{"id":1491,"date":"2018-11-07T13:29:11","date_gmt":"2018-11-07T13:29:11","guid":{"rendered":"http:\/\/blogs.uwe.ac.uk\/bristol-law-school\/?p=1491"},"modified":"2018-11-07T13:37:00","modified_gmt":"2018-11-07T13:37:00","slug":"student-blog-post-can-the-events-that-happened-during-the-maydan-protests-in-ukraine-be-qualified-as-crimes-against-humanity","status":"publish","type":"post","link":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/student-blog-post-can-the-events-that-happened-during-the-maydan-protests-in-ukraine-be-qualified-as-crimes-against-humanity\/","title":{"rendered":"Student blog post: Can the events that happened during the Maydan protests in Ukraine be qualified as crimes against humanity?"},"content":{"rendered":"

This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module \u2018Public International Law\u2019. Following from last year\u2019s blogging success, we decided to publish our students\u2019 excellent work in this area again in this way. The module is an option in the second year of\u00a0Bristol Law School\u2019s LLB programme. It continues to be led by Associate Professor\u00a0<\/em>Dr Noelle Quenivet<\/em><\/a>. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of\u00a0students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication<\/em><\/p>\n

Guest Author: Susanna Lando\u00a0<\/strong><\/p>\n

November 2013: President Yanukovych announces that Ukraine will not be signing the\u00a0European Association Agreement<\/a>.\u00a0Within a couple of days the situation gets\u00a0out of hand. The question however is: are the acts committed\u00a0enough to qualify as crimes against humanity under the\u00a0International Criminal Court (ICC) Statute<\/a>?\u00a0In my opinion, they are.<\/p>\n

After President Yanukovych\u2019s decision went public, peaceful protests started in the capital Kiev. The facts are briefly outlined in the diagram I have made below (Euromaidan Press<\/a>\u00a0for details).<\/p>\n

\"\"<\/p>\n

\u00a9 Susanna Lando<\/p>\n

\"\"<\/p>\n

Source: here<\/a><\/p>\n

Although not a party to the\u00a0Rome Statute<\/a>,\u00a0Ukraine accepted the jurisdiction of the ICC\u00a0by a\u00a0declaration<\/a>\u00a0under Article 12(3).The prosecutor however chose \u00a0not\u00a0to continue the investigations on the basis that\u00a0neither the widespread nor the systematic requirements\u00a0were\u00a0present\u00a0(see I Marchuk, \u2018No Crimes Against Humanity During the Maydan Protests in Ukraine? Or the ICC\u2019s Prosecutor Flawed interpretation of Crimes Against Humanity?\u2019\u00a0(2017) 35 Boston U Int\u2019l LJ<\/em> 50-55). The concept\u00a0of crimes against humanity is outlined\u00a0in\u00a0Article 7<\/a>\u00a0of the Rome Statute. Its chapeau contains two elements: the acts must be widespread or systematic and directed against a civilian population (see video<\/a>\u00a0for details). In addition, both an actus reus <\/em>and a mens rea <\/em>must be identified. The\u00a0actus reus\u00a0<\/em>consists of acts of serious violence listed under Article 7(1)(a)-(k). The\u00a0mens rea<\/em>\u00a0requires knowledge of the attacks on the civilian population, and\u00a0the awareness\u00a0that the\u00a0acts constitute part of the attacks\u00a0(ICTY, Prosecutor v Kunarac<\/em><\/a>,<\/u><\/em>\u00a0<\/em>para 99).\u00a0<\/em><\/p>\n

Let\u2019s first look at the chapeau and whether it is fulfilled in relation to the events that took place during the Maydan protests. A civilian population comprises any person who is not a member of the armed forces (Article 50(1)<\/a>\u00a0of\u00a0Additional Protocol I to the Geneva Conventions<\/a>).\u00a0A\u00a0person ceases to be a civilian when he\/she takes a direct part in the hostilities which is defined as the \u2018(collective) resort by the parties to the conflict to means and methods of injuring the enemy\u2019\u00a0(Interpretative Guidance on the Notion of Direct Participation in the Hostilities<\/a> 43). In this\u00a0case, however, the Maydan protests were performed peacefully and without\u00a0weapons, therefore the individuals can be classed as civilians.<\/p>\n

