine on the Russian-Ukrainian State Bor-der, 28.01.2003);

• annexation of the Autonomous Re-public of Crimea, involving the use of Russian military detachments without insignia on uniforms and machinery, in violation of interna-tional law on the rules of warfare;

• large-scale infiltration of armed citi-zens of the Russian Federation to the territory of Ukraine and their ter-rorist activities within the sovereign territory of Ukraine, in violation of international laws and the Criminal Code of Ukraine.The distinguishing features of this

phase include:• the Russian leadership’s official and

absolute denial that military service-men of the Russian Armed Forces and other armed formation are en-gaged in combat in the territory of Ukraine;

• the use of operational units of the Main Intelligence Agency of the General Staff of the Armed Forces of the Russian Federation (GRU GSh), the Federal Security Service (FSB), and the special forces of the GRU GSh in the territory of the Autono-mous Republic of Crimea; as well as the use of units of the Black Sea Fleet of the Russian Federation, forces and reinforcements from the South-ern Caucasus and other regions of the Russian Federation;

• the use of “useful idiots” and mer-cenaries from Russia and other countries, including Serbia, France, Spain, Brazil, etc. The bulk of Russian mercenaries is made up by members of nationalist and neo-Nazi groups, employees of foreign private mili-tary companies, and members of private security structures. Most of foreign militants consist of members of Serbian ultra-nationalist groups. These militants have no formal links to the Russian state military;

• Russia’s use of specific terms to re-fer to its combatants: “volunteers,” “internationalists,” “servicemen on leave,” “militia,” “miners and tractor drivers,” “lost servicemen,” “patriots of the Russian World,” etc.Thus, there are no international

legal grounds for Russian Federation’s intervention in Ukraine’s affairs. There is a gross violation of international law, including the UN Charter, the OSCE Charter, and other internation-al agreements, including the bilateral Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation.

At this stage, Russia’s main gamble was on covert action, blanket denial of uncovered facts on all official levels, the use of its influence in the UN and the OSCE, and powerful information and propaganda attacks.

The following laws and bylaws of the Russian Federation are used to sup-port the use of Russian power structures against Ukraine:• current decisions made by the Rus-

sian higher military-political com-


mand, including the Security Coun-cil of the Russian Federation headed by the Russian President, are the leading factor for escalating aggres-sion against Ukraine. In this context, the Security Council and the Presi-dential Administration bodies are the defining and strategic control-ling bodies, while the government plays a secondary role;

• resolution of the State Duma per-mitting the President of the Russian Federation to deploy the Russian Armed Forces in the territory of Ukraine;

• the principal legislation of the Rus-sian Federation regulating military service, including the Federal Law N53-FZ of March 28, 1998 “On Conscription and Military Service,” and amendments to the “Provision on the Procedure of Military Ser-vice,” of September 16, 1999, adopt-ed by Decree of the President of the Russian Federation;

• agency-level Decrees, regulations and instructions of the Ministry of Defense of the Russian Federation, including branches of the Armed Forces, GRU GSh, FSB, Foreign In-telligence Service (SVR), Ministry of Internal Affairs, Ministry of Emer-gency Situations, and other state bodies. Responses to the violation of inter-

national and national laws:International response: formal

condemnation of the violation of in-ternational law, and standby for fur-ther developments; UN and OSCE structures are paralyzed by Russia’s

strong influence in the UN Security Council and the OSCE.

Official response of the Russian leadership: the rules of law are used to support aggression, while criminal liability for terrorism, extremism, and mercenarism applies only to citizens who support Ukraine.

Social response in Russia: propaga-tion of the cult of the “polite people” dressed in uniforms without insignia, who “efficiently” solve problems. Over-all, despite isolated protests, the public believes that annexation of the Au-tonomous Republic of Crimea and the start of military operations in the so-called “Novorossiya” are signs of Rus-sia’s reviving national might. Russian citizens in contract military service, as well as reservists with military training (including employees of many private security firms) view taking part in the occupation of Ukraine as a quick and not overly dangerous way of making money. Due to powerful propaganda, the question of legality of Russia’s in-tervention practically does not arise within Russia, and does not deter peo-ple from military service and from tak-ing part in the occupation of Ukraine.

