Oleksii Plotnikov (PhD, international judiciary)

The occupation of Crimea is not always perceived as a full-fledged armed conflict, because there were practically no actual hostilities, and the occupying power generally cultivates the myth of the allegedly “bloodless inclusion of Crimea into Russia” [1] [2].

At the same time, political persecution, disappearances, extrajudicial killings and other serious violations that can be considered crimes against humanity are well known. However, from the point of view of international criminal law, the first crimes of the occupiers in Crimea, except for the crime of aggression, in respect of which Ukraine did not recognize the jurisdiction of the International Criminal Court, were precisely war crimes. This refers both to the crimes committed during the “hot” phase of the occupation, but also to the ongoing, systematic and gross violations of international criminal law in the form of war crimes, which are not inferior in scale to crimes against humanity.

The international armed conflict between the Russia and Ukraine in Crimea has been ongoing since February 2014 and has never ended. The absence of fighting does not mean the absence of conflict. According to Common Article 2 of the Geneva Conventions of 1949, these conventions apply “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. The conventions are also used “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance” [3]. The Additional Protocol to the Geneva Conventions of 1977 confirms that the Conventions and the Protocol apply until the cessation of hostilities, “and, in the case of occupied territories, on the termination of the occupation except, in either circumstance, for those persons whose final release, repatriation or re-establishment takes place thereafter.

These persons shall continue to benefit from the relevant provisions of the Conventions and of this Protocol until their final release, repatriation or re-establishment” [4]. That is, any occupation is automatically an armed conflict until it ends. Any person deprived of their liberty or displaced by an armed conflict continues to enjoy the protection of the law of armed conflict until they return, which means that, for example, a war crime can be committed against a prisoner of war who continues to be held captive, even if the conflict itself has long ended.

The situation in Crimea is nothing but an occupation. Therefore, it is incorrect to use the term “annexation” in respect of Crimea [5], because “annexation” in international law refers to the acquisition of a state territory by force, which, however, creates some demands on its sovereign title. Annexations are completely prohibited in contemporary international law, and there is no possibility to legally acquire state territory by force [6]. According to Article 8bis of the Rome Statute of the International Criminal Court, annexation is one of the manifestations of the international crime of aggression, which entails international criminal responsibility.

It is in this direction that the position of the International Criminal Court is developing. Back in 2016, its Prosecutor’s report unequivocally stated: “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 … 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.… For purposes of the Rome Statute an armed conflict may be international in nature if one or more States partially or totally occupies the territory of another State, whether or not the occupation meets with armed resistance.” [7].

The Rome Statute contains an extensive catalogue of war crimes, of which the Prosecutor’s Report 2020 highlights the following:

1) wilful killing, pursuant to article 8 (2) (a) (i);

2) torture, pursuant to article 8 (2) (a) (ii);

3) outrages upon personal dignity, pursuant to article 8 (2) (b) (xxi);

4) unlawful confinement, pursuant to article 8 (2) (a) (vii);

5) compelling protected persons to serve in the forces of a hostile Power, pursuant to article 8 (2) (a) (v);

6) wilfully depriving protected persons of the rights of fair and regular trial, pursuant to article 8 (2) (a) (vi);

7) the transfer of parts of the population of the occupied territory outside this territory (with regard to the transfer of detainees in criminal proceedings and prisoners), pursuant to article 8 (2) (b) (viii);

8) seizing the enemy’s property that is not imperatively demanded by the necessities of war, with regard to private and cultural property, pursuant to article 8 (2) (b) (xiii) of the Statute.

This list only displays a preliminary estimate and may be updated in the future. It should also be understood that “protected persons” in the meaning of the Geneva Conventions of 1949 means in general the entire population of the occupied territory. It is subject to the Convention for the Protection of Civilian Persons in Time of War, which applies regardless of the fact of hostilities during the entire period of occupation [8]. Therefore potentially any violation of the provisions mentioned above could give rise to international criminal responsibility.

However, the criterion of severity should also be taken into account. This criterion can be assessed in terms of the seriousness of the crime for the victim and in terms of its scale and systematic character. This means that, for example, murder is highly likely to be considered a fairly serious crime, since it causes severe and irreversible consequences for the victim and their relatives. A single act of degrading treatment is unlikely to be considered serious enough to merit consideration by the International Criminal Court. However, if such degrading treatment is part of a planned and large-scale campaign, then such a one-time act can be considered a manifestation of a sufficiently serious crime. With this in mind, in Crimea, one can outline individual events that in themselves would be considered international crimes, and large-scale and systematic acts indicating planned criminal activity.

