Analysis of the Verdict in the Markiv Case

Responsibility for war crimes committed by the armed forces has not been removed

We all remember the scandalous acquittal of a militant of the National Guard of Ukraine by an Italian court due to the lack of direct evidence of his guilt. However, few people paid attention to the fact that the actions of the Ukrainian army and the National Guard of Ukraine were recognised as war crimes by the decision of the Italian court.

Italian photojournalist Andrea Rocchelli and Russian human rights activist Andrey Mironov were killed (and French photographer William Roguelon was wounded) as a result of shelling by the Ukrainian army and the National Guard of Ukraine. But there is no evidence, without any doubt, confirming that Vitaly Markiv, the only person accused of the murder, took an active part in it and that he was on duty at the time of the shooting (from 16:30 to 17:30 on 24.05.2014). According to the Court, the army and the National Guard of Ukraine opened fire at the journalists without apparent threats in order not to frighten, but to eliminate them, and, therefore, these actions were carried out in violation of the “rules of warfare and the provisions of the Fourth Geneva Convention of 1949 ‘On the Protection of War Victims'”. This conclusion follows from the decision of the Court of Appeal of Milan (under the presidency of Giovanna Iquino), published on January 21st, 2021, following the acquittal on November 3rd, 2020.

The conclusion, published on January 21st, 2021 by the Milan Court of Appeal, does not nullify the verdict of the court of first instance, but, on the contrary, considers a specific moment within the framework of the truth about what happened on May 24th, 2014. In fact, instead of overturning the decision of the court of first instance, its validity was reinforced, confirming the measure of responsibility determined at that time. First of all, it confirms the correctness of the entire accusation and the results achieved during the investigations conducted by the Prosecutor’s Office of Pavia.

The Court accepts the following version of the events as factually correct: “In the afternoon, on May 24th, the Ukrainian military on combat duty on Mount Karachun, as usual, observed what was happening at the foot of the mountain and reported to the commander about the presence of journalists who were moving from the place where they parked the taxi, in the direction of a railway wagon. Based on the usual sequence of actions described by Markiv, the commander assessed the situation and ordered the National Guard soldiers on duty to use the available light artillery, and also provided the regular army with coordinates for the work of heavy artillery.”

Thus, in its decision of January 21st, the Court came to the following conclusions:

1) The Court confirmed that the cause of the death of journalists is incompatible with life injuries inflicted as a result of shelling, fired from mortars or heavy artillery. Therefore, the defence’s request to conduct a ballistic examination for the “maximum aiming and killing range of the AK-74” was rejected, as well as to find out “whether the AK-74 can hit a target from a distance of 1700 m”. “The court considered this examination inappropriate, since the shots that hit Mironov, Rocchelli and Roguelon were fired from a different type of weapon — heavy artillery”.

2) The Court also concluded that only the UAF in this case could have used these types of weapons, due to the fact that the militia positions were located too close to the place of fire, namely, at the plant and next to the plant in close proximity to the place of death of journalists: “The Court agreed with the Court of First Instance that if the militia had intended to kill journalists, they would have used small arms, and not mortars, since at close range there was a risk of causing damage to their own positions. [ … ] The Court found that there were no other pro-Russian militia positions located in the immediate vicinity of Mount Karachun.”

3) The Court recognises that at the time of the attack there were no apparent reasons that could have prompted the Ukrainian troops to open fire to kill. In his testimony, Markiv also confirms that the National Guard and the UAF considered all civilians as a potential threat: “During the interrogation, Markiv himself stated: ‘all those who approached our positions were terrorists with the goal of capturing the tower ‘[ … ] ‘and my primary task during my stay in the positions was to prevent enemy infiltration'”.

This information is also supported by the statement of the Italian Ambassador to Ukraine, who claims that at that time the entire population of the city of Slavyansk did not welcome the presence of Ukrainian troops “due to obvious pro-Russian sentiments”. The Court also concludes that for a number of reasons (including due to a good view from their positions on high ground), the Ukrainian troops could not fail to recognise that they were facing civilians, and not an armed militia.

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“Even if from their positions on the mountain, the military could not identify Roguelon, Rocchelli and Mironov with certainty as journalists, they could nevertheless observe their arrival (a civilian taxi was parked in a prominent place, and the driver remained waiting for them in the car), silhouettes and facial features, calm behaviour, movements (movements of people who take photos, and do not intend to commit an armed attack), how they retreated, and did not advance (because when the military began firing from the mountain, the group was already returning to the car with the aim of leaving), and so it was clear, that they were unarmed civilians, not taking any aggressive or terrorist actions. And it is based on the fact that they were unarmed civilians, they were supposed to be protected, and not shot”.

