Ukraine: Mr Poroshenko, the ICC must investigate the crimes in the Donbass and Crimea

Op-ed written by Tolekan Ismailova, FIDH vice-President

An entire year has passed. Images of civil war in the streets of Kiev are still fresh on our minds. We remember the barricades erected in the now infamous Independence Square, where protesters braved violent repression in order to oppose the diplomatic and economic policies of those in power, and to demand their resignation. The use of live ammunition, alongside arbitrary arrests, torture and ill-treatment, led to more than 100 deaths. While the media largely emphasized the abuses committed by Ukrainian security forces, they also noted the presence of violent radical elements in the ranks of the opposition to Yanukovych. However, the presidential and legislative elections in May and October 2014 clearly demonstrated that these radical factions, some of whom espouse a far-right ideology at odds with the pro-democratic aspirations of the majority of Independence Square protesters, represent only a small minority.

On February 22, President Yanukovych fled, leaving behind an extremely divided country already showing the initial signs of a more serious confrontation in the South and East. Ukraine quickly spiraled into the most difficult period in its history since independence. Ukrainians began fighting their Ukrainian brothers and sisters, amidst rising international tensions that recalled the darkest moments of the Cold War.

Absence of a thorough investigation

The lack of full and effective judicial proceedings to clearly determine responsibility for the criminal acts committed in Independence Square and other cities, such as the deadly fire in Odessa, has contributed to the outbreak of new violence and the escalation of the conflict in Crimea and in the East of the country, where belligerents continue to commit serious crimes. This once again indicates that impunity provides fertile ground for violence and war. The death toll has risen from hundreds to over 5,300. No one, not even those who sat at the negotiating table, believes in the sustainability of the current shaky and fragile cease-fire. Impunity is a blank check for the perpetrators of violations of international humanitarian and human rights law, who carry out indiscriminate bombings, kidnappings and torture, regardless of their faction.

We have sent several delegations to Kiev over the past year. These missions have allowed us to determine that national courts do not have the will nor the capacity to prosecute perpetrators of the most serious crimes currently being carried out in the country. As such, we have asked authorities to further reform the judiciary, to ratify the Rome Statute and to recognize the jurisdiction of the International Criminal Court (ICC), which is the only means available to investigate international crimes committed in Ukraine.

The disastrous consequences of an amnesty

Though the new Ukrainian government brought the situation before the International Criminal Court in The Hague, it nevertheless granted the Court only a very limited temporal mandate. The Office of the Prosecutor opened a preliminary examination of the situation, but only to analyze events occurring between November 21, 2013 and February 22, 2014, and exclusively concerning the events related to Independence Square. As the mandate currently stands, the ICC’s examination cannot include crimes committed in Crimea or in the Donbass, which may also constitute war crimes or crimes against humanity.

Therefore we urgently call on both parties to the conflict to respect the cease-fire agreement in order to guarantee the protection of civilians. However, it is particularly crucial that the ICC be allowed to review and establish responsibility for these ongoing crimes, no matter which party may be at fault—including Russia—whose direct involvement in the conflict cannot be denied. Peace talks must not overshadow the need to fight effectively against impunity and to ensure the right of victims to seek justice. The proposed amnesty would have disastrous consequences for the future of the country, adding a sense of injustice to pre-existing resentment.

The Ukrainian government must make its position clear by extending the jurisdiction of the ICC from February 22, 2014 onwards. On February 4, 2015, the Ukrainian parliament adopted a resolution to that effect. Mr Poroshenko, we ask you to put these issues on the agenda of future meetings of your government to give sustainable peace a chance.

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