Webinar: Crimea – Ukraine’s Lawfare vs Russia’s Warfare

Orysia Lutsevych

Okay, ladies and gentlemen, and welcome to Chatham House. I say, “Welcome to Chatham House,” in this virtual space because I think Chatham House is much more than just a house. It’s a big idea, it’s a vision of the world that is based on rules and international law. Prosperous and peaceful to all of us. My name is Orysia Lutsevych and I manage Ukraine Forum at Chatham House, that is part of Russia and Eurasia Programme and today, you know, literally, we are beginning our first series of virtual meetings at Chatham House for our members. Because, of course, with all the turmoil in the world, we’ll have to turn into technology to keep all of us talking about the world and we, today, are discussing Crimea: Ukraine’s Lawfare versus Russia Warfare.

It’s been six years since the annexation of Crimea that has been brutally, with force, taken away from Ukraine and turned into a Russian-Crimean federal district. It’s the peninsula the size of the Wales, and this conflict has impacted almost ten million people, residents of Crimea. But of course, the violations and all the problems that followed, including crimes against Crimean Tatars, against Ukrainians, against the residents of Crimea, with many people missing, with the assault on cultural heritage, and very limited, in many ways, access to international community to Crimea, including no access to OSCE to monitor the situation with human rights.

And with me today to discuss the status of Crimea, Ukraine response, reactions from Russia, Ukraine’s capacity to manage, and to de-occupy Crimea is Wayne Jordash, who is the Managing Partner of Global Rights Compliance, a world-leading expert on international humanitarian law, who has been advising governments in Ukraine, Bangladesh, Libya, Serbia and Vietnam on various complications related and the compliances related to the international humanitarian law. Currently, Wayne leads the group of experts and lawyers around projects in Ukraine related to advising both Ukrainian Government, but also international organisations located in Ukraine and civil society.

And I’m really pleased also to welcome Dr Anton Korynevych who is the Permanent Representative of the President of Ukraine for Crimea. I think it’s the first time that Ukraine has such an Official, a Permanent Representative, since June 2019. Anton is the Head, also, of a working group on reintegration of the temporarily occupied territories of the commission on legal reform under the President of Ukraine. He is a very experienced Lawyer and was working on draft law, implementing international crimes component to the Criminal Code of Ukraine.

Now, I would like to turn to Anton. Anton, could you please update us on the status of the annexation of Crimea? What has been happening on the ground and what is President Zelensky’s strategy for the occupation because he’s the new President of Ukraine, what is his vision for that?

Dr Anton Korynevych

Hello, Orysia. Hi, everybody. It’s a great honour and pleasure to be here today with you, to talk on Ukrainian Crimea to the audience of Chatham House members. So at first, you know, I would like to start with saying that of course it’s very good that we have such an event on the 16th of March, which is the exact date of the so-called ‘referendum’ which, of course, was and is illegal, under both international law and national law of Ukraine, so that it does not bring any legal consequences, and Crimea was, is and of course will be Ukraine. But I think that this is kind of a part of a Russian story. Ukraine’s story is actually resistance to the occupation of Crimea. And I think is something we can start with talking about President Zelensky’s strategy over Crimea, that on the 26th of February of this year, he signed a decree of the President on the Day of Resistance to the Occupation of the Autonomous Republic of Crimea and the city of Sevastopol. For this first time in the six years after the occupation happened in 2014, the President of Ukraine officially acknowledged that every year, now, every year on the 26th of February it will commemorate the Day of the Resistance towards the Occupation.

And on this very day, the President, himself, for the first time in the six years, took part in a big international forum, which was called Age of Crimea and happened in Kyiv. By saying this, I want to stress that for President of Ukraine, Volodymyr Zelensky, Crimean issue is a very important one. And again, by bringing these two examples, you may see that the things are happening for the first time in six years. And while President was present at the forum, he was saying that, actually, return of the control over Crimea should be part of Ukrainian national ideology, a part of Ukrainian national idea. This is something, I think, which illustrates that nobody forgot about Crimea, that the occupation and reintegration of Crimea is a very important task for Ukraine. And the President considers that in this respect, while we, Ukraine, temporarily do not control our territory, I mean Crimea, of course, we should remain and resemble ties with our citizens, who reside on temporary occupied territories.

That means that Ukraine should act in such a way that Crimeans, Ukrainian citizens in Crimea, should understand that Ukraine is their motherland, and that they can address with any issue to the motherland and motherland is ready to provide any services, that motherland would not act discriminatory with regards to Crimeans. That Ukraine will help and assist, to get education, to get medical treatment, to get anything, which is possible for Crimeans. And what is also important, and important for us, is that the President mentioned that transitional justice is the concept which shall be used in order to de-occupy and reintegrate Crimea and Crimeans, Ukrainian citizens residing in Crimea.

