War Crimes Committed During the Armed Conflict in Ukraine: What Should the ICC Focus On?

Atadjanov, Rustam

doi:10.1007/978-94-6265-222-4_18

Rustam Atadjanov³

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3 Citations
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Abstract

Despite the claims that the ongoing armed conflict in Ukraine has become a “frozen zone”, the reality demonstrates such a characterization runs afoul of the facts: hostilities continue on, with the increasing number of cases of massive human rights violations following the use of force by the Russian Federation in Crimea and its participation in the conflict in Eastern Ukraine. According to multiple reports, those violations in many cases amount to war crimes. It is thus necessary to ensure a proper compliance with legal rules applicable in the course of armed conflict, i.e., rules of international humanitarian law. Making sure the perpetrators of such crimes are brought under proper responsibility in accordance with relevant international criminal law standards is of equal importance. The matter of analysing and properly qualifying the human rights violations as crimes under the jurisdiction of the ICC will be a central substantive task of the Prosecution team and the Court if the situation makes it to the case. This Chapter deals with the qualification of war crimes as pertains to the armed conflict in Ukraine. Its main aim is to consider the relevant IHL norms and apply them to the alleged acts. This is instrumental in a proper determination of what criteria could be helpful for the ICC in ensuring the criminal responsibility of those who committed – and continue to commit, the horrible acts on both sides of the conflict. Eventually, the Chapter will argue that adjudicating war crimes committed in Ukraine by all parties at the ICC level represents an imperative task if the claimed purpose of international criminal law to bring the perpetrators of international crimes to justice is viable at all.

The author is Dr. jur. (Ph.D.) Candidate in International Criminal Law, Faculty of Law, University of Hamburg.

Rustam B. Atadjanov, Universität Hamburg, Fakultät für Rechtswissenschaft, Rothenbaumchaussee 33, 20148 Hamburg, Germany. e-mail: rustamatadjanov1@gmail.com.

