Ukrainian human rights organizations and prosecutors have sent so far to the International Criminal Court (ICC) eight reports on war crimes and crimes against humanity that have occurred in Ukraine since the aggression of Russia. The latest one submitted in early 2020 contains evidence that Russia is creating the conditions for the forced departure of Ukrainians from Crimea and is changing the demographic situation on the peninsula, populating it with its citizens.
“At the end of 2019, the number of only officially registered internally displaced persons from Crimea exceeded 43 thousand. However, according to the data of some international and Ukrainian non-governmental organizations, the actual number of displaced persons from Crimea is many times higher and may reach about 100 thousand. This is true to people who are not officially registered as internally displaced persons,” told a news conference Vitalii Nabukhotny, lawyer of the Regional Center for Human Rights.
According to him, the reasons for the departure of Crimeans from the peninsula are very different: the imposition of Russian citizenship, discrimination against Ukrainians, the Ukrainian Orthodox Church and Muslims, the inability to study in the Ukrainian and Crimean Tatar languages, the need to re-register businesses under Russian laws, confiscation of property, etc. (see Occupied Motherland). In addition, since the occupation, Russia has been conducting a military conscription in Crimea, which is a violation of international humanitarian law and qualifies as a separate type of war crimes under the Rome ICC Statute. The number of recruits known at the moment is about 14,000. Those who refuse to join the Russian army are held accountable: during 2017–2019, at least 71 recruits were criminally prosecuted.
“The legal nature of our message to the ISS is interesting, namely the issue and nature of coercion. Anyone can ask: discrimination is observed, churches, schools are being closed, but why is coercion to move if the person actually leaves the peninsula of his/her own free will? Previously, everyone understood that forced displacement was when, for example, during World War II, Jews were directed to concentration camps. Today, the position of many international courts and political institutions is different because the world has become more civilized and the approach to the interpretation of legal terms has changed”, Nabukhotny said.
There are no precedents in the ICC’s practice that are contextually reminiscent of the Crimean situation, but there are relevant practices of the International Criminal Tribunal for the Former Yugoslavia, says the lawyer. For example, the speaker of Republika Srpska, Momčilo Krajišnik, in particular, was accused of crimes of forced displacement through a policy of discrimination Muslims in Serb-controlled territories of Bosnia and Herzegovina. They were deprived of water in their homes, denied opportunities to get education; the most active Muslims were persecuted – what is happening now in Crimea and the Donbas.
“For the ISS to act in the same way in its practice, the Courts’ bold position is required. Even in Yugoslavia, the context is not exactly the same, and the accused were charged with dozens of other counts. However, it should be understood that such precedents exist, and we are trying to prove to the Court some analogy to situations”, explained Nabukhotny.
There are several aspects of citizens’ displacement from Crimea, says Roman Martynovsky, lawyer of Regional Center for Human Rights. First of all, it is deportation across the Ukrainian border to the Russian Federation. The first whom Russia began to bring over to its territory were Ukrainian prisoners, who were in Crimean prisons at the time of the occupation. Human rights defenders have provided the ISS with about 200 files of Ukrainian prisoners deported from Crimea to its territory by Russia. “In total, according to our estimates, at least 12,000 Ukrainian citizens have been transferred from Crimea to the Russian Federation today to serve sentences. That is, Russia continues to hear criminal cases, and the persons sentenced to imprisonment are mostly exported from Crimea”, Martynovsky said.
In addition, they began deporting people who had allegedly violated Russian migration law, which the Russian Federation extended to Crimea, while violating international law.
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“They have deported citizens of Ukraine and 37 other countries of the world that we have been able to identify. As a result, there was a displacement of citizens of Ukraine from the territory of Crimea to the territory of mainland Ukraine. The decisions taken by the occupation courts as a result of consideration of administrative protocols on violation of migration rules, ended with either deportation or voluntary departure, for which the person had several days”, the expert said. Instead, moving in the opposite direction began: the Russian Federation creates the conditions for populating the occupied territory by its own civilians.
