Editor’s Note: On Dec. 11, 2020, a court of appeal upheld a 2017 conviction sentencing Ukraine’s Armed Forces retired Major General Viktor Nazarov to seven years in prison. According to the decision, the general’s fatal negligence in service precipitated the downing of Ukraine’s Air Force’s Ilyushin Il-76 aircraft by Russian-backed militants in Donbas in June 2014, in which all 49 servicemen on board were killed. The general never admitted his guilt and challenged the sentence.
A range of former high-ranking U.S. military and diplomatic figures decried the Nazarov conviction in an op-ed published in the Kyiv Post on Dec. 22 and in an open letter published in the Atlantic Council. They suggested that the general was found guilty by an incompetent civilian court (this goes against the fact that the court’s decision was based on two independent official military expertise evaluations both confirming the general’s negligence in service). Besides, the statements said the general had been wrongfully sentenced for fatalities that were inevitable in war.
The following is a response to these statements, written by Vitaliy Pogosyan, the lawyer representing the Il-76 case victims’ relatives in the Nazarov case.
In Ukraine, we have an old saying: “I heard the ring bell and I have no clue where it’s coming from.”
I absolutely don’t want to offend the open letter’s authors. But these words illustrate their knowledge of Viktor Nazarov’s criminal case.
The authors’ main message says that “civilian criminalization of combatant commander decisions” is unacceptable because such decisions are made with allowance for risk for the sake of military necessity.
It is noted that the Nazarov sentence undermines Ukraine’s national security since the military would be afraid of making decisions in uncertain and complicated situations.
This is where their biggest mistake rests.
Nazarov was found guilty because he, as an officer responsible for the execution of Anti-Terror Operation (ATO) command decisions, negligently failed to issue any orders to ensure an isolation zone around the Luhansk Airport so that transport aircraft could take down safely, which was envisaged by the operation’s plan.
He absolutely failed to devise a plan and employ available combat formations to suppress the enemy air defense capabilities (in the area).
In other words, Nazarov was convicted not for a decision or an order he has made but rather for the absence of such a decision, for not making even an attempt to ensure the aircraft security, for the absence of the most basic coordination of actions between the air and troops on the ground.
The air bridge operation to deploy airborne troops to the surrounded airport has never had a carefully detailed and deliberate plan, and it was Nazarov who had to make planning arrangements.
In fact, the transportation was being carried out as if it was during peacetime, except for aircraft crew efforts — the pilots were tightly observing the Air Force’s instructional guidelines on flight missions in the ATO zone.
And also with the exemption of tactical task group Slavutych, which was commissioned to defend the airport. The ATO headquarter never gave them any orders to clean out the Luhansk Airport environment to ensure the aircraft’s safe landing.
The ATO deputy commanding officer for the air force and the combat aviation group under his command were also never given any orders regarding the air bridge mission between Dnipro and Luhansk overnight into June 14, 2014.
In other words, Nazarov failed to assume measures he was obliged to. And he was not acting amid extreme military necessity — the ATO leadership’s decision to amplify the airport garrison was approved on June 11, while Nazarov notified the General Staff regarding the operation with a telegram as late as on June 13.
It is understood univocally that any military serviceperson assumes risks in combat. But he or she also has to follow operational requirements instead of counting on arbitrary chances of avoiding menace.
Should the operation be carefully planned, with clear action to protect the aircraft from downing, with a coordinated effort of air and ground forces, but with the same outcome, we could have said that, in spite of all the effort, the enemy gained victory and hit the target — and not because of leadership’s negligence but due to other reasons.
Only in such a case, we could have asserted that the military leader was assuming justified risk to achieve military goals.
The Nazarov case has to stimulate military leaders to handle their duties carefully. As they plan combat operations and issue orders, they must not reckon on someone else to do the necessary job, or expect things to spontaneously settle down for the better.
They must be making sure that all possible measures have been planned and exercised in order to get the mission goal achieved, and that everything possible has been done to secure personnel survival.
The open letter bears a lot of other false statements regarding the case’s circumstances. They are not critically important to the issue so we‘re not going to scrutinize them.
Yes, our nation doesn’t have military courts. But this doesn’t mean that criminal offenses committed by military service members must not be assessed by the law.
Despite numerous reforms in law enforcement and judicial branches introduced with the involvement of our foreign partners, Ukraine still has a prosecution service and courts that fulfill duties laid upon them by the nation.
The need to introduce a military justice system in Ukraine has been spoken about many times, long before the Nazarov case and the statements of concern regarding it.
In a fighting nation, there must be a full-fledged military justice branch, with military investigators prosecutors, councilors, and courts.
Upon that, there needs to be an effective system of checks and barriers preventing the military from covering up criminals.
A military justice system would not leave room for allusions of such kind when a court decision is placed in doubt because it was approved by individuals having no military education or experience.
It is very unlikely that a military court would pass another judgment in a case where the guilt is fully proved under Ukrainian legislation and in compliance with key principles and standards of justice.
Judges were definitely not happy about the fact that they had to hear the case. But we should give them a credit for the job they have done, for their lawful decision made despite illegal pressure upon them.
Now, under even greater pressure, a decision must be made by the Supreme Court. This will be a real test of the country’s judicial branch and particularly the Court’s every individual member.
The present situation is unprecedented!
I can’t recall any other instances of U.S. representatives of such a high level publicly meddling into Ukraine’s judicial branch, in fact threatening with terminating providing Ukraine with assistance and support, as well with a negative decision on Ukraine aspiration to join NATO.
It is good to have friends that are ready to protect you without knowing the case’s details and identify you with Jesus. This is probably the thing that came up in Nazarov’s mind after the mentioned statement was published.
We hope to be heard and understood.
We continue believing in justice the same way we did at two previous judicial levels!
In hope of positive changes in our military, where every commander as he makes a decision, must be thinking: “Have I done everything possible to ensure the survival of my men?”