Again, for the first time in six years, we hear that transitional justice may be something which can ease and bring the return of the control over Crimea to Ukraine. By saying this, and finishing answering to the question regarding the President’s approach, we know that Crimea is a very important issue for him, and that in order to remember about Crimea, in order to fight, I mean, legally, over the control of Crimea, I’m sure that the President and the governmental team now will make every, and use every, effort in order to fulfil these tasks.

And regarding the current situation in the territory of Crimea, I’m sure that of course the audience is looking at all the resolutions of the international organisations, at all the reports of the non-governmental organisations of the human rights activists. But I would like to stress on two examples, which were just happening in, I think, two weeks and which are very bright illustrations that actually, the Russian Federation occupying authorities continue to violate human rights on the temporary occupied territory of Crimea.

One example is that – I think in the beginning of March it was, that we had a call from Crimea, and this is very important for me to state that though Ukrainian authorities in Crimea work in exile, so we cannot enter the temporarily occupied territory, but we have a close contact with Crimeans. So, we do know what is happening on the ground, on the soil and we do know the situation from, let’s say, first hands. So we had a call, an information, from Ukrainian citizens in Crimea, that in the main cathedral of the Ukrainian Orthodox Church, the Russian occupation authorities stationed the so-called “Crimean self-defence,” in order to look how the Ukrainian Priests do the services. I think this is something appalling, and something which, again, is absolutely against the freedom of religion and freedom of conscious.

And the other example was happening just several days ago on the 11th of March, while in the very morning, the Russian occupation law enforcement agencies and officers started illegal arbitrary searches and illegal arbitrary detentions of Crimean Tatars activists in Bakhchysarai, the activists of the movement, Crimean Solidarity. This is a very bright example to show that the Russian Federation continues to use the mechanism, which they used with Mejlis of Crimean Tatar people. I mean, defining the organisation as an extremist or terrorist one, and then arbitrarily detaining and putting into custody, into jail, the persons whom these Russian occupation authorities deemed ‘linked’ to the operation of the specific organisations.

So, all in all, Crimea is now a really grey zone, where arbitrary detentions, arbitrary arrests, arbitrary searches are used very often. Crimea is a zone where fair trial rights are not secured at all. Crimea is a zone where people are afraid to talk with their neighbours. People are afraid to just talk even with relatives, because they think that some information then may leak to the Russian occupation law-enforcement agencies and Officers.

So, brutal violations of human rights, such as forced conscription to the armed forces of the Russian Federation, which we do believe is one of the most systematic war crimes committed by the Russians. Militarisation of educational process at schools, I mean, that our Ukrainian children in Crimea have military classes and lessons at schools. They teach how to battle and fight the forced citizenship of the Russian Federation and another problem is we do believe that an instrument of hybrid warfare, because by doing – by granting, forced citizenship to Crimeans, in such a manner, Russian Federation tries to get this link to our citizens, and then to do some bad things with them.

Another problematic issue is of course the, I would say, erasure of national and cultural identity of Ukrainians and Crimean Tatars in kindergartens, in schools, with youth, with children. So that the Russian occupying authorities try to produce something like a new Soviet citizen, who will not remember his or her identity, culture, traditions, religion. Of course, the big problem is the transfer of Russians, of Russian citizens, to the occupied territory. This is something appalling, and this is again, something we believe is a systematic war crime and many, many other issues in this human rights violation sphere. Of course, persecution of Crimean Tatars, of pro-Ukrainian activists, and creating such conditions that these people cannot live any more in Crimea and do need to go to the mainland Ukraine.

Also, when we talk about militarisation, is the fact that the Russian Federation, really, creates, I would say, a big aircraft carrier in Crimea, so that they put so many military personnel, so many military vehicles carrying battle ships, for instance, carrying Kalibr missiles, the missiles which can hit up to the territory and the distance of 200 – of 2,000 kilometres. So, this is a real threat to the whole security in the Black and the Azov Sea region to Eastern Europe, to Southern Europe. We know the cases with the problematic access to the Sea of Azov, because the Russians do control, now, the two sides of the Kerch Strait, namely Kerch Peninsula and Taman Peninsula. This problematic and unlawful creation of Kerch Bridge, so-called ‘Kerch Bridge’, which, again, is a threat to the ecology, to the environment situation, in the Sea of Azov and the Black Sea.

So, by saying this as an, I would say an introduction, I want to pay attention of the audience that the Russian Federation did not do anything, in order to make the situation better. So, the situation deteriorates and unfortunately, we do see the signs of this pretty much every day.