Failure of the covert phase of Russia’s aggression against

Ukraine in late July-August 2014Facts affecting the legal status of

the conflict parties:• destruction of the Malaysia Airlines

Flight MH-17 Boeing-777 passenger aircraft by an anti-aircraft system of the Russian Armed Forces Air De-fense;


• direct admittance of the use of the Russian Armed Forces in the an-nexation of Crimea by the Russian President in his interview with the German channel ARD (November), rationalized by a distorted presen-tation of the legal precedent of Ko-sovo’s autonomy (which is not offi-cially recognized by Ukraine);

• direct use of regular units of the Russian Armed Forces against the Ukrainian military in some parts of the Donetsk and Luhansk regions; violation of the rules of warfare and the Hague Convention in the terri-tory of Ukraine by Russian Armed Forces and illegal armed formations controlled by Russia;

• introduction of political and eco-nomic sanctions against Russia by Ukraine’s allies;

• due to high Russian casualties, the undeclared war in Ukraine is becoming less popular in Russia, which results in small-scale but sig-nificant protests and anti-military activism in the society.

Escalation of the armed conflict in January-February 2015, large-scale

deployment of battalion tactical groups of the Russian Armed Forces in Ukraine to

strengthen the pseudo-republicsLegally relevant facts:

• illegal invasion of Russian Armed Forces to the territory of Ukraine in order to capture Debaltseve, in violation of the UN Charter, other fundamental international laws, and Minsk 2 Agreements;

• illegal supplies of weapons and am-munition, and assignment of the personnel of Russian Armed Forces to the units of illegal armed forma-tions;

• amendment by the Russian Presi-dent of the “Provision on the Proce-dure of Military Service” to set the terms for military service by foreign nationals and stateless persons aged 18 to 30 in the Russian Armed Forc-es, and their participation in combat operations, including abroad, “dur-ing international conflicts.”

Controlled escalation of the conflict – since March 2015

• unlawful military operations by the Russian Armed Forces and illegal armed formations in the territory of Ukraine, as part of a low-intensity conflict;

• further illegal supplies of weapons and ammunition, and assignment of the personnel of Russian Armed Forces to the units of illegal armed formations;

• de facto illegal formation of the mil-itary groups, so-called “LNR” and “DNR” by the Russian Federation in the sovereign territory of Ukraine, in violation of international law and the Criminal Code of Ukraine.

• elimination of the remaining for-mal legal restrictions in December 2015, when the Russian State Duma rejected the supremacy of interna-tional law (one of the principles and imperative norms of international law) in the national legislation of the Russian Federation. This allows


Russia to “legitimately” disregard the obligations it had undertaken (under its signed and ratified inter-national agreements and treaties), as well as the norms and standards implemented into Russia’s domestic (national) legislation “…if they are in conflict with Russia’s national in-terests;”

• drafting of the new version of the Federal Law N 53-FZ of March 28, 1998 “On Conscription and Mili-tary Service” in October 2016, to expand recruitment of contract ser-vicemen under short-term contracts and allow for quick deployment of conscripts in international conflicts when necessary.Overall, analyzing the current le-

gal situation, we can conclude the fol-lowing:

Since the very start of the conflict in the territory of Ukraine, the Rus-sian Federation’s actions bear signs of war crimes under international law and criminal offences under the na-tional legislation of Ukraine.

In order to avoid legal prosecution for their crimes, the Russian lead-ership is continuously seeking new forms and methods of cover-up, mis-information and deception, aimed at the international community and its own citizens, during contract recruit-ment of Russian servicemen (includ-ing conscripts of required specialties who “suddenly” sign contracts under duress), as well as of Russian and for-eign mercenaries, to be part of illegal armed formations.

To this end, the Russian legisla-

tion is being continuously amended, in line with the decisions made by the top leadership based on their analysis of the current and forecasted situa-tion.

