There has been an increasing number of reports about the organized export of stocks of grain and other foodstuffs by the Russian Federation from the occupied territories of Ukraine, in particular Kherson and Zaporizhia regions [1, 2, 3].

Such actions are not only associated with the worst crimes of the twentieth century, such as the Holodomor and the extraction of Ukrainian grain by the Nazis during World War II [4], but are also a direct violation of Russia’s international obligations and an international crime, which entail responsibility of the state under international law and international criminal responsibility for specific perpetrators.

This responsibility will become inevitable at some point of time. The actions of the occupiers must already be assessed in the perspective of such responsibility. At the same time, it is worth assessing what legal levers Ukraine can use to thwart the enemy’s plans.

ARC’s expert Oleksiy Plotnikov, PhD, international judiciary researched this situation.

The export of forcibly seized food is, firstly, an international illegal act of the state of the Russian Federation in violation of the basic requirements of international humanitarian law. According to Article 55 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, “to the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.

The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account. Subject to the provisions of other international Conventions, the Occupying Power shall make arrangements to ensure that fair value is paid for any requisitioned goods. The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical supplies in occupied territories, except where temporary restrictions are made necessary by imperative military requirements.”[5].

Additional Protocol I to the Geneva Conventions (Article 54) prohibits the use of starvation of civilians as a method of warfare and states that “it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive” [6].

The actions of the Russian Federation in the occupied territories in their purpose and nature are a clear violation of these requirements. According to reports, the Russian Federation does not take into account the food needs of the population of the occupied territories. On the contrary, there are reasons to believe that it uses starvation and suffering of the civilian population as a method of warfare aimed at undermining the will of Ukrainian defenders. There have been numerous reports that the Russian forces prevent vital humanitarian aid like critical food and essential goods to civilians from entering the war zone, [7] which has been carefully confirmed by the United Nations [8].

At present, it is impossible to establish exactly how food is confiscated in the occupied territories, but even the Russian authorities themselves use the term “expropriation” [9], i.e. forced alienation of property. There is no information on any forms of reimbursement for food confiscated from Ukrainian owners. Such confiscation of property is a violation not only of international humanitarian law and human rights law, but also of the Russian constitution, which guarantees everyone the right to property, and that property can be confiscated only by court decision and subject to prior fair compensation [10].

Secondly, the removal of food from the occupied territories is a crime under both international criminal law and the criminal law of Ukraine. Under international criminal law, depending on the facts, such actions may fall under the definition of genocide, crime against humanity or war crime.

If the export of food leads to starvation and death in the occupied territories, such actions can be considered as genocide in the form of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” (Article 6 (c) of the Rome Statute).

Such actions may fall under the definition of exterminationas a crime against humanity. According to Article 7 of the Rome Statute, extermination is “intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population”(unlike genocide, extermination is not directed against a specific group or motivated by the desire to destroy a particular group).

Finally, the occupiers’ actions show signs of a war crime under Article 8 of the Rome Statute, including “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (Article 8 (2) (iv) , “destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” (Article 8 (2) ( xiii), “pillaging a town or place, even when taken by assault” (Article 8 (2) ( xvi), ”intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions”(Article 8 (2) ( xxv) [11].

It is important that although Ukraine is not a party to the Rome Statute and has not yet brought its criminal legislation into line with the Statute, these acts can still be classified under the Criminal Code of Ukraine, the state in which they take place. In particular, they can be considered a violation of the laws and customs of war (Article 438 of the Criminal Code of Ukraine) or genocide (Article 442 of the Criminal Code of Ukraine).

Despite the obviousness of the act, neither judging of the Russian Federation as a state nor punishing individual criminals will be possible as long as the current political regime exists in Russia, and the overthrow of this regime does not seem to be connected with political and military rather than legal realities. However, this does not mean that legal means should be abandoned altogether. They can and should be used, and the fact that the aggressor state is trying to export the seized food through the Crimean ports can be useful.

There is information that the aggressor state plans to spend part of the products seized in Ukraine for its own consumption, and to export the other part. The latter is not surprising, as the Russian invasion of Ukraine and sanctions against Russia have led to a sharp rise in the value of grain on world markets [11], which increased by almost 20% in March alone [12]. The complete cessation of Ukrainian food exports to Africa and the Middle East puts these regions on the brink of starvation [13]. The problem is so serious that the head of the UN World Food Program has personally called on the Russian leader to unblock grain exports from Ukrainian ports, as the continued blockade threatens millions of people with starvation [14].