Orysia Lutsevych

Yeah, Anton, thank you so much for this update and it’s, of course, a pity that Crimea was becoming a recreational zone, turned into this grey zone and of course, Ukraine is an imperfect democracy. But clearly, the rights and then the political, civic, cultural rights were respected in a much higher level than what Crimea faces today. And I’m sure we’ll come back, in our second part of our conversation, about this – if you could develop a little bit more on this idea of transitional justice and how it is that President Zelensky sees to use this as a tool. But we would like to park this question for now, and I would like to now come to Wayne, to ask him a question about – give us a bit of an update for the audience about what are the main claims that Ukraine has brought against Russia internationally that are related to the occupation of Crimea?

Wayne Jordash QC

Okay, thank you very much, Orysia, and thank you to Chatham House as well, for making this possible. Let me go straight into looking at what Ukraine has done so far, in relation to trying to advance its claims through the law. Certainly, there’s been a significant flurry of claims and cases. Ukraine has certainly kept Russia busy in the various courts and tribunals. At the interstate level, Ukraine has brought proceedings against Russia before the European Court of Human Rights, the International Court of Justice, and two tribunals constituted under Annex 7 of the UN Convention on the Law of the Sea, that’s UNCLOS.

With respect to mixed claims, where the parties are a mix of state and non-state actors, there are approximately 4,500 individual claims currently pending before the European Court of Human Rights. In addition, there are at least five disputes before the WTO dispute settlement system, and at least nine or ten Ukrainian investors from Crimea have initiated investor-state arbitrations against Russia. And finally, of course, with regard to international criminal law and individual responsibility, although Ukraine is not a party to the Rome Statute, following the Euromaidan protests the government lodged a declaration in relation to that situation and subsequently lodged a declaration in relation to Eastern Ukraine and Crimea, so that the ICC has jurisdiction over the territory since 8th of September 2015.

Now, that’s a flurry of claims. But whether that amounts to a coherent strategy is a more complicated question. It’s one thing to file claims, in relation to discrete issues. It’s another to use those claims in a coherent way to advance the larger interstate dispute and to advance Ukraine’s larger claims which, of course, in relation to Crimea is one of sovereignty and in relation to the East is that Russia is effectively in control of the separatists. What is clear is, whether there is a longer strategy, what is clear that many of those claims do implicate the broader interstate dispute.

The European Court will have to consider, for example, whether Russia exercises Article 1 jurisdiction in the region, whether, through its own actions in the East or through separatists, in relation to Crimea, the Court will have to consider, again, Article 1 jurisdiction in the region of Crimea, namely whether Russia exercises the relevant control. So, to that extent, sovereignty will be at least touched upon, although it’s doubtful whether the European Court will need to rule, essentially, on sovereignty, but rather will look at the level of control that Russia exercises in Crimea, which will not in effect be one – will not be particularly contentious.

In relation to the ICJ, obviously Ukraine has made two complaints. One under the Convention for the Elimination of All Racial Discrimination. That particularly looks at conduct within Crimea. But, because the majority of the provisions in that convention are not territorially limited, the broader interstate dispute will not particularly be looked at. Certainly not fully, and in a way that, perhaps, the European Court will be required to look at those questions. In relation to the UNCLOS claims, this is where, perhaps, Ukraine will have to grapple, as will Russia, with the sovereignty issue. This is because the 2016 UNCLOS claims that Ukraine has made involve claims that Russia has violated Ukraine’s rights as the coastal state under UNCLOS in the Black Sea, Sea of Azov and Kerch Strait.

These are significant claims, relating to such things as usurpation of fisheries jurisdiction, issues of navigation and so on, which cannot be determined without a determination of sovereignty. So likewise, with regard to individual claims brought by Ukrainian investors against Russia under the 1998 Bilateral Investment Treaty, BIT, between the two states, these cases involve claims by Ukrainian investors of violations of the BIT by Russia in Crimea. Russia has, as we know, refused to engage with these claims, on the basis that it does not recognise the jurisdiction of the tribunals. But nonetheless, despite the fact that these claims are filed by individual investors against Russia as opposed to claims by Ukraine, these investor-state arbitrations do implicate the broader interstate dispute over Ukraine.

First, Ukraine has wisely and successfully applied to make written submissions as a non-disputing party. And second, through the major – though the majority of the BIT claims are brought by wholly private Ukrainian investors, two of the known in cases involve Ukrainian state-owned claimants. Thirdly, and most importantly for these purposes, these claims call for an application of Russia’s obligations under the 1998 BIT to Crimea. And the success of these claims, at least in part, seem to be premised on the tribunal’s recognition that Crimea now forms part of Russia’s territory, for the purpose of the BIT. To that extent, sovereignty is implicated.

Finally, with regard to international criminal law, as I touched upon earlier, the Ukraine’s filing of declarations has given rise to a preliminary examination of the ICC. There’s a clear relationship between this examination and the broader interstate dispute. Most fundamentally, there is a need for the Court to consider, in due course, whether Crimea is a part of Ukrainian territory, at least for the purposes of the Rome Statute.

