Accountability for Crimes Committed in Eastern Ukraine: Q&A on FIDH-KHPG’s Article 15 Communication to the ICC

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The International Federation for Human Rights (FIDH) and its partner organisation in Ukraine, the Kharkiv Human Rights Protection Group (KHPG), submitted yesterday to the Office of the Prosecutor of the International Criminal Court (ICC) an Article 15 Communication on war crimes and crimes against humanity committed in prisons seized and controlled by anti-government forces in eastern Ukraine. To accompany the Communication, our organisations are publishing this Q&A addressing the reasons behind this submission, its chief findings, and our main requests.

1. Why did FIDH and KHPG meet with the ICC Office of the Prosecutor?

You may recall that the ICC Prosecutor opened a preliminary examination into the situation in Ukraine on 25 April 2014, extending it on 29 September 2015 to include alleged crimes occurring after 20 February 2014 in Crimea and eastern Ukraine. [1] In this framework, and to feed into the ongoing preliminary examination, FIDH and KHPG submitted and presented Wednesday, 23 September 2020 to the ICC Office of the Prosecutor an Article 15 Communication focused on international crimes committed against detainees who had been serving their sentences, or were remanded into custody, in prisons located in Luhansk and Donetsk provinces at the time of the outbreak of the armed conflict in 2014. An estimated 16,200 prisoners in some 36 prisons unwittingly found themselves in the epicentre of a conflict zone, and by December 2014, had become de facto prisoners of anti-government forces and the self-proclaimed authorities of the Luhansk and Donetsk “Peoples’ Republics” (known as LPR and DPR). The communication also contains evidence of international crimes against prisoners who were detained and/or “convicted” by anti-government forces following the outbreak of the armed conflict.

2. What exactly is an Article 15 Communication to the ICC?

At the preliminary examination stage, the ICC Office of the Prosecutor (OTP) lacks the legal powers and resources to conduct full investigations. Instead, the OTP relies on information provided by States, organisations, and individuals, pursuant to Article 15(2) of the ICC Statute, to determine whether there is a reasonable basis to proceed with a full investigation. These pieces of information, that can take various forms, are commonly called “Communications.” Article 15 communications are a fundamental tool for civil society to participate in the matters of the Court and are crucial to launching investigations and prosecutions at the ICC.

The ICC Office of the Prosecutor has received, to date, more than 12,000 such Communications on various situations.

3. Why does the ICC have jurisdiction to consider the crimes denounced by the FIDH-KHPG communication?

Ukraine has not ratified the ICC Statute and is therefore not an ICC State Party. However, on 17 April 2014, [2] Ukrainian authorities lodged a declaration with the registrar of the International Criminal Court, recognising the jurisdiction of the ICC for the purposes of identifying, prosecuting, and judging the authors and accomplices of acts committed in Ukraine between 21 November 2013 and 22 February 2014. [3] On 8 September 2015, the Foreign Minister of Ukraine submitted a second declaration to the ICC Registrar, accepting “the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the perpetrators and accomplices of acts committed in the territory of Ukraine since 20 February 2014”. [4]

These two declarations grant the ICC jurisdiction over crimes listed in Article 5 of the ICC Statute committed by nationals of any state on the territory of Ukraine from 21 November 2013 onwards. [5]

The crimes described in the FIDH-KHPG Article 15 Communication amount to war crimes and/or crimes against humanity as described in Articles 7 and 8 of the ICC Statute, and were committed in Ukraine starting February 2014.

