Photo CC BY ND 4.0: OSCE / Evgeniy Maloletka. Some rights reserved.Two Ukrainian civic organisations, the Kharkiv Human Rights Group and Shore of Peace, recently published a report into violent crimes committed in the armed conflict in eastern Ukraine in 2014-2018.
Examining the destruction of residential neighbourhoods and infrastructure, unlawful arrests, torture and arbitrary executions, rights campaigners see signs of violent crime and crimes against humanity as defined by the 1998 Rome Statute. And in parallel with the report, these organisations are compiling a presentation to the International Criminal Court (ICC), which is due to be sent to The Hague in the near future.
I talked to Yevgen Zakharov, director of the Kharkiv Human Rights Group, about the prospects of these crimes being investigated.
Do you believe the ICC will investigate the crimes described in your report?
Ukraine is now at the stage when the question of whether the ICC Office of the Prosecutor (OTP) will open a preliminary investigation is being decided. This is why it makes sense to present the information that should convince the court that there are grounds for investigation. I think the OTP will begin an investigation: it seems to me there is enough proof that crimes have been committed.
The ICC only examines these kind of cases when a state isn’t doing so. It is the state’s job to investigate and prosecute such crimes and hold those responsible accountable before its national courts. When the Court decides that a state cannot or will not do this, it opens an investigation. This is the principle of complementarity, and, so far as I know, it hasn’t come up in previous submissions relating to the conflict in Ukraine – investigations on the basis of these submissions still haven’t been started.
The ICC prosecutes individuals who have committed war crimes and crimes against humanity. Do you name the people you consider guilty of these crimes?
In our submission, we talk about violent crimes, such as extrajudicial execution, the torture of POWs and unlawful detention and captivity in inhuman conditions. We present our view of how and by whom these crimes were committed and lay out the evidence proving this. We also include information on civilian deaths and civil buildings that have been destroyed, and have set up a database of civilians who have been killed or injured. We have a list of over 3,000 names of casualties, complete with full names and dates and the location and circumstances of their death.
Ukraine has not yet ratified the Rome Statute, the basis for the ICC’s work. Does this place obstacles in the way of investigations?
Not in this case. The issue is that the Ukrainian government has made two statements: in the first, it requested the ICC to investigate the events that took place between 21 November 2013 and 22 February 2014 – this is Euromaidan. In the second, it extends this request to cover the period after 22 February 2014.
Yevgen Zakharov, 2011. CC BY-SA 3.0 Wikipedia / Natalka Zubar. Some rights reserved.This is enough for the ICC OTP to begin an investigation into the conflict in Ukraine. Although, of course, Ukraine will need to ratify the ICC’s Rome Statute. There is in fact provision for this in Ukraine’s Association Agreement with the European Union and changes to its Constitution. However, these changes have now been postponed for three years.
Why do you think the Ukrainian government hasn’t ratified the Rome Statute?
The government is afraid to face accusations that its representatives, its lawful military formations, have committed crimes of the kind being prosecuted by the ICC. But this is, in fact, a mistake: if they have committed such crimes and this is proved, the guilty parties can be prosecuted, whether or not they have ratified the Statute.
What is happening with submissions to the ICC over the events of the Euromaidan?
There have been submissions claiming that actions by national forces can be regarded as crimes against humanity, but for the moment the ICC OTP has not accepted this argument and believes there are no grounds for initiating a preliminary investigation.
For a crime to be considered a crime against humanity and a war crime, you have to prove that these were crimes of a large-scale and systematic nature. If you look at the practice of the ICC, they usually understand “large-scale” as the deaths of more than 1,000 people. During Euromaidan, the death count was much lower. And as for a systematic nature, these events happened in Kyiv and although there were similar events in other cities, they couldn’t be regarded in the same light as there were practically no casualties. But this issue remains open – the OTP is ready to hear additional argumentation and can change its point of view.
Some people believe that investigation of these crimes should be left until after the end of the conflict. What do you think?
It’s very difficult to investigate anything while the war continues. How can you investigate crimes committed in areas outside governmental control, if the relevant agencies have no access to them and it is impossible even to inspect their location, collect evidence or question the people involved? Once the conflict is put on hold, all the dead will be identified and buried – at present there are masses of unidentified casualties on both sides of the demarcation line – only then can we start talking about amnesty and reconciliation.
