As the case of convicted Ukrainian Major General Viktor Nazarov moves to the Supreme Court, military experts, generals, soldiers and diplomats remain divided on whether the ruling was just.
In 2017, Nazarov was sentenced to seven years in jail for negligence which led to the June 14, 2014, downing of the Ilyushin Il-76 aircraft by the Russian military in the early stages of Russia’s war against Ukraine. All 49 people on board were killed in the crash.
Nazarov denies guilt and has been appealing the sentence. In December, after a failed appeal, the case was moved to the Supreme Court.
The case has split the society into those who believe that a military person can’t be convicted for his actions by a civil court, and those who support the conviction.
On Jan. 11, sixteen U.S. experts, including several retired generals, former diplomats, and active American scholars, signed a letter “of concern regarding civilian criminalization of combatant commander decisions and its impact on Ukraine.”
The letter asks Ukrainian leadership to ensure that the trial of military officers in matters related to combat is conducted in a military court before a military judge.
The signatories, among whom are NATO’s former Supreme Allied Commanders in Europe General Phillip Breedlove and General Wesley Clark, NATO’s former Deputy Secretary-General Alexander Vershbow and four former U.S. Ambassadors to Ukraine, William Taylor, Roman Popadiuk, Stephen Pifer and John Herbst, have asked for Nazarov’s retrial in front of a military court.
Ukraine currently doesn’t have such a procedure.
In spite of that, many Ukrainians agree with the conviction, accusing Nazarov of disregarding basic procedures that would have otherwise saved lives.
Lawyer Vitaliy Pogosyan, who had pleaded the case on behalf of the victims’ relatives, considers Nazarov’s conviction an important victory in combating negligent, incompetent leaders who throw away soldiers’ lives.
“The most important thing for me is that I have finally seen relief in the eyes of the killed soldiers’ loved ones,” Pogosyan told the Kyiv Post after the Dnipro Court of Appeal upheld the seven-year prison sentence for Nazarov.
Deadly crash
The Ilyushin Il-76 aircraft was downed soon after Russia started its war against Ukraine. At that point, it was the Ukrainian Armed Forces’ heaviest loss of life in Donbas.
Nazarov, then the chief of Ukraine’s military response, launched a raid to reinforce the Ukrainian troops defending Luhansk airport, which was besieged by Russian-backed militants.
Prior, General Nazarov has ordered 17 successful flights to Luhansk, the provincial capital of 400,000 people located 800 kilometers east of Kyiv. Then and now, it was controlled by Russian militants. Those maneuvers allowed Ukrainian soldiers to land deep into the Russian-controlled territory.
On June 14, 2014, Nazarov ordered the 25th Airborne Brigade to redeploy from Dnipro to Luhansk airport in three transport aircraft.
The first flight landed successfully. The second plane approached the airport and was shot down by Russian-backed militants with a 9K38 Igla man-portable surface-to-air missile system.
All 40 paratroopers and nine crew members were killed as the burning airplane crashed close to the runway. The third plane requested a wave-off and safely escaped.
According to the Security Service of Ukraine, the militants who downed the aircraft were part of the Wagner Group, Russia’s unofficial private mercenary army fighting for the Kremlin’s political and business interests worldwide.
The incident triggered a nationwide uproar in Ukraine, with angry crowds storming the Russian embassy in Kyiv later that day.
Luhansk was lost and remains occupied by Russian militants to this day.
The case
In late 2014, an inquiry was launched into the downing. Nazarov was accused of committing criminal negligence during the operation’s planning and execution.
Two separate military tactics and aviation expert evaluations independently from each other found the general guilty of negligence in service. The commissions stated that he had directly violated a range of regulations by sending three transport aircraft across hostile territory stripped of any defensive capabilities.
Moreover, the evaluations concluded that he had failed to enact necessary measures to ensure the aircraft’s security upon arrival. He had also disregarded intelligence information from at least two independent sources that the enemy near Luhansk airport had anti-aircraft weapons.