So, one can see Ukraine has been busy and many of these claims at least promised a glimpse of some consideration, in relation to control over Crimea and perhaps, in some instances, sovereignty. The problem, of course, and this is no fault of Ukraine, is that Ukraine must conduct its lawfare within the constraints of jurisdiction. Obstacles such as compromissory clauses before the International Court of Justice, or other such consent vehicles, dictate the nature of the dispute that can be determined or brought before these specific tribunals. A case in point concerns Ukraine’s claims concerning Russia’s alleged violation of the United Nations Convention on the Law of the Sea, UNCLOS. As noted, Ukraine has instituted interstate proceedings in September 2016 against Russia, under Annex 7 of UNCLOS, alleging various violations by Russia of Ukraine’s rights under the Convention. The problem for Ukraine is that Russia’s main objection to jurisdiction is that the dispute concerns territorial sovereignty over Crimea and is thus not about UNCLOS.

As outlined in several cases, before UNCLOS, or concerning UNCLOS, including in the South Sea – China Sea Arbitration, territorial sovereignty is widely considered to fall outside the jurisdiction provided by UNCLOS. Thus, Ukraine is constrained by these arguments, and has been forced to accept that yes, the case does concern sovereignty, but advances a claim that Russia has no plausible legal claim to sovereignty over Crimea, and therefore there is no legitimate dispute concerning sovereignty arising.

The problem, of course, with that is that they are forced to put those arguments in order to prevent Russia succeeding in ousting the jurisdiction of UNCLOS. However, it is right to note that that argument by Ukraine does not appear terribly convincing. Moreover, and this is where I get a bit more critical, it is not clear that Ukraine handles some of these issues with a clear plan. I heard what Anton said about the political commitment of Zelensky’s Government, and I’m also looking at the political commitment of the previous government. Both governments insist that they are politically committed to Crimea. However, it is not clear that that political commitment translates into coherent legal lawfare. Let’s have a look at, for example, the Kerch Strait incident in 2018.

In the 2016 UNCLOS proceedings, as I’ve detailed, Ukraine argued sovereignty was implicated. In the UNCLOS dispute relating to November 2018, Ukraine argued it wasn’t implicated. In effect, as I think is almost indisputable, Russia’s conduct in seizing the vessels and seizing the Ukrainian service members is part of a pattern of ongoing aggression since 2014, in violation of the charge of the United Nations. While unlawful as a matter of the jus ad bellum, the incident would be a lawful in bello use of force by Russia in accordance with the law of naval warfare. And arguably, therefore, and I think this is the wise argument – not an argument, or not conduct which falls within the jurisdiction of UNCLOS. However, what Ukraine argued, in order to ensure that it did fall within UNCLOS, is effectively that this was not an issue concerning military activity. This was argued because effectively, Russia had filed a declaration, which exempted military activities from compulsory dispute resolution under UNCLOS.

Now, I’m conscious of the time ticking away, but the problem with that argument, of course, is that Russia was right to point out that in the one hand, before the tribunal, Ukraine was arguing that this was not concerning military activity. On the other, from a political perspective, Ukraine had argued, on many different occasions, that in fact it was military activity, and in fact Russia was engaged in a course of conduct of military aggression. And that had been argued in front of the UN Security Council, the UN General Assembly, and so on. A classic example, when you examine those submissions and that legal complaint, of the political not marrying with the legal, not marrying with the lawfare. Now, that was understandable in one sense, in the sense that that was an argument advanced to try to have the sea – sailors released. On the other hand, it didn’t look consistent. It wasn’t consistent and wasn’t consistent with the broader interstate dispute.

Orysia Lutsevych

Thank you, Wayne. Yeah, if you just finish.

Wayne Jordash QC

Okay and so, I – just to – I think if one looks at two essential complaints, the ICJ complaint and the ICC complaint, this is where you mostly see a failure, in my view, or deficiencies, in my view, where the political support has not been sufficient, and the political dynamic has not been sufficiently married with the legal dynamic, and I can go into that detail during the question and answer session.

Orysia Lutsevych

Thank you very much. I think it’s important also to mention for our audience that the sailors, despite being a ruling for them to be released, were not released based on the ruling, but based on the prisoner exchange on the eve of the Normandy Summit that took place in Paris in December, to which, in a way, many people criticised President Zelensky for doing it and not pursuing the kind of lawfare path, to have them released on a legal basis.

Wayne Jordash QC

Well, this is part of my point, in a way, that they – Ukraine goes to the tribunal, abandons its arguments that this is about military activity, abandons its argument that this about military aggression in violation of the UN Charter, with no real prospect that whatever UNCLOS, the tribunal, decided, with no real prospect that Russia would release the prisoners. So, Ukraine abandoned its actual political position for a legal submission, which was almost certainly never going to lead to the release of the prisoners.

