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International Criminal Court: Russia’s Invasion Of Ukraine Is a ‘Crime,’ Not A Civil War
On November 14, the International Criminal Court (ICC) issued its preliminary findings that “there exists a sensible or reasonable justification for a belief that a crime [my italics] falling within the jurisdiction of the Court ‘has been or is being committed’” within the Crimean and Donbas territories of Ukraine. On release of the ICC report, Russia announced that it would withdraw from the organization because it “failed to meet the expectations to become a truly independent, authoritative international tribunal.” The ICC report intensifies Russia’s isolation following the Joint Investigative Team’s (JIT) blaming Russia for shooting down MH17.
Russia thus finds itself in the questionable company of Burundi, Gabon, Iraq, Afghanistan, Columbia, and Niger as suspects in creating international armed conflicts. The ICC report demolishes Putin’s narrative of the Ukrainian conflict, which paints Russia as an innocent bystander. Following the ICC report and Russia’s angry withdrawal from the international tribunal, there should be no further reference to “civil war,” “separatists,” or “insurgents.” Instead the conflict that has claimed 9,578 lives is an “international armed conflict between Russia and Ukraine.” Another consequence is that Russia, as a party to the conflict, should no longer have a “peacemaker” seat in negotiations in Minsk.
The ICC report is particularly embarrassing for the Kremlin as it tries to peddle its parallel-reality version of the Ukraine conflict to the incoming Donald Trump administration.
ICC: Crimea is occupied by Russia, not a part of Russia
The ICC report summarizes events in Crimea as follows:
In the early hours of February 27, 2014, armed and uniformed individuals wearing no identifying insignia (“green men”) seized control of the Crimean parliament and admitted pro-Russian deputies, who appointed a new prime minister (a local gangster) and called for a referendum on the status of Crimea. (See You tube of Russian special forces’ takeover of parliament.) Two days after a referendum conducted under the supervision of Russian Kalashnikovs, Crimea was admitted into the Russian Federation. Residents of Crimea automatically became Russian citizens. Crimea’s annexation by Russia was declared invalid by the Ukrainian provisional government and by a majority of states of the UN General Assembly. After an initial denial, Putin later admitted that his military personnel had been involved in these actions (and that he had planned the annexation well before the above events).
ICC finding: Russia is an illegal occupier of Crimea
The ICC report concludes: “The information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict [my italics] between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation [my italics]. A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required.”
Donbas is an international conflict between Russian and Ukraine, not a civil war
The ICC summarizes events in the Donbas (East Ukraine) as follows:
During April and May 2014 antigovernment demonstrators seized government buildings in eastern Ukraine and thwarted government efforts to regain control. The situation deteriorated rapidly into mass violence, and the Ukrainian government deployed its armed forces against the “militias” of the self-proclaimed People’s Republics of Donetsk and Luhansk. The intensity of hostilities increased in April and July 2014 with artillery shelling, shooting down Ukrainian helicopters and transport planes, a fierce battle for Donetsk airport, and the downing of MH17 by a missile launched by antigovernment forces on July 17, 2014. Two periods of particularly intense battles in late August 2014 and from January to February 2015 have been attributed to alleged influxes of troops, vehicles, and weaponry from the Russian Federation.
ICC finding: East Ukraine is an international armed conflict between Russia and Ukraine
ICC finding: Information points to a direct military engagement between Russian and Ukraine that supports the existence of an international armed conflict [my italics] in eastern Ukraine. The ICC must also assess whether Russian authorities have provided support to the armed groups in the form of equipment, financing, and personnel, and also whether they have generally directed or helped in planning actions [my italics] of the armed groups in a manner that indicates they exercised genuine control over them.
Consequences for Russia in the time of Trump
Russia’s hasty withdrawal from the ICC is explained by the fact that Russia’s carefully constructed Ukrainian narrative would not survive the ICC’s promised “detailed factual and legal analysis” that was to follow its preliminary findings.
The Russia narrative depicts Russia as a “bystander” to the events in Ukraine, looking askance as neo-Nazi extremists take over Kiev and threaten frightened Crimeans and East Ukrainians with genocide. The Russian narrative praises the pro-Russian people of Crimea for organizing their own annexation and the endangered East Ukrainians as the people’s republics organized armed volunteers to fight off the extremist rapists and crucifiers sent by the illegal Kiev junta. Russia, of course, could not prevent patriotic Russian fighters from volunteering for duty on the Ukrainian field of battle, some during their vacation leaves. Russian soldiers killed or captured in Ukraine had, after all, signed papers separating themselves from the Russian army. As an innocent bystander, Russia has earned a place as a peacemaker in the Minsk negotiations, but claims it has limited influence over the separatist forces. The Russian narrative claims that innocent bystander Russia wants a prosperous and peaceful Ukraine on its borders but with the peoples’ republics having a veto over Ukraine’s foreign policy. The narrative does not state that such an arrangement would spell the end of an independent Ukraine.
That narrative has not withstood the ICC finding that Russia is an illegal occupier of Crimea and that the war in east Ukraine is an international conflict between Ukraine and Russia.
The chinks in the Russian “bystander” narrative are accumulating. A report by the Russian Human Rights Commission reveals that a small percentage of eligible Crimean voters supported annexation. Putin has admitted that he ordered that Crimea “be returned to Russia” well before the annexation. The international investigation of MH17 pins the blame on a missile crew firing from pro-Russian territory and hastily returning to Russia afterward. Although Russia claims there are no Russian soldiers in Ukraine, medals are still being awarded for valor there. Hacked e-mails reveal that Russia exercises command and control over forces in Ukraine. Putin has, at long last, admitted that Russian troops are fighting in Ukraine. In a press conference, Putin declared, “We never said there were not people there who carried out certain tasks including in the military sphere.” (Could those “certain tasks” include Russian crews firing surface to air missiles?)
As Donald Trump picks his foreign policy team, he should worry about those who believe all or part of the Putin Ukraine narrative, which has just been shredded by the International Criminal Court report. Believe it or not, the Putin narrative that the West is to blame and that Russia is a bystander to the Ukraine conflict has its supporters throughout Europe and among US diplomats and scholars. Let us hope that none end up advising the President-elect.
The New York Times misreads the damage to Russia by the ICC findings. Its writers dismiss the ICC finding as a minor irritant. After all, Russia signed but never ratified its membership in the ICC and can easily withdraw. Moreover, the ICC has punished primarily minor African despots, not the leadership of a major Eurasian country with a nuclear arsenal. The Times does not understand that the ICC has conducted a professional investigation using international standards that finds cause for a full investigation of international crimes [my italics] committed by Putin and his Kremlin insiders. Putin’s propaganda machine will either go into high gear or hope that the story will pass largely unnoticed.