According to Martynovsky, during the years of occupation the number of people who leave Crimea does not change (approximately 10 thousand a year. – Ed.), and sometimes it increases. People accumulate reasons to leave the peninsula and eventually they do.
“Such actions of the Russina Federation correspond to the concept of crime against humanity – Part 1 (d) Art. 7 of the Rome Statute. In terms of war crimes, they can be qualified in accordance with the separate points of Part 2 Art. 8 of the Rome Statute. Our arguments are based on the fact that those responsible for policies aimed at changing the demographic situation in Crimea, displacement of the population, should be criminally responsible in concordance with these articles”, says the lawyer.
The list added officials of the Russian Federation who are more or less responsible for human rights violations in Crimea. “For Prosecutor’s Office of ISS consideration, we have provided a list of 14 representatives of the top state leadership of the Russian Federation who are to be held responsible for the crimes committed,” said Crimean Prosecutor Ihor Ponochovny. According to him, the ISS Prosecutor is expected to submit a request to the ISS Pre-Trial Chamber to open an investigation into the situation in Ukraine as early as 2020.
Human shield and “Green Men”
One of the previous reports to the ISS sent by Ukrainian human rights defenders with the Crimean Prosecutor’s Office concerned the events in Crimea in February – March 2014, when Russian armed forces covered themselves with civilians, seizing Ukrainian military units (see Perfidious methods). The Regional Center for Human Rights (RCHR), the Ukrainian Helsinki Human Rights Union (UHHRU), and the Crimean Prosecutor’s Office, based on this submission presented the investigation with evidence that Russia was using prohibited methods of warfare. Human rights activists interviewed eyewitnesses about the capture of military facilities, found videos from the spot, and used information of the voluntary community InformNapalm whose business is intelligence from the open source.
Analysts have found evidence of the use of human shields during the blockade and capture of military units of the Armed Forces of Ukraine and administrative buildings. “The war crime of the use of human shields means that a person involved in a military operation and who is a party to an armed conflict uses civilians who have their rights to protection to gain military advantage. In fact, he is covered by a civilian and thus protects himself from attack and guarantees the advantage, because his opponent does not use weapons and other methods. This is exactly what the Russian Federation actively used in Crimea. You can find photos and video evidence of this”, said the author of investigation Anton Korynevych, Permanent Representative of the President in Crimea.
According to him, it is the first case in practice of the ICC when the issue of war crime of using human shields by the state is considered before only armed groups, but not the parties to the international armed conflict used them.
“It is important to analyze what was the key point: the civilian’s intention to voluntarily become a shield for the enemy’s armed forces, or the subjective intention of the enemy to use these men for military advantage. It seems to us that the latter is more important. All the agitation on the Russian side, of course, testifies that it was a targeted activity and forbidden methods of warfare”, notes he.
In addition, there is evidence of the use of so-called “green men”, uniformed armed men without insignia. Similarly, in history there have been cases of using uniforms without chevrons, but not by states.
“For international law, there has never been a question of whether the armed forces of the state should have chevrons and stripes, and there is nothing about that. This is what goes without saying. Therefore, if an organized armed group could behave like that, then the states would not. It is also a violation of international humanitarian law. Russia, as a party to the international armed conflict, had to make it clear that it was its military”, Korynevych says.
Another aspect of the investigation is perfidy, that is, the illegal use of emblems, uniforms of the Ukrainian Armed Forces, Navy and Ukrainian militia during blocking and seizing of military units and administrative buildings. There are few such cases, but they happened and confirm Russia’s use of prohibited methods of warfare, the authors say.
It is difficult to qualify such actions of the Russian Federation under Ukrainian law adequately, because the Criminal Code of Ukraine does not contain all analogues of international crimes.