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Notes

1.
Altshuller 2017, at 8.
2.
Ibid.
3.
A. Prentice, ‘Ukraine Says More Soldiers Killed In Deadliest Clashes In Weeks’, Reuters (US edition), 30 January 2017.
4.
Human Rights Watch 2017, at 621.
5.
The UNHRMMU reported a 66 percent increase in civilian casualties from May to August compared to earlier in 2016, and documented 28 civilian deaths in the summer, many of which resulted from shelling and land mines. Ibid.
6.
International Criminal Court, Office of the Prosecutor 2016, at 35, 37, paras 158, 168.
7.
See the most recent list of State Parties to the ICC available at https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx Accessed 25 February 2017. Russia is not a State Party either.
8.
Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90, Article 8 (hereinafter: Rome Statute).
9.
See, for example, Werle and Jessberger 2014, at 410, para 1076.
10.
Henckaerts and Doswald Beck 2005. The gradual merging of two regimes can also be supported by the jurisprudence of international criminal tribunals, the influence of human rights law as well as some treaty rules adopted by States which may be said to have moved the law of armed conflicts not of an international character closer to the law of international armed conflicts.
11.
The leading international case law has long found that, despite the overall lower number of provisions of Common Article 3 of the Geneva Conventions and their Additional Protocol II, IHL extends further in NIAC than the written law. The famous Tadic decision of the ICTY concluded that a large number of prohibited acts under IHL are covered by customary law and apply in NIAC as well. Moreover, the Tribunal determined that IHL violations applicable to NIAC can be criminal under customary international law. Prosecutor v. Duško Tadić, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1, 2 October 1995, paras 119–120, 128 et seq. Also Werle and Jessberger 2014, at 406–408, paras 1069–1070.
12.
International Criminal Court, Office of the Prosecutor 2016, at 35, para 158. Concerning the status of the city of Sevastopol and the legal contradiction between this status and the constitutional law of the Russian Federation, see the excellent argumentation (in Russian) in Luk’janova E 2015.
13.
For a succinct overview of the events related to Maidan as well as events in Crimea and Eastern Ukraine from 20 February onwards, see International Criminal Court, Office of the Prosecutor 2016, at 34–38.
14.
Ibid., at 35, para 158.
15.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287–417, Articles 2, 6, 47–78, hereinafter Geneva Convention IV; Protocol I Additional to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3–434, reprinted in 16 I.L.M. 1391 (1977), Articles 1, 3–4, 33–34, 59, and 99; hereinafter Protocol I.
16.
Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (Hague Regulations), The Hague, 18 October 1907, reprinted in Roberts and Guelff 2000; hereinafter Hague Regulations (referring to the articles in the Annex).
17.
See International Committee of the Red Cross 2016, Common Article 2, para 297.
18.
Hague Regulations, Article 42. The view that there exists only one confirmed definition of occupation in the existing treaty law has been confirmed by the case law of the International Court of Justice (ICJ) and International Criminal Tribunal for the Former Yugoslavia (ICTY), see ICRC 2016, para 298.
19.
See International Committee of the Red Cross 2016, para 304.
20.
International Criminal Court, Office of the Prosecutor 2016, at 35, para 157.
21.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31–83 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85–133 (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135–285 (Geneva Convention III); Geneva Convention IV; hereinafter Geneva Conventions, or a specific numbered Convention; Protocol I.
22.
See ICRC, ‘States Party to the Following International Humanitarian Law and Other Related Treaties as of 14 February 2017’ (listing all the four Geneva Conventions and their Additional Protocols), https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountry.xsp Accessed 25 February 2017.
23.
Geneva Conventions, Common Article 2.
24.
The presence of the Russian armed forces in Eastern Ukraine amounts to the participation of the Russian Federation as a full party to the conflict and proves the nature of this conflict being an IAC as argued below.
25.
International Criminal Court, Office of the Prosecutor 2016, at 37, para 168.
26.
Ibid.
27.
Geneva Conventions, Common Article 3; Protocol II Additional to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 609–699; hereinafter Protocol II.
28.
Protocol II, Article 1.
29.
Rome Statute, Article 8(2)(f).
30.
The element of protracted time can also be a clear sign of the intensity of the conflict.
31.
Marco Sassòli et al. 2011, Part I, Chapter 2, Section III, at 22–23, n. 38.
32.
International Criminal Court, Office of the Prosecutor 2016, at 38, para 170.
33.
Ibid.
34.