4. What specific crimes have been committed in prisons in eastern Ukraine?

Based on the evidence documented by FIDH and KHPG, there is a reasonable basis to believe that the following crimes were committed between April 2014 and August 2020 against detainees in prisons controlled by anti-government forces in eastern Ukraine:

Unlawful detention and punishment without due process: following the outbreak of hostilities, some 16,200 prisoners across 36 prisons fell under the control of anti-government forces. The vast majority of the prisoners were abandoned to their fate, as the Ukrainian government took no or no adequate steps to evacuate them out of the conflict zone, and they were effectively transferred into the custody of anti-government forces. These prisoners included people convicted and sentenced by Ukrainian courts, as well as those awaiting trial in pre-trial detention. For many people in the latter category, criminal case files setting out allegations against them were destroyed, taken to government-controlled territory, or lost. Gradually, the newly minted de facto courts and prosecuting authorities ‘re-created’ their case-files and ‘tried’ them in proceedings that lacked independence, impartiality and fairness. Others had their Ukrainian sentences ‘revised’ by the new authorities. None benefited from Ukrainian parole and early release laws that they were entitled to.

Cruel, inhuman and degrading treatment: Once the prisons were seized by anti-government forces, prisoners experienced a marked deterioration in their detention conditions. Their initial encounters with the new authorities were usually marked by indiscriminate violence, abuse, intimidation and debasement. Those perceived to be pro-government (based on place of origin, language, tattoos, statements or clothes) were subjected to the harshest forms of abuse and violence. For some – depending on the group or warlord in charge – systematic violence persisted for months, or even years. The prisons began to run out of food, leading to starvation and extortion by the new prison authorities. The armed conflict raging outside the prison walls regularly knocked out heating, electricity, and water supplies, damaged prison buildings and killed or injured prisoners. The prison authorities did nothing to safeguard prisoners’ lives – most of them would run to shelter while the prisoners remained locked in their cells. To make matters worse, anti-government forces used the prisons to launch attacks on Ukrainian government positions, attracting retaliatory fire that led to deaths, injury and trauma. Starving, unwashed, cold and in constant fear, prisoners languished in partially destroyed cells. Breaks in artillery fire were filled with violence at the hands of soldiers on break from combat.

5. Why are these victims different from others affected by the conflict?

The group of victims of the alleged crimes described in this FIDH-KHPG Communication are detainees trapped in prisons seized and controlled by anti-government forces in the occupied parts of Donetsk and Luhansk provinces. The 16,200 prisoners held in 36 prisons across the conflict zone are a largely forgotten group.

While these prisoners are largely civilians, they do not fall neatly into the international humanitarian law categories of civilian internees or prisoners of war. An overwhelming number of them occupy a unique status, having first been imprisoned by de jure Ukrainian authorities and subsequently abandoned to their fate in the custody of anti-government forces. Those who were convicted by Ukrainian courts have been subjected to a new set of rules on parole, early release, and amnesty. Those who were remanded into custody but not yet convicted found themselves tried and judged by a new set of pseudo-judicial organs working within a completely new set of rules.

This legal grey area rendered the prisoners vulnerable to arbitrary detention, ill treatment and extra-judicial punishment.

6. Where were the crimes committed?

Prior to the outbreak of the armed conflict in eastern Ukraine, Donetsk and Luhansk provinces had the highest concentration of prisons of any region of Ukraine, and the highest number of persons in detention. All prisons were located in cities, towns and other urbanised areas. At the start of 2014, there were:
• In Luhansk Region – 16 prisons, [6] including two pre-trial detention centres, two correctional centres, one penitentiary institution, three low security correctional facilities, seven medium security correctional facilities, one maximum security correctional facilities, and one medical penitentiary institution.
• In Donetsk Region – 20 prisons, [7] including three pre-trial detention centres, two correctional centres, two penitentiary institutions, three low security correctional facilities, 10 medium security correctional facilities, one maximum security correctional facility, and one medical penitentiary institution.

Crimes described in the FIDH-KHPG Communication were committed in these prisons, having fallen under the control of the anti-government forces in 2014 and integrated into LPR/DPR de facto structures.

7. Who are the main alleged perpetrators?

The outbreak of conflict in eastern Ukraine has led to the breakdown of social order, morality and the rule of law in separatist-controlled territories, the so-called Donetsk and Luhansk Peoples’ Republics (DPR and LPR, respectively). In 2014, a plethora of separatist paramilitary groups established their authority over urban and rural areas, dismantled established legal and administrative structures, and established a Soviet-inspired warlord autocracy.