Orysia Lutsevych

Okay. Thank you for clarifying that and pointing to some of these discrepancies. I mean, many people who watch Ukraine and watch Russia understand that all kinds of capacities, from military to legal to human, you know, Ukraine is in a way in a disadvantaged position, so it needs to pull its act together in a much more, you know, consolidated way to be able to deliver on those political aspirations. But I have a couple of questions from the audience, and something that links, actually, to something that Anton mentioned about the use of transitional justice, as the pathway for the occupation. So, I am looking at the question box here from Kateryna Busol, our Associate – our Bosch Fellow here in Chatham House. She’s asking, “What is Ukraine’s approach to amnesties and lustration to its citizens residing in Crimea, and co-operation with the occupying authorities? Where and well will this approach be formalised?”

Dr Anton Korynevych

Well, thank you for your question, Orysia. Actually, the questions ‘where’ and ‘when,’ of course, are the most interesting ones and I’m not sure that I can give a definite answer when this might happen. But what is done, and what we plan to do, I will now tell, to the audience.

So, as I said, transitional justice issues are very important, when we talk about the occupation of temporarily occupied territories, both for Crimea and Donbass. But of course, as here we talk about Crimea, so we will link these issues to Crimea. In order to give you the insight, the President in August established the commission on legal reform, which works under the President of Ukraine. And for the first time in the six years in this commission on legal reform, we have the working group on temporarily occupied territories, to which, now, I am the Head of. So – and the President, when he gathered the commission on legal reform for the first time, it was, I believe, the 2nd of October 2019. He sounded one of the tasks for our working group on reintegration and it was to draft the national model of transitional justice. So, this is a very big issue and a very big task, under which we now work.

And the second insight is that our state body, the mission of the President in the Autonomous Republic of Crimea, has the full powers, has a functional duty, to draft the national transitional justice model. It’s the first time, again, when the state body in Ukraine got the powers under the decree of the President to work on the transitional justice model for Ukraine. So, saying this, we – by saying, “we,” I mean both our mission of the President in Crimea and the working group on the reintegration of temporarily occupied territories, together with international experts and national NGOs,– drafted the first variant of the transitional justice model for Ukraine. It was analysed by our colleagues in different state organs, namely in the Office of the President. We got the feedback, and we will work on the feedback, and I hope that in the nearest months, I would say, we can have a decree of the President on the national transitional justice model for Ukraine.

So, this transitional justice model is a rather framework one. So, it doesn’t have a specific catalogue, let’s say, of who will be brought to responsibility and who will not. But what it contains is for sure the statement that the people who committed war crimes, or crimes against humanity, or other gross human rights violations, cannot be brought to amnesty and cannot be pardoned. So, they should be brought to criminal responsibility. And another issue is political responsibility for people who worked at the top positions of the occupying authorities, who led the state bodies of the occupying authorities in Crimea. And another issue is that the people who worked as, I don’t know, Teachers, Nurses, Doctors, if they didn’t commit any human rights abuses, if they didn’t work strategically on the positions in the organs of the occupying power, shall not be brought to responsibility.

Our – today’s approach is as follows. So, if we can secure and have the national transitional justice model for Ukraine adopted in the form of decree of the President, then we can have an action plan, in order to implement this national transitional justice model for Ukraine to be prepared. And this action plan will consist of concrete and direct draft laws, which will be adopted in order to implement the transitional justice model. And in this package, in this action plan, I’m sure that we will have a draft law, which will answer directly the questions, regarding all the issues over responsibility.

Orysia Lutsevych

Okay, thank you very much, Anton. I think also, from what you have said about the official approach to amnesty, it’s quite similar with the public opinion too, if you look at compromises, if you want, which Ukraine is ready – or Ukrainian citizens are ready to accept, with regards to Donbass and Crimea. Most of the people agree that citizens who are just doing, you know, basic civil servants and had no choice, should not be lustrated and should receive an amnesty. So – and I’m sure you will be discussing those issues with wider public.

So here, I guess, also I would like to bring in Wayne with the question of a very important perspective that you may have, living and working not only in Ukraine, but you perhaps could compare Ukraine to other countries. You know, Ukraine is known to have a big rule of law, across the board, and of course to be able to deliver effective legal strategy internationally, Ukraine has to, you know, build its capacity. How do you see Ukraine moving on this past to becoming, you know, to having stronger legal system in Ukraine? To having – attracting right people, professional lawyers, to be able to work on those complicated cases, and creating the right envi – legal basis for this, like the Rome Statute ratification and other things?