4) The Court confirms the full responsibility of the Ukrainian military for the incident and the legality of the presence of unarmed journalists at the scene of the shooting of the report, which was interrupted by deliberate shelling: “The reconstruction of the facts, in accordance with the procedural evidence and considerations set out in the previous sections, allows the Court to agree with the conclusions of the Pavia Jury on the origin of the shots that killed Rocchelli and wounded Roguelon, and to conclude that it was the shots from mortars and heavy artillery fired by the Ukrainian army from Mount Karachun, they hit the area where photojournalists, a taxi driver and a civilian had disappeared. […] Thus, they were there for the purpose of carrying out their activities as photojournalists. [ … ] The shelling carried out on Mironov, Roguelon and Rocchelli, as indicated in the contested verdict, was not motivated by any provocations or offensive actions either on their part or on the part of pro-Russian forces. [ … ] The intensity and precision of the volleys, fired not only from light but also from heavy artillery, demonstrate that the purpose of the shelling was not so much to frighten the photojournalists as to eliminate them.”

5) The Court emphasizes the illegal nature of the actions of the National Guard and the regular army of Ukraine, carried out in violation of international norms for the protection of the rights of civilians in combat: “The commanders gave an illegal order in violation of the norms for the protection of civilians [the provisions of the Fourth Geneva Convention of 1949 ‘On the Protection of Victims of War’], and the National Guard and the armed forces fired from the mountain [Karachun].”

At the same time, this conclusion concerns not only the incident under consideration at Mount Karachun, as it is possible to trace systematic violations of human rights by the Ukrainian troops: “Moreover, at that time, the rights of the press and civilians were violated during the conduct of hostilities, and basic human rights were not properly protected, as stated in the documents submitted by the civilian parties and mentioned in the appealed verdict. Firstly, we are talking about the OSCE report from 23.05.2014, which condemns numerous (about 300) cases of violence and intimidation of journalists; In addition, the report of the Director of the Human Rights Watch Office for Europe and Central Asia dated June 6th, 2014, which reports on mortar attacks from Ukraine on residential buildings in the village of Semenovka on the outskirts of Slavyansk for three consecutive nights, the last of which occurred on the night of May 22nd-23rd”. This aspect was considered by the Court after the statements of the Ukrainian side that “Ukrainian servicemen do not fire at civilians”.

Pressure of the Ukrainian side on the participants of the trial and attempts to present distorted information:

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1) During the hearings, the Ukrainian side tried to delegitimize the testimony of Italian journalists who acted as witnesses – Morani, Fauci, Iaccarino, Volpi and Carruba. Their professionalism was discredited, and they themselves were slandered as liars. In this regard, the Court rejects the libel, stating that “there is no reason not to consider the testimony of these witnesses completely reliable”.

At the same hearing, the defence largely discredited the significance and credibility of the testimony of an eyewitness, the French photojournalist William Roguelon, who survived the shelling, although he was seriously injured. In relation to the latter, the Court states that “it considered his [Roguelon’s] testimony to be completely reliable — both oral statements and figurative descriptions of the area and the indicated location of the persons”.

(2) Among other things, the Court did not fail to set out in writing complaints concerning the “low-grade”, “rude”, “harsh and unsubstantiated” nature of certain statements made by the defence, especially in relation to the Pavia Prosecutor’s Office and the Prosecutor General.

3) The Court also refused to consider as evidence the propaganda film The Wrong Place presented by the Ukrainian side, authored by Cristiano Tinazzi, stating that “he [Tinazzi] did not witness those events and has no direct knowledge of them”. As for the film itself, the Court excluded it from the case, since it was filmed “in the absence of any control by third parties in time periods […] and conditions that absolutely do not coincide with those considered in the course of the court proceedings”.

4) The court also rejected the defence’s request to inspect the scene in order to avoid manipulation of the facts, suggesting that over the years since the incident, “the positions and structures that Markiv described may have been positioned in a different way (from the toilet to the trench with sandbags), the vegetation cover may have changed, and new structures may have been built in the area between the positions and the place of shelling”. Moreover, “Markiv himself is not sure of the accuracy of the positions indicated by him”.

Markiv was acquitted, and those responsible for the shooting escaped responsibility due to a formality.

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The justification for the acquittal explains that it is based on formal shortcomings in some of the testimony, or rather, on the testimony presented by the defence in the person of the defendant’s military commanders — Matkivsky and Antonishchak, as well as his colleagues who were summoned to testify. It was their statements that determined the role and position of the accused, and as a result, they moved from the defence to the prosecution.

The defence in the appeal indicated that “Markiv was in combat gear on Mount Karachun an hour before the events in question. But the results of the trial do not allow us to say with certainty that Markiv was on combat duty an hour later and, therefore, could have taken part in the surveillance of journalists, reported to Matkivsky and subsequently carried out the shooting.”

But Matkivsky can not confirm this information, so as not to be responsible for the order given. It is noteworthy that Markiv filmed his position on Mount Karachun (from which the shelling was carried out) on his tablet. And, when Matkivsky was shown this video in court, he said that “this was his [Markiv’s] position”.

In fact, the formality by which these statements were excluded from the case (although the Court of First Instance relied on it in its conviction) and Markiv was released, is that the only witnesses who can shed light on what happened on May 24th, 2014, are people who could not tell the truth, so as not to be in the dock with their former subordinate, because they were not warned about: 1) the possibility that “their testimony may be used to bring them to justice”, and 2) “the right not to answer, which they could take advantage of”.


Daniil Bezsonov

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