Fatou Bensouda: "The situation in the Crimea and Sevastopol is equivalent to the international armed conflict between Ukraine and the Russian Federation"

posted 16 Nov 2016, 00:20 by Rights in Russia   [ updated 16 Nov 2016, 00:46 ]
"According to information received, the situation in the Crimea and Sevastopol is equivalent to the international armed conflict between Ukraine and the Russian Federation. This international armed conflict started not later than February 26, when the Russian Federation employed members of its armed forces to gain control over parts of the territory of Ukraine without the consent of the government of Ukraine."

Fatou Bensouda, Chief Prosecutor at the International Criminal Court [as quoted by The Moscow Times]

Photo: Wikipedia

Extracts from the Report of the International Criminal Court

"158. The information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February 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. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation. A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required. For purposes of the Rome Statute an armed conflict may be international in nature if 36 one or more States partially or totally occupies the territory of another State, whether or not the occupation meets with armed resistance. 

"Eastern Ukraine
"168. Based on the information available it seems that by 30 April 2014 the level of intensity of hostilities between Ukrainian government forces and antigovernment armed elements in eastern Ukraine reached a level that would trigger the application of the law of armed conflict. This preliminary analysis is based on information that both sides used of military weaponry, resources of the armed forces including airplanes and helicopters were deployed by the Ukrainian Government, and there were casualties to military personnel, nongovernment armed elements and civilians. Furthermore, information available indicates that the level of organisation of armed groups operating in eastern Ukraine, including the “LPR” and “DPR”, had by the same time reached a degree sufficient for them to be parties to a non-international armed conflict. 169. Additional information, such as reported shelling by both States of military positions of the other, and the detention of Russian military personnel by Ukraine, and vice-versa, points 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. 

"170. For the purpose of determining whether the otherwise non-international armed conflict could be actually international in character, the Office 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. In conducting its analysis, the Office must assess whether the information available indicates that Russian authorities have provided support 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. The Office is currently undertaking a detailed factual and legal analysis of the information available of relevance to this issue.  


"Alleged crimes 
"171. The following summary of alleged crimes is preliminary in nature and is based on publicly available reports and information received by the Office. The descriptions below are without prejudice to the identification of any further alleged crimes which may be made by the Office in the course of its analysis, and should not be taken as indicative of or implying any particular legal qualifications or factual determinations regarding the alleged conduct. 

"172. Harassment of Crimean Tatar population: Since the assumption of control by the Russian Federation over the territory of Crimea some 19,000 residents of the region have reportedly become internally displaced within mainland Ukraine. A large proportion of this number of internally displaced persons is believed to be of Crimean Tatar ethnicity. Under the application of Russian law throughout the territory, members of the Crimean Tatar population and other Muslims residents in Crimea have also reportedly been subjected to harassment or intimidation, including a variety of measures such as entry bans to the territory, house searches, and restrictions on their freedom of expression, assembly and association. 

"173. Killing and abduction: At least 10 people have been reported missing since March 2014 in the context of the situation in Crimea. In most instances the alleged victims were known to oppose the occupation of Crimea and their abductions were attributed to the “Crimean self-defence” paramilitary group. The Office is also analysing two incidents of alleged abduction and killing of Crimean Tatar activists, in March and September of 2014. 

"174. Ill-treatment: Several incidents of alleged ill-treatment in the context of detention or abduction were also reported, including beatings, choking, and, in at least one instance, threats of sexual violence. 

"175. Detention and fair trial: A number of civilians who opposed the 16 March referendum have reportedly been arrested and held in detention since March 2014 with information available pointing to the non-respect of a number of due process and fair trial rights. Some 179 persons deprived of their liberty have reportedly been forcibly transferred from prisons in Crimea to prisons in the territory of the Russian Federation. 

"176. Compelled military service: As a consequence of the imposed change of citizenship, men of conscription age residing in Crimea became subject to mandatory Russian military service requirements. There were reports of a number of young men leaving for mainland Ukraine to escape forced conscription notices from de facto authorities. Eastern Ukraine 

"177. The Office has documented more than 800 incidents involving crimes allegedly committed since 20 February 2014 in the context of events in eastern Ukraine. 

"178. Killing: Since the start of the conflict, according to the UN Office of the High Commissioner for Human Rights, some 9,578 people have been killed and 22,236 injured, including, members of the armed forces and armed groups and civilians. Between April 2014 and June 2016, up to 2,000 civilians were killed in armed hostilities, mostly (85-90%) as a result of shelling of populated areas in both government-controlled territory and areas controlled by armed groups. Other incidents reported include several civilians allegedly killed or injured by firearms, attributed to both pro-government forces and armed groups. A smaller number of summary executions of persons who were hors de combat including members of armed groups and of Ukrainian forces were also alleged. 

"179. Destruction of civilian objects: In the course of the conflict hundreds of civilian objects including residential properties, schools and kindergartens have allegedly been destroyed or damaged, largely by shelling, in both governmentcontrolled territory and in areas controlled by armed groups. In some cases it is alleged that shelling of such objects was deliberate or indiscriminate or that civilian buildings including schools have been improperly used for military purposes. 

"180. Detention: All sides have also allegedly captured and detained both civilians and fighters of the opposing side in the context of the conflict in eastern Ukraine. Ukrainian security forces are alleged to have held both civilians and alleged armed group members without due process, while “DPR” and “LPR” forces are alleged to have arbitrarily detained civilians suspected of being pro-Ukrainian and members of Ukrainian armed forces and in many cases ill-treated them. Several hundred detentions have occurred during the conflict and in many instances those detained have been exchanged in mutual prisoner releases by both sides, though often after long periods of detention. 

"181. Disappearance: More than 400 people were registered as “missing” in the context of the conflict in eastern Ukraine, though it remained unclear how many of these individuals had been forcibly disappeared. Some were believed to be alive and in detention while others may be among the large number of bodies that remained so far unidentified by the relevant authorities. Some documented instances of alleged forced disappearance have however been reported and were attributed mainly to pro-government forces. 

"182. Torture/ill-treatment: Torture or ill-treatment was reportedly perpetrated by both sides in the context of the conflict, involving several hundred alleged victims. Beatings, use of electric shocks and other physical abuse were widely documented in both government-controlled territory and in areas outside the Government’s control and allegedly targeted civilians and members of both Ukrainian armed forces and armed groups. In the majority of incidents reported the torture or ill-treatment occurred in the context of detention, frequently in “irregular” detention facilities and often during interrogation. 

"183. Sexual and gender-based crimes: While there are some documented instances of alleged sexual and gender-based crimes in the context of the conflict in eastern Ukraine, the OTP acknowledges that the information available might suffer from underreporting due to social and cultural taboos, and a lack of support services for victims in conflict-affected areas, among other factors. The majority of documented instances allegedly occurred in the context of detention and targeted male and female victims, including civilians and members of the armed forces or armed groups. These alleged crimes were attributed to both state and non-state forces. In several documented cases sexual violence, including rape, threats of rape, beating of genitals and forced nudity were perpetrated in the context of interrogations."

'Hague Tribunal Recognizes Crimean Annexation as a Military Conflict Between Russia and Ukraine,' The Moscow Times, 15 November 2016
Office of the Prosecutor, 'Report on Preliminary Examination Activities 2016,' International Criminal Court, 14 November 2016