The 36 prisons described in the FIDH-KHPG Communication each fell under the authority and control of the group that seized power in the relevant geographic area. Until mid-2015, DPR and LPR authorities had varying degrees of control over these groups, occasionally leading to internal conflict. By mid-2015, all occupied territories were brought under the banners of LPR and DPR authorities, with the Russian government exercising overall control and providing military, logistic, and financial support throughout. For all intents and purposes, detainees at these facilities were detained at the pleasure and mercy of the paramilitary group in control and the warlord in charge of the territory on which they stood. The alleged perpetrators of the crimes described in the FIDH-KHPG Communication are members and leaders of the paramilitary group or authority exercising control over the prisons at the relevant time.

8. How do the documented crimes qualify as war crimes and crimes against humanity?

For a criminal conduct to constitute a war crime it must take place in the context of and be associated with an armed conflict. [8] The filing parties submit that an armed conflict has existed on the territory of Ukraine from the start of the Russian invasion of the Crimean Peninsula on or around 23 February 2014, and continued to exist at the time of the submission of this communication between Russian-backed (and controlled) anti-government forces and Ukrainian armed forces and paramilitary battalions.

For a criminal act to be qualified as a crime against humanity, the act must be perpetrated as part of a widespread or systematic attack against a civilian population pursuant to a State or organisational policy to commit such an attack. [9] Since the breakout of hostilities in 2014, documentation by international organisations and civil society has revealed a picture of systematic targeting of civilians, through violence, arbitrary detention, persecution and the denial of basic fundamental rights.

Taking these contextual elements into account, there is a reasonable basis to believe that the documented arbitrary detention, punishment and systematic denial of due process to prisoners being held on LPR/DPR-controlled territory amount to:
• the war crimes of unlawful confinement, cruel treatment, denial of fair and regular trial and sentencing without due process;
• the crimes against humanity of imprisonment or other severe deprivation of physical liberty.

The physical and psychological violence, humiliation, inadequate conditions of detention, lack of sufficient food and water, no or limited access to medical care and the prison authorities’ failure to protect prisoners from the armed conflict, may amount to:
• the war crimes of cruel or inhuman treatment and outrages upon personal dignity;
• the crime against humanity of other inhuman acts.

Finally, the military tactic of launching attacks from or near prisons used extensively by anti-government forces caused severe suffering, injury and trauma, and may amount to the war crime of cruel or inhuman treatment.

9. Are the documented crimes being genuinely investigated and prosecuted at the national level?

According to the principle of complementarity, ICC prosecutions are impeded in cases that are, or have been, subject to genuine proceedings by other competent authorities. [10] Notwithstanding the fact that some limited national proceedings have taken place with respect to the crimes committed in the context of the armed conflict in eastern Ukraine, FIDH and KHPG understand that although Ukrainian authorities may be willing to investigate and prosecute members of anti-government forces for crimes set forth in this communication, they are unable to do so due to the lack of access to evidence and suspects, and the absence of relevant provisions in the Criminal Code of Ukraine (Article 17(1) of the ICC Statute). Complaints and victim reports filed under the Criminal Code of Ukraine have been transferred to and from various investigative bodies without any genuine investigative action being taken. Victims report that they have not been questioned by relevant investigative authorities in relation to information provided to the police.

LPR and DPR de facto investigative and prosecuting authorities are also unwilling to consider complaints about arbitrary detention and ill-treatment in prisons on the territory under their control. Victims who have filed such complaints have received no replies from such authorities.

Finally, the filing parties are not aware of any complaint filed to Russian authorities in relation to criminal conduct in prisons under LPR/DPR control. Russia has repeatedly denied having any authority or control over LPR/DPR de facto authorities, or having any involvement on LPR/DPR-controlled territory. As such, Russian authorities would not be willing to conduct investigations and prosecutions in relation to crimes set forth in this communication.