In the context of international law, this includes rejection of the su-premacy of international law, inter-fering with the work of international courts related to war crimes, and re-fusal to recognize the legitimacy of such courts. In the context of Russian national law, this includes adopting laws and bylaws that serve the needs of military planning and the use of the Russian Armed Forces and other pow-er structure, including the enabling of military contract recruitment of many Russian citizens, stateless persons, and foreign nationals.

3. POSSIBLE LEGAL MEANS TO COUNTERACT, CONDEMN, AND SUPPRESS THE RUSSIAN FEDERATION’S AGGRESSION AGAINST UKRAINE

Considering the accelerated pace of amendment of the Russian Federa-tion’s laws on contract military ser-vice, and based on our analysis of the legal aspects of the use of Russian citi-zens and foreign nationals in the Rus-sian Armed Forces and illegal armed formations in the territory of Ukraine, we suggest a number of legal measures to counteract and condemn Russia’s aggression.

Within the Russian Federation, any actual opposition media outlets, advocacy groups and foundations have been almost entirely suppressed


and replaced by surrogate “human rights” and “servicemen rights” or-ganizations, controlled by the Russian special services. Considering this, it is pointless to appeal to the representa-tives of the fake Russian “opposition” and “advocacy groups” while calling for a cessation of Russia’s aggression against Ukraine.

Instead, it would be feasible to call for representatives of reputable inter-national organizations to take part in documenting of the Russian Federa-tion’s war crimes in Ukraine. This in-cludes official and non-governmental organizations, such as the United Na-tions, OSCE, Human Rights Watch, Transparency International, Medecins Sans Frontiers, and other reputable organizations, as well as international courts of different competence.

With proper protection and in-centive programs, Russian witnesses of war crimes can be involved in the process. Their testimony can be very important in the future trials against Russian war criminals, similar to the Nuremberg trials and the internation-al criminal tribunal for the Yugoslavia.

This course of events is entirely possible, especially judging from the recent activity of the International Court of Justice in The Hague, and the official recognition of the Rus-sian Federation’s aggression against Ukraine on November 14, 2016.

In this legal context, the crimi-nal organizations should be defined similarly to the national-socialist or-ganizations in WW2 Germany and the criminal units of the Republic

of Serbian Krajina commanded by the Serbian General Ratko Mladic. In the case of Russia, their coun-terpart is the Center of Territorial Troops of the Southern Military Dis-trict, as well as its previous form, the 12th Reserve Command of the Rus-sian Armed Forces, created and in-tended for armed aggression against Ukraine. There are also criminal ac-complices and collaborators: occu-pation authorities and “officials” of the occupied Autonomous Republic of Crimea and the so-called pseudo-republics of “DNR” and “LNR.”

Therefore, according to national and international laws:• The Russian Federation’s aggres-

sion against Ukraine is unlawful and criminal both under interna-tional law and the national laws of Ukraine. All accomplices of the ag-gression will be exposed publicly;

• Even under the “edited” 2015 and 2016 versions of the Russian legis-lation, participation of Russian citi-zens, stateless persons, and foreign nationals in unlawful operations within the territory of Ukraine as part of their contract military ser-vice constitutes a war crime without statute of limitation;

• Participation of any Russian mili-tary servicemen in combat in the territory of Ukraine constitutes a crime even under Russian laws, es-pecially prior to December 2015. After the change of regime in the Russian Federation, these war crim-inals will be convicted, and denied entry to the EU, USA, Canada and


most civilized countries for the rest of their lives;

• Members of the “government” in the Autonomous Republic of Crimea and the so-called “DNR” and “LNR,” as well as members of illegal armed formations are criminal offenders under Ukrainian and international laws. They are puppets of the Rus-sian Federation’s leaders, who do not make any independent deci-sions and will face criminal liability. All real power and responsibility for the crimes and the overall situation in the occupied territory of Ukraine lies with the Russian Federation’s leaders, including the “assigned” generals and officers and other ser-vicemen of Russia’s power struc-tures;