Ibid.
35.
See Werle and Jessberger 2014, at 420, para 1104, citing the ICTY case law (Tadic).
36.
Ibid.
37.
The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber, Judgement pursuant to Article 74 of the Statute, Case No. ICC-01/04-01/06, 14 March 2012, para 540; also Werle and Jessberger 2014, at 420, para 1104.
38.
Prosecutor v. Duško Tadić, Appeals Chamber, Judgement, Case No. IT-94-1-A, 15 July 1999, paras 116–145.
39.
S. Walker, ‘Putin admits Russian military presence in Ukraine for first time’, The Guardian, 17 December 2015; https://www.theguardian.com/world/2015/dec/17/vladimir-putin-admits-russian-military-presence-ukraine Accessed 24 February 2017.
40.
For a more detailed analysis of the Russian involvement (including Crimea) affecting the conflict qualification, see International Partnership for Human Rights 2015 at 21–26.
41.
This content-based categorization is borrowed from a useful description in Werle and Jessberger 2014, at 427–526, also p. 410, para 1076. It is also similar to the logic of the German Code of Crimes Against International Law [Völkerstrafgesetzbuch, oder VStGB]. Ibid., n.142.
42.
Ibid., at 391–392, para 1029. ICC in its work is applying a long and complicated definition established in the Rome Statute’s Article 8 which names as war crimes the grave breaches of the 1949 Geneva Conventions and other serious violations of the laws and customs applicable in IAC as well as serious violations of the laws and customs applicable in NIAC, with the ensuing detailed list of individual acts constituting the crimes. Rome Statute, Article 8. As we will see, not all of the said acts may be found in the contexts of the armed conflict in Ukraine which certainly in no way diminishes the necessity of investigating and prosecuting those responsible for their commission. It is important to note here that due to the limited space, the present Chapter will not be able to consider in detail all the alleged acts or to analyse all the important aspects of the gave breaches of IHL related to qualifying those acts as war crimes.
43.
See Werle and Jessberger 2014, at 422, paras 1109 et al.
44.
International Criminal Court, Office of the Prosecutor 2016, at 40–41, paras 185–188.
45.
Naming the available news sources as “partisan sources”. Altshuller 2017, at 8.
46.
The OTP Report states that the Office has compiled a comprehensive database of over 800 incidents of violations in Eastern Ukraine alone since February 2014 while the overall number of pages of the documented accounts from witnesses and victims amounts to more than 7000 (!). International Criminal Court, Office of the Prosecutor 2016, at 40–41, paras 185–186.
47.
Geneva Conventions: Geneva Convention I, Article 50; Geneva Convention II, Article 51; Geneva Convention III, Article 130; Geneva Convention IV, Article 147.
48.
ICC Elements of Crimes, reproduced from the Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, 1^st session, New York, 3–10 September 2002 (UN publication, Sales No. E.03.V.2 and corrigendum), part II.B. Article 8(2)(a)(i) of the Rome Statute, num.1; hereinafter Elements of Crimes.
49.
Werle and Jessberger 2014, at 432, para 1140.
50.
International Criminal Court, Office of the Prosecutor 2016, at 38, para 173; Human Rights Watch 2014, at 7–8; see also Amnesty International 2015–2016, at 381–382.
51.
Geneva Conventions: Geneva Convention I, Article 50; Geneva Convention II, Article 51; Geneva Convention III, Article 130; Geneva Convention IV, Article 147.
52.
International Criminal Court, Office of the Prosecutor 2016, at 38, paras 171, 174.
53.
Human Rights Watch 2014, at 2, 20, n.1; see also Amnesty International 2015–2016, at 381–382. It will be important for the ICC to note the significant overlaps/differences between the war crime of torture and torture as a crime against humanity (Article 7(1)(f) of the Rome Statute) as well as the requirements for torture in accordance with international human rights law (IHRL), e.g., the necessity to act in an official capacity. See Prosecutor v. Kunarac et al., Appeals Chamber, Judgement, Case No. IT-96-23 & IT-96-23/1-A, 12 June 2002, para 148.
54.
Ibid.
55.
See, e.g., the relevant case-law of the ICTY such as Prosecutor v. Milan Lukić and Sredoje Lukić, Appeals Chamber, Judgement, Case No. IT-98-32/1-A, 4 December 2012, para 634.
56.
Prosecutor v. Mucić et al., Trial Chamber, Judgement, Case No. IT-96-21-T, 16 November 1998, para 442.
57.
Ibid., paras 567, 577; see also Dörmann, in Triffterer 2008, Article 8, at 318, para 28.
58.
The ICC will need to carefully distinguish between war crime of deportation or forcible transfer and the corresponding crime against humanity of deportation or forcible transfer of the population (Article 7(1)(d) of the Rome Statute) as the law of crimes against humanity can apply in times of both peace and armed conflict. There are some notable differences in corpus delicti to be kept in mind (e.g., the requirement of prior legal residence).
59.