10. Are the crimes of sufficient gravity to justify ICC jurisdiction?

The crimes set forth in this communication have affected thousands of vulnerable prisoners, leading to serious injury and long lasting trauma. FIDH and KHPG submit that the alleged conduct is sufficiently grave to be admissible under Article 17(1)(d) of the ICC Statute. Under this article, a case may be determined to be inadmissible when it is “not of sufficient gravity to justify further action by the Court.” An assessment of gravity is based on the scale, nature, and manner of commission of crimes, and their impact. [11]

In the filing parties’ estimation, thousands of individuals are being held arbitrarily in LPR/DPR-controlled prisons, with no recourse to independent, impartial and fair judicial organs. Thousands of prisoners have been subjected to some degree of cruel or inhuman treatment. Violence, physical, verbal and psychological abuse, chronic food shortages, inadequate conditions of detention, lack of medical care, and unnecessary exposure to the dangers of armed conflict have been documented to varying degrees across all LPR/DPR-controlled prisons. Most notably, the use of violence, starvation and exposure to artillery fire was rife in nearly all documented prisons from mid-2014 to mid-2015. In some cases, the violence and abuse deliberately targeted certain groups of prisoners who were taken for actual or perceived opponents and critics of anti-government forces. In other cases, exposure to cruel and inhuman conditions of detention was done indiscriminately – either because the authorities did not consider prisoners to be a priority, because they sought to actively punish prisoners, or through pure mismanagement and recklessness.

For all of the above reasons, the scale, nature, and impact of the documented conduct on prisoners is of the utmost gravity.

11. What is the next step for the ICC Prosecutor following this submission?

The Article 15 Communication aims to support the ongoing preliminary examination and to persuade the Prosecutor to open a full investigation into ICC Statute crimes committed in Ukraine, including those against detainees in prisons seized and controlled by anti-government forces. During the preliminary examination stage, the Office of the Prosecutor evaluates if all the criteria (jurisdiction, admissibility and interest of justice) have been met. Then, for the ICC to open an official investigation it must be satisfied that there is a reasonable basis to believe that war crimes and/or crimes against humanity may have been committed, and that this conduct is not being prosecuted by national authorities, and is of sufficient gravity to merit an investigation at the ICC. The Prosecutor has an obligation to examine the information received, and the preliminary examination can lead to the opening of an official investigation, if the Prosecutor is authorised to do so by the ICC Pre-Trial Chamber.

12. Who are the filing parties of this Article 15 Communication?

The Kharkiv Human Rights Protection Group (KHPG) is a Ukrainian non-governmental non-profit human rights organisation, founded in 1989 as part of Kharkiv Memorial Society. KHPG protects human rights as part of specific cases, processing up to 3,000 written applications every year, keeping the Ukrainian state and public informed about human rights and analysing the observance of human rights and fundamental freedoms in Ukraine. KHPG strives to improve the situation in Ukraine on issues including the right to life, torture and ill-treatment, arbitrary detentions, freedom of speech and information, the right to privacy, and the rights of vulnerable groups such as convicted prisoners, people living with HIV/AIDS (PLWH), drug addicts, asylum seekers, and others.

The International Federation for Human Rights (FIDH) is an international and independent human rights NGO established in 1922, uniting today 192 member organisations in 117 countries around the world. FIDH’s mandate is to take action for the protection of victims of human rights violations, for the prevention of these violations and to bring perpetrators to justice. In order to do so, FIDH works with its member and partner organisations to document human rights violations, conduct advocacy work as well as strategic litigation in support of victims’ rights to truth, justice and reparation. One of FIDH’s priorities is to fight impunity and protect populations from the most serious crimes.

FIDH hired Alexandre Prezanti, partner of Global Diligence LLP, as a consultant to assist KHPG and FIDH with the drafting of the communication.

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