International Criminal Court finally agrees to open case regarding war crimes in occupied Crimea and Donbas

Тіла пасажирів рейсового автобусу, які були вбиті внаслідок ракетного удару російських гібридних сил. Загинуло 12 (за іншими даними 13) людей, ще 18 були поранені. Донеччина, околиця міста Волновахи, 13 січня 2015 року

Bodies of the bus passengers killed in the rocket attack of Russian hybrid forces on the outskirts of Volnovakha, Donetsk Oblast on 13 January 2015. 12 civilians were killed (13 according to other sources), 18 wounded in the attack. 

International

In what Ukraine’s Foreign Minister Dmytro Kuleba called a “historic” decision, the International Criminal Court in The Hague has decided to launch an official investigation into the situation in Ukraine regarding war crimes and crimes against humanity committed in occupied Crimea and Donbas. The Ukrainian government filed the relevant lawsuit back in 2014.

The prosecutor of the International Criminal Court Fatou Bensouda announced that following a preliminary investigation, there is a “reasonable basis at this time to believe that a broad range of conduct constituting war crimes and crimes against humanity within the jurisdiction of the Court have been committed in the context of the situation in Ukraine.”

The crimes pertain to three broad clusters:

  1. crimes committed in the context of the conduct of hostilities;
  2. crimes committed during detentions;
  3. crimes committed in Crimea.

 

 

The next step will be to request authorization from the Judges of the Pre-Trial Chamber of the Court to open investigations.

The preliminary investigation took a whole six years because Ukraine had not ratified the Rome Statute; if it did, the investigation would have been launched immediately.

The preliminary investigation into the situation in Ukraine was opened on 24 April 2014 on the basis of an ad hoc statement by the Government of Ukraine recognizing the jurisdiction of the ICC, which was subsequently joined by Ukraine’s second statement in 2015 to cover crimes allegedly continuing on the territory of Ukraine since 20 February 2014.

During this time, Ukraine’s Prosecutor General’s Office and NGOs have repeatedly provided the ISS Prosecutor’s Office with systematic information on acts that may qualify as crimes against humanity committed during the annexation and occupation of Crimea and the armed conflict in Donbas.

Among them are the reports “Russian War Crimes in Eastern Ukraine,” by Polish MP Malgorzata Gosiewska, “Those that lived through hell,” by the Coalition For Peace and Justice in the Donbas, “Executed in Donbas” by the NGO Myrnyi Bereh and Kharkiv Human Rights Group.

How does the ICC qualify the conflict in Ukraine?

It views the situation in Crimea as an international armed conflict and ongoing occupation. This assessment was first made in its November 2016 report, namely — that the situation in Crimea since the deployment of the members of Russian armed forces there at the end of February 2014 “amounts to an international armed conflict between Ukraine and the Russian Federation.”

The law of international armed conflict, the report went on, continued to apply after the formal act of annexation “to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation.

As for the war in Donbas, the ICC Prosecutor’s Office remains in a position of parallel qualification, classifying the hybrid aggression both as an international armed conflict and at the same time as a non-international armed conflict.

The preliminary reports state that by 30 April 2014, “the level of intensity of hostilities between Ukrainian government forces and anti-government armed elements in eastern Ukraine had reached a level that would trigger the application of the law of armed conflict and that the armed groups operating in eastern Ukraine … were sufficiently organized to qualify as parties to a non-international armed conflict.” 

Meanwhile, the Office also assessed that “direct military engagement between the respective armed forces of the Russian Federation and Ukraine, indicated the existence of an international armed conflict in eastern Ukraine from 14 July 2014 at the latest, in parallel to the non-international armed conflict.”

What is known about Russia’s war crimes in Ukraine

The preliminary reports of the ICC include these examples of crimes committed in Russian-occupied Crimea:

  • the harassment of Crimean Tatars based on ethnic origin;
  • killing, abduction, unlawful detention, ill-treatment of those deprived of their freedom;
  • denial of the right to a fair trial,
  • compelled military service of Crimeans in the Russian army.

Evidence on the forced issuance of Russian passports to Ukrainians in occupied Crimea, persecution of journalists, and militarization of children was also supplied to the ICC.

Regarding occupied Donbas, Ukraine had provided evidence of Russian-separatist forces committing extrajudicial executions of Ukrainian servicemen during the battles of Ilovaisk and Debaltseve, the murders of civilians, torture, rapes, extrajudicial killings, attacks on civilians and civilian infrastructure, including

  • downing the civilian flight MH17;
  • artillery shelling of Mariupol;
  • shelling of Ukrainian positions with weapons installed among residential buildings;
  • artillery shelling of a bus near Volnovakha.

In 2016, following the first report of the ICC classifying the situation in occupied Crimea as an international armed conflict, Russia announced its withdrawal from the ICC claiming that the Court “failed to meet the expectations to become a truly independent, authoritative international tribunal.”

Apart from the International Criminal Court, Ukraine has filed cases against Russia in the International Court of Justice, the European Court of Human Rights, and the Permanent Court of Arbitration.

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