International Criminal Court, Office of the Prosecutor 2016, at 39, para 175; Human Rights Watch 2014, at 11–12.
60.
Elements of Crimes, Article 8(2)(a)(vi), at 11, num. 1. For a detailed and comprehensive list of those guarantees, see Werle and Jessberger 2014, pp. 450–451, para 1203.
61.
Human Rights Watch 2014, at 11–12.
62.
Hague Regulations, Article 23(h).
63.
International Criminal Court, Office of the Prosecutor 2016, at 39, para 176; Human Rights Watch 2014, at 28.
64.
The primary purpose of Common Article 3 is to extend the “elementary considerations of humanity” to NIAC; thus, the differing terminology bears no major significance. Prosecutor v. Mucić et al, Trial Chamber, Judgement, Case No. IT-96-21-T, 16 November 1998, paras 420 et seq.; Werle and Jessberger 2014, at 431, para 1138.
65.
International Criminal Court, Office of the Prosecutor 2016, at 39, para 178; United Nations Office of the High Commissioner for Human Rights September 2016.
66.
International Criminal Court, Office of the Prosecutor 2016, at 39, para 178.
67.
See Werle and Jessberger 2014, at 432, para 1140; Prosecutor v. Pavle Strugar, Trial Chamber, Judgement, Case No. IT-01-42-T, 31 January 2005, paras 237 et seq.
68.
According to the ICC Prosecutor, several hundred acts of detention occurred overall in the course of the conflict. International Criminal Court, Office of the Prosecutor 2016, at 39, para 180; United Nations Office of the High Commissioner for Human Rights 2016, May 2016, United Nations Office of the High Commissioner for Human Rights 2016, September 2016, at 13–16, 21–22; International Partnership for Human Rights 2015, at 50–75; also Bielousov et al. 2015, at 26–37.
69.
See United Nations Office of the High Commissioner for Human Rights 2016 September 2016, at 20–21; Bielousov et al. 2015, at 26–37.
70.
United Nations Office of the High Commissioner for Human Rights 2016, September 2016, at 13–16; International Criminal Court, Office of the Prosecutor 2016, at 40, para 182; Amnesty International 2015–2016, at 379–380; Human Rights Watch 2017, at 621–622; a rather scrupulous report details the instances of torture and other forms of mistreatment by both Ukraine and separatists: see Amnesty International, Human Rights Watch 2016; International Partnership for Human Rights 2015, at 50–75; Bielousov et al. 2015, pp. 55–74.
71.
Werle and Jessberger 2014, at 442, para 1173–1176.
72.
Geneva Conventions: Geneva Convention IV, Article 27(2); Protocol I, articles 75(2) and 76(1); Protocol II, Article 4(2)(e).
73.
International Criminal Court, Office of the Prosecutor 2016, at 40, para 183; United Nations Office of the High Commissioner for Human Rights 2017.
74.
For a corresponding international case-law supporting this view, see Werle and Jessberger 2014, at 441–443, paras 1173–1180.
75.
International Criminal Court, Office of the Prosecutor 2016, at 39, para 179; International Partnership for Human Rights 2015, at 86–95.
76.
For an exemplary analysis of that evidence and corresponding factual/legal conclusions, see International Partnership for Human Rights 2015, at 34–49.
77.
Geneva Conventions: Convention I, Articles 19–23; Convention II, Articles 22–24, 35; Convention IV, Articles 14, 18–19; Protocol I, Articles 12, 85(4).
78.
Human Rights Watch 2016.
79.
For an encompassing overview of that case law, see in general Werle and Jessberger 2014.
80.
Rome Statute, Article 21(2).
81.
See for more detail on this point Werle and Jessberger 2014, at 422–425, paras 1109–1115.
82.
For an exemplary overview of ICC’s pre-investigation and investigation stages as well as an exhaustive analysis of the situation/case selection criteria by the Court, see in general Stegmiller 2011.
83.
These reasons are only briefly sketched here due to limited space.
84.
International Criminal Court, Office of the Prosecutor 2016, Paper, at 12–14, paras 34–41.
85.
Ibid., at 12, para 33.
86.
E. Igunza, ‘African Union Backs Mass Withdrawal from ICC’, BBC News, 1 February 2017; but see also G. York, ‘New Setback for African Rebellion Against International Court’, The Globe and Mail, 22 February 2017.
87.
For a convincing argumentation against such allegations, see Mendes 2010, at 168.
88.
For an exemplary analysis of why Russia’s withdrawal would not protect it from ICC’s prosecution, see Sayapin 2016.

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Fakultät für Rechtswissenschaft, Universität Hamburg, Rothenbaumchaussee 33, 20148, Hamburg, Germany
Rustam Atadjanov

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School of Law, KIMEP University, Almaty, Kazakhstan
Sergey Sayapin
Tallinn University of Technology, Tallinn Law School, Tallinn, Estonia
Evhen Tsybulenko

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Atadjanov, R. (2018). War Crimes Committed During the Armed Conflict in Ukraine: What Should the ICC Focus On?. In: Sayapin, S., Tsybulenko, E. (eds) The Use of Force against Ukraine and International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-222-4_18

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