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16.11.2016 | Halya Coynash

International Criminal Court demolishes Russia’s narrative on Crimean annexation

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Russia’s attempts to distort the picture regarding its invasion and annexation of Crimea, and military engagement in Eastern Ukraine received a significant blow on Nov 14 in the hard-hitting conclusions published by the International Criminal Court’s Office of the Prosecutor.  The report is particularly welcome at a time when US President Elect Donald Trump is on record as suggesting he may remove sanctions over Russia’s aggression and even ‘recognize’ Crimea as Russian. 

The Office of the Prosecutor’s Report [OPR] found that the situation with Crimea constitutes an international armed conflict between Ukraine and the Russian Federation.  This is of crucial importance since it means that the conflict falls under the Rome Statute, and is within the International Criminal Court’s jurisdiction. 

Russia long denied that the armed soldiers who seized control on Feb 27, 2014 were Russian and to this day attempts to present the events as being initiated by Crimeans themselves.  Russian President Vladimir Putin recently claimed, for example, that Russian forces were deployed only to protect Crimeans as they voted in a ‘referendum’ on joining Russia, ‘to defend the will of the people’, so to speak. 

This is a cynical misrepresentation of the facts.  Russian forces seized control and were deployed to force a session of the Crimean parliament used to rubberstamp a takeover by marginal pro-Russian politicians.  It was those leaders installed at gunpoint who announced a ‘referendum’ which did not offer the possibility of maintaining the status quo and which was effectively overseen by Russian soldiers and armed, often violent, paramilitaries.

There is considerable evidence, including from the Russian Human Rights Council, as to why this referendum was a farce.  People’s memories are, however, short, Russia’s propaganda efforts lavish, and it is common to see reports which give credence to the propaganda version. One standard argument often tried is that there was no invasion since there was relatively little bloodshed.

This is not an argument for letting criminals claim rights to your home when they use machine guns to force you out on the street, and the International Criminal Court has just confirmed that it is no argument for them either.  The international conflict, the report states, began “when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government”.  It continued after 18 March 2014 (when the annexation was formalized) “to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation”.  The occupation of another State’s territory is critical here, and it is not important whether the occupation met with armed resistance, the report explains.  

The report lists human rights violations, including harassment of Crimean Tatars; killings and abductions, with most of the known victims mentioned to have opposed Russian occupation; arrests and detention, “with information available pointing to the non-respect of a number of due process and fair trial rights.”, and others.

In welcoming the report, the Crimean Human Rights Group pointed out that they have repeatedly reported actions by the Russian Federation which violate the Geneva Convention (IV) on the Protection of Civilians in Time of War, in particular the section of the behaviour of an occupying state on occupied territory. 

With respect to Eastern Ukraine, the situation is more complex, however Russia is also clearly implicated.  The authors note that the “anti-government elements” are allegedly supported by Russia, and that the increased intensity of fighting near Ilovaisk in late August 2014, and in Debaltseve from January to February 2015 “have been attributed to the alleged influxes of troops, vehicles and weaponry from the Russian Federation”.

The report mentions additional information pointing to “direct military engagement between Russian armed forces and Ukrainian government forces that would suggest the existence of an international armed conflict in the context of armed hostilities in Eastern Ukraine from 14 July, 2014 at the latest, in parallel to the non-international armed conflict”.

In determining how international this conflict is, the Office of the Prosecutor is also “examining allegations that the Russian Federation has exercised overall control over armed groups in eastern Ukraine. The existence of a single international armed conflict in eastern Ukraine would entail the application of articles of the Rome Statute relevant to armed conflict of an international character for the relevant period.”

The Office of the Prosecutor is now assessing whether the information available provides evidence of “support for the armed groups to the armed groups in the form of equipment, financing and personnel, and also whether they have generally directed or helped in planning actions of the armed groups in a manner that indicates they exercised genuine control over them.”

It is for the Court in the Hague to decide, but human rights groups and various think tanks have certainly provided considerable amounts of evidence. 

Neither Ukraine, nor Russia, has yet ratified the Rome Statute, however Ukraine’s government has lodged two separate declarations with the Court under Article 12 (3) of the Rome Statute accepting the jurisdiction of the Court.  The first in April 2014 pertained to the period of the Euromaidan protests, the second, lodged on September 8, 2015, regarding the period beginning Feb 20, 2014, with no end date.

There are different situations in Crimea and Eastern Ukraine, and not only because the Office of the Prosecutor perceives at least part of the conflict in Donbas as non-international.  Another important difference is that the Court is likely to find that the Ukrainian authorities also committed violations, although hopefully on a lesser scale.  While Ukraine’s leaders have shown frustrating reluctance to finally ratify the Rome Statute, it was nonetheless Ukraine that approached the Court and that has accepted its jurisdiction. 

If full confirmation of Russia’s active part in the military conflict in Donbas is still to come, the Court’s position on Russia’s annexation of Crimea is unequivocal and of immediate relevance.  There can be no justification of any retreat on sanctions or international condemnation of Russia’s act of international military aggression and ongoing occupation of Ukrainian Crimea.

 

 

 

 

 

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