As the test for widespread or\u00a0<\/em>systematic is a disjunctive test (ICC, Situation in the Republic of Kenya<\/em><\/a>, ICC, para 94), I will therefore only examine the requirement for systematic\u00a0attacks. This concept was defined in\u00a0Prosecutor v Katanga<\/em><\/a>\u00a0<\/em>(ICC, para 394)\u00a0and\u00a0Prosecutor v Gbagbo<\/em><\/a>\u00a0(ICC, para 223) which referred to \u2018the organised nature of the acts of violence and the improbability of their random occurrence\u2019.\u00a0The acts were frequent between December 2013 and February 2014 and they\u00a0followed a clear scheme;\u00a0there was an escalation in the choice of the different methods of violence: the beatings, the kidnappings,\u00a0restrictive anti-protest laws, and finally the use of\u00a0snipers and grenades. The pattern is, I believe, clear, and the acts were premeditated and planned as mentioned in\u00a0Prosecutor v Akayesu<\/em><\/a>\u00a0(ICTR, para 580), which shows that the\u00a0mens rea<\/em>\u00a0for the act was also present. Furthermore,\u00a0it should be noted that the fact that they might have been committed for the President\u2019s personal ends is irrelevant (ICTY, Prosecutor v Kunarac<\/em><\/a>,<\/u><\/em>\u00a0<\/em>para 103).<\/p>\n

The specific crime\u00a0concerned in this case in my opinion is\u00a0persecution (Article 7(1)(h)\u00a0Rome Statute<\/a>).\u00a0This\u00a0entails three further requirements to the \u2018chapeau\u2019 of crimes against humanity. These include: \u2018severe deprivation of fundamental rights contrary to international law (Commentary Rome Statute<\/a>), on the basis of political,\u00a0[…]\u00a0religious grounds or\u00a0gender, and in connection with any act referred to in\u00a0article 7(1)<\/a>\u2019.<\/p>\n

With regards to fundamental rights being violated on the basis of discriminatory grounds, I believe there was a breach of Articles 7 and 10 of the\u00a0ECHR<\/a> in conjunction with article 14. Article 7 states that there shall be \u2018no punishment without the law\u2019.\u00a0In this case the Maydan protesters were unlawfully arrested\u00a0for\u00a0charges with a higher penalty than the one applicable before the anti-protest laws. Article 10 refers to people\u2019s freedom of expression which was clearly violated as the anti-protest laws cannot be viewed as falling within any of the lawful grounds for restrictions listed in the Convention (such as territorial integrity and prevention of crime). Finally, Article 14 regards discrimination on the basis of any ground such as \u2018ethnicity, religion, political or other opinions […]\u2019. The facts clearly suggest that the Ukrainian protesters were discriminated against because of their political ideas. Therefore both the first and\u00a0second requirement\u00a0for persecution are satisfied.<\/p>\n

Finally, the acts\u00a0must have been committed in connection to other acts\u00a0enumerated in Article 7(1)<\/a> of the ICC Statute<\/u>. As Zimmermann explains, \u2018[e]ven isolated acts […] will, if committed in connection with widespread or systematic acts of persecution, render those acts […] crimes against humanity\u2019 (A Zimmermann, \u2018Implementing the Statute of the International Criminal Court: The German Example\u2019 in LC Vohrah et al (eds), Man\u2019s Inhumanity to Man:<\/em> Essays on International law in Honour of Antonio Cassese <\/em>(Kluwer 2003)\u00a0977, 984).\u00a0In my opinion it is therefore quite evident, based on the facts, that the beatings, kidnappings, shootings and anti-protest laws were aimed at intimidating and mistreating the population in order to force them to stop the protests.<\/p>\n

Therefore, I argue that there are no doubts as to the nature of the crimes committed during the Maydan protests: they were crimes against humanity. Unfortunately, there has been a lack of interest in the application of international criminal law in this matter.<\/p>\n","protected":false},"excerpt":{"rendered":"

This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module \u2018Public International Law\u2019. Following from last year\u2019s blogging success, we decided to publish our students\u2019 excellent work in this area again in this way. The module is an option in … Continue reading “Student blog post: Can the events that happened during the Maydan protests in Ukraine be qualified as crimes against humanity?”<\/span><\/a><\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"wds_primary_category":0,"footnotes":""},"categories":[2,237,238],"tags":[30,109,163,181,185,208],"class_list":["post-1491","post","type-post","status-publish","format-standard","hentry","category-bristol-law-school","category-research","category-students","tag-bristol-law-school","tag-law","tag-research","tag-student-blog-post","tag-students","tag-uwe-bristol"],"_links":{"self":[{"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/posts\/1491","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/comments?post=1491"}],"version-history":[{"count":4,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/posts\/1491\/revisions"}],"predecessor-version":[{"id":1499,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/posts\/1491\/revisions\/1499"}],"wp:attachment":[{"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/media?parent=1491"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/categories?post=1491"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/tags?post=1491"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}