The most severe of such individual acts took place during the “hot” phase of occupation of Crimea. Firstly, this is the murder of Ukrainian prisoner of war S.V. Karachevsky, who was shot after the capture of Ukrainian military units in the Crimea [9] [10]. Secondly, it is the abduction, probable torture and murder of Ukrainian and Crimean Tatar activists, in particular R. Akhmetov, who was abducted and later found dead, I. Bondarts, V. Vashchuk, V. Chernysh, T. Shaymardanov, S. Zinedinov, who were abducted, whose fate is unknown, as well as the abduction and torture of other activists who were later released [11].

From the point of view of international criminal law, these acts constitute murder, torture and other forms of ill-treatment of civilians. Each of these actions is itself grave enough to constitute a war crime. Taken together, they may lead to a conclusion that they are not individual acts of cruelty, for which the perpetrators and their immediate superiors are responsible, but a systematic policy of terror, for which the persons who carried out the overall leadership of the occupation of Crimea are responsible.

Secondly, we are talking about crimes committed against prisoners of war, not only in framework of S.V. Karachevsky’s case. According to the 1949 Geneva Convention Relating to the Treatment of Prisoners of War, not only members of the armed forces are considered prisoners of war, but also members of militias and voluntary detachments and organized resistance movements accompanying the armed forces, such as civilians on ships and aircraft, war correspondents, suppliers, etc. Persons from the armed forces interned by the occupying power are also equated to prisoners of war.

Thus, the Ukrainian servicemen and civilian personnel of the armed forces captured or detained during the “hot” phase of the occupation of Crimea in Ukrainian military units and on ships, servicemen who fell into the hands of the occupiers later [12], Ukrainian sailors captured during the incident in the Kerch Strait [13] do fall under the definition. The available information suggests that Russia did not ensure that all these persons were treated as prisoners of war. For example, with regard to Ukrainian sailors, fair trial standards were allegedly violated.

In addition to the crimes established during the preliminary examination of the situation by the International Criminal Court’s Prosecutor, there is credible evidence about at least one more serious and morally repulsive act of the occupiers, which clearly falls under the definition of a crime under the Rome Statute: utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations.

The phrase of the Russian leader is well-known: “And let’s see those troops try to shoot their own people, with us behind them – not in the front, but behind. Let them just try to shoot at women and children!”[14]. This could be considered an unfortunate figure of language, but there are numerous testimonies, photos and videos confirming that Russian military and paramilitary groups seized Ukrainian facilities in Crimea under the cover of civilians [15]. Relevant information was transferred to the International Criminal Court [16]. It remains to be hoped that this Court will take this information into account at the stage of investigating the situation in Ukraine.

The war crimes of the occupiers were not limited to actions against Ukrainian servicemen, civil servants and activists. These crimes led to grave consequences, but the most massive war crimes were committed and continue to be committed against the civilian population of the occupied territory during the entire period of occupation. This will be discussed in the next article of this series.

Sources:

1. https://www.interfax.ru/russia/365492https://www.interfax.ru/russia/365492

2. https://ridna.com.ua/show-article/rpts-putin-pomeschen-na-mozaiku-pod-nazvaniem-beskrovnoe-prisoedinenie-kryima-v-hrame-minoboronyi-rf-1126

3. https://zakon.rada.gov.ua/laws/show/995_151#top

4. https://zakon.rada.gov.ua/laws/show/995_199#Text

5. https://suspilne.media/72704-u-minreintegracii-poasnili-comu-krim-okupovanij-a-ne-aneksovanij

6. https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24716&LangID=E

7. https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf

8. https://zakon.rada.gov.ua/laws/show/995_154#Text

9. https://memorybook.org.ua/14/kokurin.htm

10. https://memorybook.org.ua/14/karachevsky.htm

11. https://www.radiosvoboda.org/a/28386922.html

12. https://genichesk.ipc.org.ua/uk/2020/05/bilya-adminkordonu-z-krymom-vykraly-ukrayinskogo-vijskovogo

13. https://www.eurointegration.com.ua/tags/kerch-azov

14. https://echo.msk.ru/blog/o_chelysheva/1272540-echo/

15. https://helsinki.org.ua/articles/rf-pid-chas-okupatsii-krymu-vykorystovuvala-zhyvi-shchyty-zelenykh-cholovichkiv-ta-zastosovuvala-virolomstvo-doslidzhennia/ 16. https://zmina.info/news/pravozahisniki_peredali_do_gaagi_dokazi_vikoristannjia_rosijejiu_zhivih_shhitiv_pid_chas_okupaciji_krimu_/