• The future will see an international tribunal (similarly to the Nurem-berg trials and the international criminal tribunal for the former Yugoslavia), convicting all leaders and other servicemen of the Russian Armed Forces, including foreign contractors, who took part in the occupation of Ukraine;

• All servicemen of the Russian Armed Forces, other citizens of the Russian Federation, and foreign members of illegal armed formations, who are found to be in Ukraine illegally, will be held liable under the Internation-al Convention against the Recruit-ment, Use, Financing and Training of Mercenaries;

• All servicemen of the Russian Armed Forces who refused to follow unlawful orders of their command

can count on amnesty and legal as-sistance when necessary. In this is-sue, Ukraine is closely collaborat-ing with the opposition democratic forces of the Russian Federation, non-governmental organizations (including regional departments of the Committee of Soldiers’ Moth-ers of Russia) and progressive Rus-sian cultural, creative, and academic figures (Andrey Makarevich, Boris Akunin, Vladimir Voinovich, and others);

• Servicemen of the Russian Armed Forces who had refused to engage in combat against Ukraine are true heroes who abided by their consti-tutional duty and refused to follow unlawful orders. They should be held up as an example for all other Russian servicemen;

• All Russian and foreign artists, cul-ture workers and members of non-governmental organizations who are unlawfully present in the occupied territory of Ukraine are in violation of the law; and those of them who promote war against Ukraine and advertise the criminal acts of mer-cenaries and Russian servicemen in Ukraine are criminals and will be prosecuted under international and Ukrainian law (in the form of trials, sanctions, and denied entry to Ukraine and most of the world countries);

• Ukraine calls on all ethnic Ukrain-ians, Russians, citizens of CIS coun-tries and other foreign nationals to abstain from taking part in the un-lawful war against Ukraine, and to


show support for the Ukrainian peo-ple’s democratic choice by various means, including events and rallies in their countries. If contract service in the Ukrainian army for foreign nationals becomes a widespread practice, the contract terms offered by Ukraine will be superior to those offered by the Russian Federation;

• Ukraine is consistently striving to-wards the resolution of the conflict and the removal of all occupation forces from the Ukrainian territory, including the Autonomous Repub-lic of Crimea; it also supports the deployment of international peace-keeping forces and holding of honest elections in the liberated territories in accordance with Ukrainian law.The suggested list of measures to

counteract Russia’s aggression at the level of international and national law is not exhaustive, and will be continu-ously updated, in line with the new facts uncovered by the Ukrainian state au-thorities and the results of investigations conducted by international official and non-governmental organizations.

Counteracting Russia’s infor-mation aggression is only possible through close cooperation with in-formation resources and specialized structures of NATO, including the NATO Strategic Communications Centre of Excellence in Riga, Latvia, as well as those of other democratic countries. Our joint work must be directed and coordinated, in order to not only debunk the current informa-tion attacks by Russia, but also prevent and actively counteract future attacks.

It is also crucial to join the efforts of official state structures working in the field of information warfare with those of NGOs in Ukraine and other coun-tries, such as the International Informa-tion Consortium Bastion, an interna-tional non-governmental organization created in June 2016, which closely co-ordinates its efforts with relevant bodies of the National Security and Defense Council of Ukraine and other Ukrain-ian power structures. The objective of IIC Bastion is to counteract Russian propaganda, join efforts to monitor the media landscape, and discover and pre-vent the spread of Russian propaganda.

To sum up our assessments above, we should note that among the key factors impacting Ukraine’s national security are the awareness of, and adequate response to, the legislative measures carried out by the Russian leadership to strengthen their power structures, which include increasing the number of units and personnel of the Russian Armed Forces, persecut-ing those who refuse military service, and ignoring international and na-tional law.

Joint structures in the field of stra-tegic communication and informa-tion warfare should be created and supported on the levels of states and ministries, and work in close coopera-tion with relevant non-governmental organizations.

Effective work in this direction also requires close coordination and cooperation with respective bodies of Ukraine’s allies, primarily the USA and other NATO members.

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