Draft refugee in Ukraine: the Italian Court of Cassation confirms the existence of war crimes

(To Avv. Marco Valerio Verni)
15/03/22

When we talk about wars, as far as it is legitimate to deduce from the news of these weeks, we end up considering some of them important, forgetting others.

And, within the former, there is sometimes a media distortion which brings to light, rightly, the possible crimes committed by one of the parties in the conflict, not considering, or pretending to forget, those perhaps also made by the other: with the result not only of altering the perception of where the balance point can be between the respective reasons of the aforementioned, but also of continuing to ignore, or, worse, to justify, any criminal actions of the party who, for the above, ends with being considered the one to be supported regardless.

The reference, of course, is to what is happening in Ukraine, with the understandable media hype that is accompanying the conflict that existed there after the Russian invasion: sorry, however, that, albeit with the necessary distinctions, the same emphasis has not been post for other conflicts or crisis situations which, unfortunately, have afflicted, or still afflict, the world.

And it is surprising, but perhaps not that much, that, again for the above, any crimes committed by the Russians are rightly reported (net, then, of the veracity or otherwise of the war facts to which they - crimes - would be attributed ), but skip over those put in place, probably, also by the Ukrainians (already mentioned1, for example, civilians taking part in hostilities who, unless they are organized into resistance movements, with all that goes with it - namely: hierarchical structure under a responsible command, hallmark, weapons carried visibly e respect for international humanitarian law - therefore violate the rules of war).

An affirmation, this, which must be considered free from any political judgment, since it is purely juridical: otherwise said, underlining that possible crimes may also exist on the Ukrainian side, it absolutely does not mean to belittle or question the legitimate resistance of that People who have seen their territory attacked and invaded by an enemy Power, but pay attention to whether, like it or not, if there are laws of war, they must be respected by all, although humanly this can be jarring with the reality of the facts and with the feelings of sympathy and closeness that, in general, are often felt for the party considered "victim".

Better to say: even the elderly lady who, in a state of poverty, finds herself stealing from the supermarket, if humanly she can certainly attract the feet human, from a legal point of view it would always and in any case be committing a crime, except for the different nuances that could occur case by case.

In the aforementioned context, even more so, since it is a war, the consequences of the related crimes can reach a much higher level of gravity and, precisely for this reason, they cannot be legitimized either on one side or the other, although for one of them there may be the "justification" of having to defend from the invading enemy.

Well, net of the developments in recent days, as is known, in Ukraine, another conflict was already underway, always with the same parties involved as the "current" one (the reference is to the Donbass war), within the which war crimes were committed, but there was no equal denunciation of them, as mentioned above: and that they involved both actors in conflict (Russian and Ukrainian, precisely), it was a very recent order of the Italian Court of Cassation (n.7047 of 2022, of last March 3) with which, in recognizing the right of international protection to a Ukrainian citizen who arrived in Italy to avoid the call to arms in his country, he was recognized as susceptible to acceptance, between the various reasons for appeal, including that concerning the alleged danger, for the aforementioned, of "be forced to serve in the Ukrainian army, as a subject of useful age for conscription, with the consequent danger of being involved, in spite of himself, in actions of war and being forced to commit war crimes or crimes against humanity".

The Ermellini have, more specifically, ruled that "In matters of international protection, the status of political refugee must be recognized for conscientious objector who refuses to perform military service in the State of origin, where enlistment involves the risk of involvement, even if only indirectly, in a conflict characterized by the commission, or by the high probability thereof, of war crimes and crimes against humanity ", pointing out that, for what is most interesting here:

1) all international sources agree on the existence of an armed conflict in Ukraine2, in which the parties did not comply with the 2015-2016 ceasefire agreements and continued to fight despite the truce;

2) the same sources highlight the presence of serious violations and war crimes, committed by both sides in the conflict;

3) the institution of conscientious objection - defined, according to the UNHCR Guidelines on international protection, as "objection to military service deriving from principles and reasons of conscience, including deep convictions deriving from religious, moral, ethical, humanitarian or similar reasons" - notes both as an absolute objection (so-called pacifist objectors) and in the form of partial objection, and in the latter case both with regard to the refusal ofillegal use of force (ius ad bellum) than under the aspect of refusal to use means and methods of warfare that are not permitted or do not comply with international law or international humanitarian law (ius in beautiful).

In the face of what has been said, and in support of what has already been reported on another previous occasion - previously cited -3, it is therefore conceivable that, although perhaps to a different extent (it will be the History and the Courts to establish it), even in these weeks of war there may be violations concerning both the parties in conflict: a probability that must be taken into account, if we want to remain balanced in the judgment, at least from a legal point of view. Even if, at times, the political one (profile) follows, or cannot disregard, the former.

And this applies both in the immediate present and in the future, so that nothing, if any, goes unpunished. Neither on one side nor on the other.

1 See, in this regard, what is always written on this magazine, at the link https://www.difesaonline.it/evidenza/diritto-militare/conflitto-russo-uc...

2 This circumstance is endorsed by the fact that "... on 7 September 2019 an exchange of prisoners was concluded between the parties, which is notoriously and clearly a typical act of armed conflict scenarios", as also reported in the same ordinance.

3 Ibid.

Photo: MoD Ukraine