Russia ‘boycotts’ International Tribunal hearing on its illegal seizure of 24 Ukrainian seamen

Ukraine has turned to the International Tribunal for the Law of the Sea (ITLOS) over Russia’s seizure of three Ukrainian naval vessels and their crew.  Critical hearings are due on 10-11 May into Ukraine’s application for provisional measures to get the 24 men released.  Russia has a long track record of flouting international rulings and has just announced that it will not attend the open hearings on 10 May.  This ruling will, however, matter and Moscow is currently endeavouring to ‘prove’ that ITLOS does not have jurisdiction over the case.  Russia could  checkmate itself since one of the reasons why the Tribunal would decide it does not have jurisdiction is if it was proven that this was part of military conflict, which Russia has every reason to deny.

Ukraine announced that it had lodged its suit against Russia on 16 April, and had asked for provisional measures under Article 290 § 5 of the UN Convention on the Law of the Sea to secure the release of the three naval vessels and the 24 men imprisoned in Russia.

Olena Zerkal, Deputy Minister of Foreign Affairs, who is directly involved in all the proceedings at international courts, said at the time that they are hoping for a swift outcome.  According to ITLOS practice, hearings take place within two weeks, with a decision anticipated within two weeks after that.

The dispute between Ukraine and the Russian Federation concerns the three Ukrainian naval vessels whom Russia opened fire on and then seized on 25 November 2018, and the 24 servicemen taken prisoner then and still imprisoned.  Russia has claimed that the servicemen ‘illegally crossed Russian borders’ and is holding them in Russian remand prisons, subjecting them to interrogation and forced ‘psychiatric assessments’.

Ukraine asserts that all of this is part of “Russia’s violation of the sovereign immunity accorded to warships, naval auxiliary vessels, and their passengers and crew under Articles 32, 58, 95, and 96 of the Convention and customary international law.”

In all such disputes, Russia has claimed that the court in question does not have jurisdiction.  In this case, its argument appears to be that the Tribunal should not consider what it misleadingly terms “the Kerch incident” due to reservations on the applicability of the Convention allegedly agreed between the RF and Ukraine.

Other arguments would, so to speak, get Russia into dangerous waters.  Ukraine asserts that Russia violated one of the fundamental principles of maritime law, namely the immunity of naval vessels and their crews,  As Serhiy Sydorenko, writing for European Pravda, noted, there are some nuances to this case. 

The application, for example, does not once call the 24 men prisoners of war, although there are strong reasons for considering them to be such (details here).

It was the men’s POW status which initially prompted Ukraine’s western partners to warn against this suit.  The Convention on the Law of the Sea applies strictly to peacetime. 

In fact, the Ukrainian team does appear to have convinced those doubters that their case does have a good chance of succeeding.

One of the reasons is, in fact, provided by Russia which has been doing everything to deny the 24 servicemen’s POW status.  All of its actions, in imitating criminal proceedings over supposed violation of the border are about denying their real status, and Russia has no interest in proving the military nature of its aggression against Ukraine.

As one of the (unnamed) lawyers EP spoke with puts it, “if the Russians recognize that they’re in a state of war, then they can indeed avoid application of maritime law. However it was not for nothing that they have been denying any kind of military conflict for so many years.  That will destroy their narrative about Crimea supposedly being theirs, and about an “internal” conflict in Ukraine”.

Recognition by any international court that there is a military conflict between Ukraine and Russia could result in Russia losing its right of veto at the UN Security Council, at least with respect to any votes on the situation in Ukraine.

This was doubtless the reason why Russian President Vladimir Putin reacted so swiftly to the International Criminal Court Prosecutor’s preliminary report for 2016 which found that Russia’s invasion and occupation of Crimea constituted an international armed conflict (details here about the report and Putin’s reaction). 

The Ukrainian team are convinced that they have a very strong case against Russia with respect to this dispute.   The full presentation of Ukraine’s position can be found on the ITLOS website.

PLEASE WRITE TO THE MEN!

Getting any letter is an important message to them – and to Moscow – that they are not forgotten.

Letters need to be in Russian, unfortunately, and will be passed by the censor, so please avoid any mention of their cases, politics, etc. 

If writing in Russian is problematical, there is an example letter below which you could send, together with a picture, or similar. 

The list of all the prisoners

(the names are in Russified form, which has more chance of getting past the censor)

Artemenko, Andrei Anatolyevych, 1994

Bezyazychny, Yuri Yuryevych,  b. 1990

Bezpalchenko, Viktor Anatolyevych, b. 1987

Budzylo, Yuri Aleksandrovych,  b. 1973

Chuliba, Sergei Romanovych, b. 1992

Drach, Andrei Leonidovych, b. 1994

Eider, Andrei Dmitrievych, b. 1999

Holovash, Bohdan Olegovych, b. 1996

Hrytsenko, Denis Vladimirovych, b. 1984

Kostishin, Vladislav Anatolyevych, b. 1994

Lisovy, Vladimir Vladimirovych, 1984

Melnychuk, Oleg Mikhailovych, 1995

Mokryak, Roman Nikolayevych, 1986

Nebylytsa. Bohdan Pavlovych, b. 1994

Oprysko, Andrei Andreyevych, b. 1971

Popov, Sergei Nikolayevych, b. 1991

Semidotsky, Yevgeny Vitalyevych, b. 1998

Shevchenko, Andrei Anatolyevych, b. 1991

Soroka, Vasily Viktorovych, b. 1991

Tereshchenko, Vladimir Anatolyevych, b. 1994

Tsybizov, Sergei Andreyevych, b. 1997

Varimez, Vladimir Konstantinovych, b. 1992

Vlasyuk, Mikhail Borisovych, b. 1984

Zinchenko, Viacheslav Anatolyevych, b. 1998

Address

Russia, 111020 Moscow, Lefortovsky Val, No. 5. PO Box 201, SIZO-2

Then each name, as above, with their year of birth

Letter

Добрый день,

Желаю Вам здоровья, мужества и терпения, надеюсь на скорое освобождение.

Мы о Вас помним.  

[Hello, I wish you good health, courage and patience and hope that you will soon be released.  You are not forgotten.