Wayne Jordash QC

I would say that my – what I see as a rather mixed – I have mixed feelings, let’s put it like this. On the one hand, for example, Ukraine has advanced a claim at the International Court of Justice, in relation to the Convention on the Suppression of Financing of Terrorism and, you know, this is an important claim for Ukraine and it’s important for – in a number of ways. One, that it effectively raises the question of whether Russia has been supporting terrorism. And secondly, it raises the question of whether the acts of violence within the East of Ukraine are acts of terrorism or violation of international humanitarian law, or both.

Now, I raise this, and I know it’s not Crimea, obviously, but I raise this because I’m really concerned about the way in which that case has been advanced. It was a perfect opportunity, in that case, for Ukraine to map the conflict in the East. Because the essential question is, were – are the acts of violence against civilians, terrorism or international humanitarian law violations and is Russia responsible for them? So, it was an opportunity, it was a fabulous opportunity to map the conflict, to map the violations, to map the relationship of Russia to those acts. And to really create a historical record of Russia’s involvement, either in violations of IHL or violations of the Convention. And yet, what Ukraine did was it listed about five different examples of the violence over the last four years and argued that they amounted to violations of the Convention.

As a result of arguing in such a perfunctory or cursory way, Ukraine wasn’t even able to obtain provisional measures, in relation to the violations of that Convention. That’s – that was celebrated in Ukraine as a win, or overall a win, but in fact it was a great loss and I think, you know, that says something about – what’s necessary at that stage is effectively to demonstrate, on a very low threshold, that the acts fall within, or may fall within, the Convention. And as a consequence of the way that case was pleaded, Ukraine failed, and I have seen the memorial since then, and it isn’t much better. And so, I highlight that, because I think there is something, which is preventing the right legal advice, the right Lawyers, to be part of that case and as a consequence, I think Ukraine’s really losing quite a lot.

Now, in relation to…

Orysia Lutsevych

Wayne, I’m sorry, but I think it would be interesting now to bring Anton. Perhaps he could explain some of it, from being a part of the team, from what I understand, and perhaps, Anton, you have some insights to why the situation is the way Wayne describes, or maybe don’t agree with his analysis.

Dr Anton Korynevych

Well, thank you. Well, I – first of all, I want to mention that I wasn’t part of the team who prepared memorials for the ICJ or United Nations Tribunal for the Law of the Sea. So, I cannot say with 100% surety, but I might agree that some issues might have been arised. And that is why I do believe that the issue of Ukraine’s lawfare, when we talk against Russian Federation, when we talk about the – all the Ukraine’s claims to international fora, to international courts, it should be co-ordinated, so there shall be some task force, you know, who will co-ordinate these issues and who will push all these issues forward.

I do believe that there were talks that Ministry of Justice can have a department, which can work in this issue, which can do this job, and I think that actually, this is a way what it can move, giving Ministry of Justice such full powers. And saying about the ICJ, well, I think that the fact that the jurisdiction is acknowledged under both conventions, is a rather good result. Because I think everybody understood that under the Convention on Elimination of All Forms of Racial Discrimination, Ukraine has a bit more chances. So, it is a rather good thing, as of now, that two conventions are working in the ICJ.

Wayne Jordash QC

Can I just come back on…

Orysia Lutsevych

Yes, go ahead, yes.

Wayne Jordash QC

…that? Yeah, I mean, the – I think this – I agree with Anton completely that I think that one of the – to my mind, there’s two fundamental problems at the heart of Ukraine’s lawfare. One is a lack of co-ordination, and I think what Anton said is absolutely right. There is a need, an urgent need, for co-ordination. I’ve worked in – with the Military Prosecutor, the Crimean Prosecutor, the State Security, and the co-ordination has been absolutely terrible. I’ll be frank about that. Multi – you know, overlapping jurisdictions, you know, and let me say this, very talented people, working in each of those institutions, but burdened by a lack of clear jurisdiction and a lack of co-ordination. So that’s a first thing.

The second thing is that I think the – as big a problem is the lack of – and this is where I do criticise the political will – the political will does not translate into resources for those who are working on the ground level. You cannot advance a convincing case at the International Court of Justice, under the Convention on the Suppression of Financing of Terrorism, without a good investigative team working to map out the conflict. There is no reason why Ukraine couldn’t have obtained provisional measures under that convention. The threshold is very low. There is no reason why Ukraine couldn’t win that case, if it had mapped out, investigated the conflict, found, you know, multiple, multiple, multiple examples of acts which they – could be argued to constitute terrorism, and there are many. There are many and it’s an un – the law is not clear. So, there is no – there’s no – if Ukraine wants to argue that it never stood a chance under that Convention, I think that’s wrong.

