this post was submitted on 31 May 2022
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There are captured Russian soldiers where they're started to get sent through war crimes courts. Personally, this makes me deeply uncomfortable because I have no faith that they will be given anything near a fair trial by Ukraine. But at the same time, I am almost completely certain that Russia (Oh sorry, the DPR) will have just a bunch of kangaroo courts. And may I remind you, being a member of Azov is not a war crime by any definition of the phrase.
Would you say being a member of the Nazi SS in Germany is also not a crime?
You might want to read up on the common legislation and legal doctrine about conspiracy and criminal groups, including the case in the West. Namely, if a group enters into an agreement (that's literally the legal term) to commit some crime, every member of the group is each guilty of every crime involved in the conspiracy, regardless if they participated in any part of the crime or not. It's why entire gangs and underground societies are prosecuted for the entire group's actions, and the Azov committed uncountable haneous crimes. Continuing to vocally identify as part of the group after finding out the commisions of crimes or future planned crimes is almost certainly considered entering into or upholding that criminal agreement.
Then the Russian military should be put to the sword as well, no? After all, they knew war crimes were being committed by fellow members of the Russian armed forces. Also, no, collective punishment is not a thing at least in US law. Individuals commit crimes, individuals get punishments. An individual would have to agree to commit a crime for it to be conspiracy.
As for the first part of your comment, no. Being in the official military of a country is not a crime or entering into a criminal conspiracy, so if a soldier goes rogue and decides to do something they shouldn't, that's only on them. However, if a commanding officer orders a war crime, and it's carried out, then yes, everyone in the chain of command below that, and is associated with the war crime, is a war criminal. Like, say, the US pentagon ordering drone strikes on a hospital. Just trace metaphorical lines from the people that ordered it, and their subordinates, and theirs, all the way down to the people who did the actual act. Everyone that touches that tree is a war criminal. In fact, under the laws of war, soldiers have a legal duty to actively refuse any order they know to be a war crime, and it's a separate war crime to punish a soldier for refusing to commit the original war crime. "I was just following orders" is very explicitly not a defense, IIRC this was actually passed internationally after too many Nazis used that line.
Also, an official national military is a special case where most civilian laws don't apply, that's why we have military law and military courts. But the same is not said for a paramilitary organisation like the Azov.