“The state, the law, the law enforcement agencies were not ready for the challenges that they faced in 2014, because international law was studied in legal colleges at a rather limited volume, and international humanitarian law was not studied at all. When we decided to qualify the actions of the Russian Federation not under the common criminal law, as it happened before, but as a violation of the laws and customs of war, we were faced with even more challenges. Because it was a whole new area of law for prosecutors. We were helped by human rights organizations”, says Ponochovny.
Now the prosecutor’s office qualifies the actions of the Russian Federation under Art. 438 of the Criminal Code of Ukraine, violation of the laws and customs of war. In the event of the ratification of the Rome Statute and the harmonization of Ukrainian criminal law with international law, a detailed list of war crimes and separate provisions on crimes against humanity will appear in the Criminal Code.
Crime in Crimea does not stop
During the six years of occupation in Crimea, an atmosphere of repression against those disloyal to Russian politics has developed. Muslims are being searched and arrested for their religious views, evidence-free accusations of terrorism and extremism. The Crimean Tatars make up a large part of the Kremlin’s prison list. Peninsula is not accessible for international organizations, so monitoring the rights of its inhabitants is only possible remotely or through people at their own risk.
“There are statements at the international level that Russia can be negotiated because it has released seamen and 11 political prisoners. But, in the same 2019, Russia illegally imprisoned 43 more people. We do not see any positive trends”, said Olha Skrypnyk, chairman of the board of the Crimean human rights group. Among those 43 people, 36 were imprisoned for being involved in Muslim organizations, most notably Hizb ut-Tahrir, which is legally active in Ukraine but banned in the Russian Federation.
According to her, in recent years there has been no change in the trend of inappropriate detention of people in pre-trial detention centers and prisons: violence during detention, torture for the purpose of obtaining testimony, especially in so-called spy or sabotage cases, where people are accused of working for the SBU or the Ministry of Defense of Ukraine. In prisons, inmates do not have access to medical care.
“According to international law, such treatment is recognized as torture. These people should be released not only because they are innocent, but also because there is a real threat to their lives every day in a prison colony and detention center”, the human rights activist says.
The Russian Federal Penitentiary Service has confirmed that at least 25 deaths occurred in Simferopol pre-trial detention center from 2014 to 2018. “Even if Russia recognizes such deaths, then the official version is natural death or suicide. And there were no investigations there. No international missions have visited the detention center to find out the real causes of death. Such cases are left uninvestigated. We do not know what the people in the detention center are dying for”, Skrypnyk said.
Human rights activists suggest that Russia continues to persecute jdfpeople to detain them and then exchange them for witnesses to Russian war crimes in Ukraine. Moreover, the judges of the occupation courts are corrupted: they do not pay heed to the statements of the torturers, but instead accept the testimonies of interested parties, members of the so-called law enforcement agencies.
“The Russian Federation, in violation of international humanitarian law, continues to use the Russian Criminal Code in the occupied territory, so the sentences that are now being announced in Crimea are illegal. This also applies to cases where people are held accountable for actions that are not in violation of the law in terms of Ukrainian law, when the occupation authorities intend to persecute Crimean Muslims. In addition, the Russian Federation uses the retroactive law: in 2019, five people were convicted of “February, 26 Case”, these events took place before the occupation of Crimea”, says Oleksandr Sedov, Crimean group for human rights analyst.
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The activists who give publicity to searches and seizures are being persecuted. “In March 2019, some civic journalists were arrested in the Hizb ut-Tahrir case after fabricated allegations in terrorism, and they are now imprisoned. By having pushed out professional journalists, the occupying authorities have taken in hand those who simply post information on Facebook, share photos and videos that tell about human rights abuses in Crimea”, said Iryna Sedova, media expert of the Crimean group for human rights.
At the same time, access to Ukrainian media sites is blocked on the peninsula, and Russian radio is switched on at the frequencies of the Ukrainian radio stations immediately beyond the administrative border. In particular, providers block access to 18 Ukrainian sites, and the signal of Ukrainian radio is completely off in 19 settlements in northern Crimea. All facts recorded by human rights activists are already in place or will be sent to international courts.
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