It doesn’t stand much of a chance now, because there hasn’t been the relevant investigation and there hasn’t been the relevant focus on the ground level. And, you know, one of my concerns, not only in the ICJ case, but also at the ICC, is again, you know, Gyunduz Mamedov, for example, was the Prosecutor, the Crimean Prosecutor. Talented, determined, modern in his thinking, hardworking and yet, hampered by a lack of resources. And let’s say Crimea, the amount of crimes that have been committed in Crimea, if that was at an international level, you would have 100, at least, Prosecutors working on that case. You would have 50 Investigators working…

Orysia Lutsevych

And how many were working in Ukraine?

Wayne Jordash QC

Well, in – for the Crimean Prosecutor’s Office, he had 45 staff. 25 of them were Prosecutors and of those 25 dealing with investigating and prosecuting war crimes, all of them had a heavy caseload dealing with other types of crimes. So, there is not a country on this planet, whether you’re the most developed, or wealthy, country, which can investigate and prosecute this level of crime, in Crimea or the East, with those types of resources. It is impossible, and on top of that, it’s – you know, investigating, when you don’t have access to the territory, creates, of course, huge, huge, huge obstacles. So, to ask Gyunduz Mamedov to investigate in Crimea and prosecute Crimea, with those types of resources, was asking him to do an impossible job.

Orysia Lutsevych

Well, thank you so much, Wayne. I would like to now come back also, to a question about access to Crimea. And in a way, at least with regards to Donbass there is Special Monitoring Mission of OSCE, and there’s some information about the situation on the ground. Anton, what kind of access international community has to Crimea? How do we gather information? And maybe also link to that, because we have another ten minutes, there’s a question from my colleague Mathieu Boulègue, who is a Russia Research Fellow here, on the programme, he’s asking, “What are the lessons learned, you know, from Donbass for Crimea, in terms of preserving linkages with the population, or for transitional justice? Do you view two of those cases as one occupied territory and thus, it will have a similar approach, or not?”

Dr Anton Korynevych

Well, thank you. Regarding the first question of the access, this is a very problematic one. Nobody has access to Crimea, except for Russians, and, I mean, ordinary citizens who just go there to see their relatives or who live there. What do I mean? Neither official Ukrainian state bodies, like ours, nor international intergovernmental organisations who do human rights, nor human rights NGOs, international ones, can access Crimea now. So, this is a very problematic issue, especially, of course, when we talk about human rights violations because we had some missions like the mission of Studman, of the Council of Europe. But it’s something sporadic.

As of now, no international human rights monitoring mechanism can enter Crimea. Why? Because, of course, all the international established human rights mechanisms can enter Crimea only under Ukrainian legislation because Crimea is Ukraine. In particular, through the Ukrainian checkpoints Chongar, Kalanchak and Chaplynka. Russian Federation is against such an idea. Russia considers that the human rights NGOs and international human rights organisations shall enter Crimea through Moscow Airport and then fly to Simferopol Airport. This is something, of course, we cannot agree on and internationals also don’t agree on. So that is why we do believe that the human rights mechanisms shall enter Crimea. But of course, under international law and of course, under the Ukrainian legislation.

So, how do we get information? Is from people from the ground, from the soil, which means that we ask them, they tell us what is happening there, and otherwise getting information from the people there. And of course, we do have close co-operation with human rights NGOs, who have a lot of people who co-operate with them, on the ground and who give us the information. And of course, we work closely with the Ukrainian Crimean law enforcement agencies, so we do get the information from Crimea. And regarding the second question, of course we do believe that the birth of the problem is one: aggression against Ukraine by the Russian Federation. So, this is international armed conflict, which resulted in Crimea in temporary occupation and actually, in hostilities in Donbass.

But regarding the transitional justice issues, I do believe that the strategies and concepts shall be – shall a bit differ. Understanding the particular issues and understanding the particular questions, which arise both in Crimea, in Donbass. Regarding the lessons learned, I think that Crimea might be the case where Ukraine can show its, let’s say, links to the citizens who reside in the temporary occupied territory. And I do believe that some issues like the crossing of the checkpoints, of the temporary administrative line, and other issues can be, let’s say, the same. In both Crimea and both Donbass issues [pause].

Wayne Jordash QC

I missed that. Anton?

Dr Anton Korynevych

Yes, Wayne?

Wayne Jordash QC

Could you just repeat the last sentence? I missed that.

Dr Anton Korynevych

Yeah. Of course, Wayne, and I mean that there are a lot of issues, which are in common in Donbass and Crimea. Let’s say like the contact line, the temporary administrative borderline, and the issue of crossing of people through this temporary administrative line. The issue of getting services from the state, administrative services. So, a lot of things are the same, I would say.

