War Crimes in Crimea
Despite lack of active hostilities, Ukraine continues to seek judgements in international courts over alleged offences.
The Crimean peninsula was occupied by Russian forces since 2014 and subsequently illegally annexed. The Ukrainian foreign ministry’s ambassador-at-large, Anton Korynevych, told IWPR’s Daniella Peled that Crimea had a key role in international justice processes to hold Russia accountable for its actions.
IWPR: In late 2020, the ICC concluded that both war crimes and crimes against humanity were likely to have been committed in Crimea and Donbas. What is the current situation with this case, and how does it chime with wider efforts to prosecute Russia for war crimes in Ukraine?
Anton Korynevych: The Ukrainian authorities began to look at crimes committed in temporarily occupied Crimea from the start of the occupation. But the situation became more effective starting from 2016 when the prosecutor's office of the Autonomous Republic of Crimea and the city of Sevastopol, which was relocated from Crimea to Kyiv, started to work more effectively on cases of potential serious violations of international humanitarian law.
So starting from 2016, this issue has been high on the agenda for Ukraine's prosecutorial authorities, and numerous Ukrainian human rights NGOs are very active in documenting information about the alleged crimes.
This is a unique situation where prosecutorial authorities and law enforcement authorities very effectively cooperate with human rights NGOs. One of the best examples is the joint submission of Article 15 of the Rome Statute communications to the Office of the Prosecutor of the ICC by Ukraine's prosecutorial authorities and human rights NGOs. I believe this is maybe the first example in history when prosecutorial authorities, together with NGOs, file joint common communications to the Office of the Prosecutor of the ICC.
And there are also people in Crimea on the ground who provide information, despite the security threats, to Ukraine's prosecutorial authorities and human rights NGOs which lack access to the temporarily occupied territory since 2014.
Regarding the December 2020 Report of the Office of the Prosecutor of the ICC, it is really important that it mentions that possibly both crimes against humanity and war crimes have been committed in Crimea. This is a very strong and powerful message.
When we talk about war crimes allegedly committed in Crimea, these are mainly grave breaches of the Fourth Geneva Convention on protection of civilians during armed conflict, and in particular in relation to abuses by the occupying authority.
It's an interesting, unique situation where war crimes apparently have been committed, though there were practically no hostilities, because the occupation is itself an international armed conflict.
In Donbas, our prosecutorial authorities and the ICC itself can look at a bigger scope of violations, maybe grave breaches of the First Geneva Convention on the Wounded and Sick and the Third Geneva Convention in relation to prisoners of war as well as the Fourth Geneva Convention.
How would potential prosecution for the crime of aggression relate to offences committed between 2014 and 2022, or after the full-scale invasion?
In relation to alleged war crimes, the situation in Crimea after the full-scale invasion is the same. The regime of occupation is still there and the occupying authorities do violate the fourth Geneva Convention. But in relation to the crime of aggression, this is an interesting issue. We hope we will have a special tribunal for this crime and will need to decide whether the temporal jurisdiction shall start in the end of February 2014, when Crimea was illegally occupied and the Russian aggression against Ukraine started, or in the end of February 2022, when the full-scale invasion started.
We believe that in relation to the crime of aggression, a future tribunal should have temporal jurisdiction from February 2014 to cover the whole Russian war against Ukraine because Russian aggression didn't start in February 2022. The issue of accountability for the crime of aggression for us is a matter of bringing to justice those who started this war with the occupation of Crimea in 2014.
Can you explain the status of cases concerning Crimea filed with the International Court of Justice (ICJ)?
I represent Ukraine's government in the ICJ as an agent and we currently have two cases against Russia. One is which we filed an application on February 26, 2022 on allegations of genocide, linked to Russia's manipulation and speculation that Ukraine has committed genocide in Donbas since 2014, and that is why Russia decided to start this so-called special military operation.
The other case deals with the issue of Crimea specifically, the case is related to the alleged violations of two conventions. The first is the International Convention for the Suppression of Financing of Terrorism, and relates to the financing of terrorist activities in Donbas and other regions of Ukraine.
The second, the International Convention on the Elimination of All Forms of Racial Discrimination deals specifically with Crimea. And this is moving forward; we had hearings on the merits in this case in June in ICJ and we hope, looking at the court's practice, that we may have a judgment on the merits this year.
It will be a very important issue for us because it might be the first judgment on the merits in all the cases of Ukraine versus Russian Federation.
So this deals with Russian violations of the Convention on the Elimination of Racial Discrimination in relation to Crimean Tatars, in particular the banning of the activity of the Crimean Tatar self-governing body, the Mejlis, education in the Crimean Tatar language, the criminal cases against Crimean Tatar leaders, and other violations.
And we also talk about violations of ethnic Ukrainians, in particular the impossibility of education in the Ukrainian language.
Given the lack of an ICJ enforcement mechanism, what are the implications of innocent or guilty verdicts there?
We strongly believe that it is important for us to have the ICJ judgments against Russia, because we went to the Court to find, declare and judge that the Russian Federation violates international law and in particular in relation to Crimea, violates the International Convention on the Elimination of Racial Discrimination.
We still lack judgments on Russian’s violations of international conventions, so we need to have this portfolio of judicial decisions, in particular from the ICJ, the UN court.
We need this both for the issue of political pressure, sanctions and any other issues. Having a judgment which will declare that the Russian Federation violates international law and specific conventions leads us to the next stage of reparations and compensations.
How do you think these cases that involve Ukraine will add to future international jurisprudence?
I think that they will influence international jurisprudence a lot, because this is an unprecedented situation. Ukraine brought applications to each and every possible international court, to actively defend our national interests and rights on the basis of international law.
We also have a name for this process: lawfare. So whereas the Russian Federation conducts warfare against us on the battlefield, we also use the legal sphere, the courts. This might really influence international jurisprudence in future.
For instance, for the first time, the International Convention on Suppression of Financing of Terrorism is being adjudicated by the ICJ. The judgment in this case may be important for the future of this convention.
In relation to allegations of genocide, in this case 33 other states presented their views on the case and 32 will do this in court. Never in ICJ history have there been such a large number of interveners. So it might also have an impact on practice in the sense that a case between two state parties to the convention could see a number of other states intervening in proceedings.
I do believe that our position is based on international law, is based on facts, and that our position is strong and the Russian Federation doesn't have the arguments to legalise and legitimise its illegal actions.