We have to recognise that we can’t just sit and wait until the war comes to an end. As time passes, evidence disappears
On the other hand, we have to recognise that we can’t just sit and wait until the war comes to an end. As time passes, evidence disappears. So we need to do what we can. Unfortunately, this means talking about the lack of action on the part of Ukraine’s government authorities – the police, the prosecutor’s office and the security services, who have carried out hardly any investigations into these crimes.
Meanwhile, the military prosecutor’s office is investigating crimes against POWs and civilian hostages who have been held captive under appalling conditions, tortured and denied medical help. Hundreds of people have been killed in captivity. To investigate this part of the picture, we need to at least question everyone who has since been released (official figures put their number at 3,244). The military prosecutor’s office is now quizzing each one of these people, trying to identify lawbreakers – torturers, people who held others captive. This should have been happening a long time ago, from the very start of the conflict.
Apart from the military prosecutor’s office, what other official bodies are engaged in documenting violent crimes taking place during the conflict in Eastern Ukraine?
The problem is that until 30 April this year, the conflict was officially regarded as an “Anti-Terrorist Operation”, so if a shell fell on a house during a rocket attack, its destruction, or the deaths of anyone living in it, were seen as an act of terrorism, rather than a war crime. And terrorist acts fall under the jurisdiction of the Security Service of Ukraine, which does not have the resources to investigate such an enormous number of crimes (40,000 residential buildings have been destroyed during the conflict). In order for them to be investigated, they would first have to be reclassified as war crimes.
The Security Service, in its turn, is responsible for handling crimes linked to separatism and treason. But mass phenomena such as injuries, civilian casualties and the destruction of property are simply not investigated. When the question arises of crimes committed in areas that are not under government control, the authorities usually fall back on the excuse that they have no access to them. But in fact, even crimes committed in areas that are under government control aren’t being investigated. But things are finally changing – the national police’s Central Investigation Department has set up investigation teams to look into the issue.
A State of Emergency was recently imposed in Ukraine’s border regions. How might this affect its citizens’ access to their constitutional rights?
I don’t think it will have any effect. There’s an old Soviet joke about how government apparatchiks would answer any question from Western journalists with the statement: “but this will have no effect on the prosperity of Soviet citizens”. It’s the same thing now: we’ve reduced Ukrainians’ pay, but this will have no effect on their prosperity; we’ve raised utilities charges by 30%, but this will have no effect on citizens’ prosperity; we’ve imposed a State of Emergency, but this will have no effect either. But, to tell the truth, we could hypothetically expect this measure to be used to limit the public’s rights. It’s hard to say yet. They’ve made verbal promises that it won’t happen, but their written statements are more ambiguous. In other words, it all depends on whether the government decides to do it, or not. I don’t think it should seriously affect the situation.
Do you think the large number of attacks on civil rights activists is linked to revolution and conflict in Ukraine?
Indirectly, yes, because in general there is now a greater tolerance of violence. But attacks on activists are more often to do with local property disputes, when the warring sides look for allies in the voluntary sector. And when we talk about attacks on activists, we need to look at each instance individually. I don’t think the situation is as black and white as it is often portrayed. Each case is different, and you can’t just say that they’re not being investigated. I have checked the information on the 12 cases with the most serious consequences, and they have all been investigated, although admittedly, none of the perpetrators have been found.
As well as attacks on activists, we have seen an increase in pogroms against Roma settlements. Would it be right to say that Ukrainian law enforcement is not interested in qualifying these crimes as a violation of Ukrainian citizens’ equality?
That’s hard to say, because you have to prove criminal intent. Here, the concept of intent is interpreted somewhat simplistically – someone would have had to find an order to destroy the Roma settlement. It was more as though someone said, “Boss, your instruction to burn the Roma settlement has been carried out.” That’s why there are very few cases brought here under the criminal charge of violating citizens’ equality. Moreover, the Roma don’t want to participate in the investigation. On the other hand, we can see society’s attitude to Roma, we can see xenophobia. It’s wrong to think that representatives of the police are much different from other members of society.