Wayne Jordash QC

Right, and can I just ask a question, just for my interest, but also for the listeners? Are there plans to – you noted that part of the policy is going to ensure that those who have committed war crimes and core international crimes cannot benefit from amnesties. Are there any plans afoot to increase or develop the resources of the Crimean Prosecutor’s Office? Is there a recognition that the Office, whilst doing its very best, is facing a sort of mountain of evidence, which is very difficult to deal with, with the resources that it has?

Dr Anton Korynevych

Well, yeah, this was an interesting question. I do personally and professionally consider that Crimean Prosecutor’s Office are great guys, who are doing great job, and many thanks to all the experts who – including you, of course, in your company, who worked in training them over these specialties and special issues of international crimes and the issues of International Criminal Court. So, I do believe that Crimean Prosecutor’s Office shall be the strong one. And I do believe that its capacity – and actually, I do believe that not only Crimean Prosecutor’s Office but, let’s say, all the Crimean state bodies, Ukrainian Crimean state bodies, shall be a strong – shall be strong ones with strong capacity, because Crimean issues are the issues – shall be the issues of top priority for our country. And so that is why I do believe that Crimean Special Security Service of Ukraine, Crimean Prosecutor’s Office, National Police of Crimea, our state body also, shall be strong ones. And I also look forwards, rather optimistically, to the development and work of the new Department of International Crimes, or crimes committed during armed conflict, of the Office of the Prosecutor General, which is now headed by the mentioned by you General Gyunduz Mamedov. And I think that by creating this department, the Office of the Prosecutor General showed that they are ready to work seriously and intensively on the hard – on the crimes committed during the occupation of Crimea and the armed conflict of Donbass.

Wayne Jordash QC

Well, I completely agree with that, Anton. I think that what President Zelensky’s done, in terms of creating under the good management of Gyunduz Mamedov a – essentially, a joined-up war crimes unit, in which all these overlapping jurisdictions can be avoided, and where the Office can become a kind of hub for thinking through these crimes, and thinking about how to prosecute and investigate them, in a way which is compliant with international law, is a fabulous development. And I think they’ve certainly put the right man in charge and I just hope that they provide him with the resources that’s needed.

The ICC, in my view, represents a really long-term, for sure, but a really good opportunity to have a firm international legal determination about the nature – first of all, the fact that Russia is in occupation and has not got sovereignty over Crimea. But secondly, also, a good opportunity to map some of the parameters of the conduct and the misconduct and I think that Ukraine has a role to play in providing the ICC with that information. And the ICC is going to equally suffer from a lack of resources, in terms of being able to access the territory and also, the lack of resources, in terms of investigators. But I think if it join hands with Mr Mamedov’s department, I think there can be a real reckoning, in terms of a historical record about what has happened in Crimea, and the fact that the Russians have violated occupation law left, right and centre. I think that’s the importance of the ICC case.

Dr Anton Korynevych

Yes, sure, and I think we are asked to answer the question, which I think will be the final one, why would – why do we believe that this lawfare, Ukraine’s lawfare versus Russia, is so important, and why these cases are so important? I would say that they are important because we all want to live in the world where international law prevails. So, we do believe, we in Ukraine do believe, that actually, law is an instrument for us to fight the Russian aggression. Whereas, Russian Federation uses armed force, Ukraine shall use international law to fight with this aggression. Because international law is on the side of Ukraine because Russia Federation blatantly violated pretty much everything, which it could violated, including the general principles of international law. So, we do believe in Ukrainian lawfare, and we do believe that we will have fruitful results in these issues.

Wayne Jordash QC

Well, and I would say I completely agree with that. I’m not necessarily as confident that the results will be fruitful. Certainly, as I said, I have questions about the ICJ case. But I completely agree that, you know, lawfare, having legal recognition, and the possibility of reparation and remediation in the future, is extremely valuable. And what I would say about the individual criminal responsibility, which is going to be considered by the International Criminal Court – international criminal law has a very good record of obtaining the people it indicts. It can take 15 years, as it did with Karadžić, who was the President of the Bosnian Serbs, who disappeared after the conflict in the former Yugoslavia and didn’t reappear for 15 years. Mladić, who was the Commander of the Bosnian Serbs, who has just been sentenced to life imprisonment, he, too, disappeared for 15 years. But eventually, those cases led to convictions and lengthy prison sentence and I think, you know, whilst it may seem impossible now, that anyone from the Russian Federation will end up in front of a court, things change. Who knows where we’ll be in five, ten years’ time?

Dr Anton Korynevych

Of course. Some orders for arrest against Russian officials from the ICC would be a good result for us.

Wayne Jordash QC

Yeah.

Dr Anton Korynevych

So, thank you, Wayne, for this great conversation. Many thanks to Orysia for great moderation and, actually, to Chatham House for giving us such an opportunity.

Wayne Jordash QC

Thank you very much.

Dr Anton Korynevych

Thank you.