Another body that should be mentioned here is the International Grains Council. This intergovernmental organization oversees international grain trade under the 1995 International Grain Agreement. The Council cannot directly influence trade issues, but its positions are important for other international organizations, including the United Nations. From June 2021, the Council is chaired by a representative of Ukraine [16].

On April 6, 2022, the Council adopted a resolution strongly condemning the aggression of the Russian Federation against Ukraine and called for an immediate cessation of hostilities, including attacks on agricultural facilities, as well as immediate cessation of blockade of grain exports from Ukraine.

Although the Council cannot physically stop the practice of stealing and exporting Ukrainian grain, it is fully empowered to collect information on any international movements of grain and characterize it as legal or illegal, which in turn will affect buyers’ decisions and is likely to exclude the possibility of purchasing such stolen grain in most countries, as well as affecting its price and associated costs, making it difficult or impossible to export.

However, how to distinguish legitimate Russian grain exports from Russia’s export of stolen grain from Ukraine? Geography and logistics become helpful here. Under normal circumstances, such export operations were carried out by Ukrainian ports on the Black and Azov Seas. Russia has seized the ports of Kherson and Mariupol, but the former cannot be used because the route from it into the open see runs in the proximity of Ochakiv, which is controlled by Ukraine, and the latter port is destroyed.

There are, of course, smaller ports, such as Skadovsk (grain export is one of its specialties [18]) or Berdyansk, but the amount of grain that can be exported through them is extremely limited due to nearby fighting and logistical considerations (for example, there is no railway in Skadovsk). Of course, it is possible to export grain across the Crimean bridge, for example to the port of Novorossiysk, but such an operation will be much more expensive due to transport costs.

The most convenient for the occupier is the export of grain through the occupied Crimea. This is not an assumption, but a fact. The first “swallows” of illegal grain exports have already flown out of Crimean ports. For example, a cargo ship “Matros Pozynych” tried to bring around 27 000 tons of grain from the occupied Sevastopol to Libya and Egypt. After refusal, it sailed to the Syrian port of Latakia controlled by Assad regime. According to Ukrainian intelligence, the Crimea-Syria route, according to the aggressors, should become the main route for the illegal export of Ukrainian grain with its subsequent resale to the Middle East [20]. At the same time, there is information about the export of grain to Turkish ports [21].

Ukrainian diplomacy is actively working to counter such exports [22] [23]. The Ukrainian Foreign Ministry explicitly calls the “export” of Ukrainian grain criminal, and the countries that receive such grain complicit in the crime, which the Foreign Ministry describes as “marauding by the Russian authorities”. It is impossible not to support these efforts of the Foreign Ministry, but it should be emphasized that this is not marauding, which is essentially a crime committed by an individual soldier for their own enrichment, but much more serious international crimes against humanity, war crimes and genocide.

The perpetrators of the crime here are not abstract “states that buy stolen grain”, but specific decision-makers. Such officials should be aware that the decision to purchase stolen grain creates a personal and completely real risk of prosecution in in international criminal proceedings and national criminal proceedings for complicity in an international crime.

All the conditions for this are present. It is obvious that the forcible removal of grain from the occupied territories is an international crime. Specific Ukrainian grain is very easy to identify and separate from the rest of Russia’s grain exports due to the fact that such grain is exported by water through the ports of the occupied Crimea.

The point is small: a clear position is needed that the abduction and sale of Ukrainian grain is an international crime, and all perpetrators and accomplices will be brought to justice. This position should be communicated to the international community and decision-makers in countries that are potential importers of this grain.

The International Grains Council, in which Ukraine still holds the presidency, could be a convenient platform for spreading this position.

Also there is information that Ukrainian Independent Maritime Trade Union (UIMTU) is all-Ukrainian independent maritime trade union, with strong activities of defending Ukrainian seafarers’ rights, sent the relevant submission to more that 60 maritime and dockers’ trade unions of civilized nations.

UIMTU asked them to support, in the framework of the seafarers’ solidarity, the sanction policy against all vessels flying Russian flag, with Russian owners, ship-owners or agents, with documents issues by Russian registers, or Russian maritime insurance structures, and against all vessels with cargo to and from Russia that may be used in the military purposes.

UIMTU already got answers from the European Transport Workers’ Federation and international “Nautilus” organization of trade unions with full support of relevant position regarding labour blockade the relevant vessels, including that transfer Ukrainian grain illegally.

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