“Nazarov was informed by the Security Service that a group of militants was moving towards the airfield with anti-aircraft weapons, he disregarded that information,” said Pogosyan.
Lieutenant General Viktor Nazarov during trial.
Pogosyan added that the airport’s control tower wasn’t working, while the Svityaz police battalion, which was meant to cover the operation, was stuck nine kilometers from the airfield under enemy fire.
Based on the commission’s report, a court in the city of Pavlohrad in Dnipropetrovsk Oblast found Nazarov guilty and sentenced him to seven years in prison in 2017.
After an appeal, the sentence was upheld by the Dnipro Court of Appeals on Dec. 11, 2020, after a new military commission came to the same conclusion.
Nazarov, who denied guilt, has filed a cassation appeal to the Supreme Court. On Dec. 23, the Supreme Court paused his sentence due to COVID-19. He remains under house arrest.
Polarized opinions
Public opinion on Nazarov’s case has been split into polar opposites.
Ukraine’s high military command and the U.S. retired generals and diplomats have backed Nazarov, while Ukraine’s legal and military experts, as well as many soldiers supported the court’s decision.
The stumbling blocks are whether a civil court can judge the actions of a military commander during war and if a general can be punished for taking risks.
“General Nazarov was fully operating by all reports within the balance of professional military judgment, he made the best decision he could based on the information he had at that time,” said General Clark.
“This is the fundamental issue that has to be addressed by Ukraine’s system of justice, assess and judge military professionals by other military professionals, who can effectively evaluate the mission, the risk, the circumstances,” he added.
“The military places very different requirements on its soldiers and their leaders, we take, and we require risks,” said General Breedlove.
According to the signatories of the letter, the conviction of an active duty general for taking a military risk during a war can paralyze the military, sparking fear among top command of being prosecuted by civil courts for making decisions while defending the country.
“No decision is a decision, no decision equals a loss of life and probably a loss of the mission, commanders have to decide and look forward,” said General Breedlove.
“We need to keep the focus on who is really responsible, and that is the Russians and their proxies such as the Wagner Group,” he added.
The distinguished U.S. generals echoed the words of Ukraine’s military command. In late December, Commander-in-Chief of the Armed Forces of Ukraine Lieutenant General Ruslan Khomchak supported Nazarov.
However, not all agree with the military command. Ukraine doesn’t have special military courts with all legal questions falling on the shoulders of civil courts.
“The Venice Commission (of the Council of Europe) has recommended that we cancel military courts in 2010, we canceled them, now they tell us to create military courts,” says Pogosyan.
Ukraine dismantled special military courts in 2010, nine years later Ukraine discontinued the military prosecution.
Pogosyan agreed that Ukraine needs military courts. Pogosyan has been representing many soldiers and junior officers in court since the war broke out in 2014. He said that hundreds of soldiers were prosecuted by civil courts.
However, Pogosyan added that Nazarov’s case is much simpler than other military cases. It deals with an army general disregarding basic safety measures, which led to multiple deaths.
“He didn’t do what he was required to do – that’s negligence,” said Pogosyan.
According to Pogosyan, Ukraine’s top command doesn’t want to see a general being sentenced since more generals can follow.
“We have Ilovaisk and we have Debaltseve, someone will have to take responsibility,” said Pogosyan.
The Battle of Ilovaisk in 2014 and the Battle of Debaltseve the following year are Ukraine’s biggest military defeats. Over 600 soldiers have been killed by Russia in those two battles.
The Battle of Ilovaisk led to the signing of the Minsk Protocol imposed on Ukraine by Russia, while the Battle of Debaltseve led to the signing of Minsk II which further benefited Russia.
In 2016, then Commander-in-Chief of the Armed Forces of Ukraine, General of the Army Viktor Muzhenko, stated that the defeat near Ilovaisk was caused by an invasion of Russian troops, along with Ukrainian commanders’ incompetence in the planning of the retreat.
“I saw documents on Ilovaisk, I represent a soldier in that case, the case is ready to be heard in court,” said Pogosyan.
Kyiv Post staff writer Illia Ponomarenko contributed to this story.
