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Taking Yanukovych to the International Criminal Court?

The savage beating on December 25th of investigative journalist Tatiana Chornovol has led Ukrainians to speculate about three possible explanations. The first is that the Yanukovych regime is directly responsible. The second is that rogue elements within the Ministry of Internal Affairs are responsible. The third is that it’s the Russians.

The third is least persuasive. Accordingly, the Putin regime is trying to destabilize Ukraine and weaken Yanukovych, in the hope, presumably, that both will be more pliant and open to the Kremlin’s machinations. But Ukraine is already unstable, Yanukovych is already in Putin’s pocket, and the Kremlin already calls the shots thanks to the neo-colonial deal it signed with Kyiv. I suppose it’s possible for Putin to be simultaneously stabilizing and destabilizing Yanukovych and Ukraine, but forgive me for suspecting this version is too clever by half.

The second is also unpersuasive, as it ignores the fact that Chornovol’s beating is just the latest in a long string of attacks on opposition activists. If rogues are trying to undermine Yanukovych, then they’re an odd lot, as their actions correspond exactly to the regime’s brutal treatment of the opposition since 2010. It’s the Yanukovych regime, after all, that’s been beating and jailing its opponents for the last three years. There were 101 instances of physical violence against Ukrainian journalists in 2013, up from 65 in 2012. And, if you recall, I had commented on the savage beatings of several FEMEN members last summer. If the regime’s previous violations of human and civil rights weren’t the handiwork of rogues, why should the Chornovol incident be?

Moreover, consider the following, probably incomplete, list of assaults on opposition activists since the Euro Revolution began.

  • November 22nd: Crimea, Serhii Mokrenyuk is attacked.
  • November 23rd: Zhytomyr, Vlad Puchych is beaten.
  • November 25th: Dnipropetrovsk, demonstrators attacked.
  • November 27th: Crimea, Mokrenyuk’s car is vandalized.
  • November 27th: Kyiv, Oleksandr Danylyuk’s car is set on fire.
  • November 28th: Zhytomyr, Vlad Puchych is beaten again.
  • November 29th: Ivano-Frankivsk, Maksym Kytsyuk is beaten.
  • November 30th: Ternopil, Volodymyr Khanas is beaten.
  • December 6th: Luhansk, Ihor Chudovsky’s car is set on fire.
  • December 13th: Kharkiv, demonstrators’ microbus is set on fire.
  • December 15th: Zhytomyr, Viktor Brokar is attacked.
  • December 16th: Uzhhorod, Yaroslav Shafar’s car is set on fire.
  •  December 20th: Kharkiv, demonstrators’ headquarters are attacked.
  • December 20th: Crimea, Serhii Kovalsky’s car is shot at.
  • December 21st: Odessa province, Yevhen Burkut’s care is set on fire.
  • December 21st: Kharkiv, Ivan Varchenko is attacked.
  • December 21st: Volodymyr Moralov is attacked; his car is set on fire.
  • December 22st: Zhytomyr, Dmytro Tkachuk is attacked.
  • December 23rd: Kharkiv, local activist’s car is set on fire.
  • December 24th: Kharkiv, Dmytro Pylypets is knifed.
  • December 25th: Kyiv, Tetiana Chornovol is beaten.
  • December 27th: Dnipropetrovsk, local activist’s car is vandalized.
  • December 27th: Kharkiv, local activist’s car is set on fire.
  • December 28th: Kharkiv, Ivan Varchenko’s car is set on fire.

I suppose it’s remotely possible that Yanukovych knows nothing about this violence, but it’s having begun just as soon as the Euro Revolution took off can’t be an accident. As the US. Embassy in Kyiv correctly observed, “We express our concern at a strikingly similar series of events over the last few weeks, targeting individuals, property, and political activity, apparently aimed at intimidating or punishing those linked to the EuroMaidan protests.”

The first version—that Yanukovych’s forces are directly responsible for the Chornovol beating—is the most persuasive, both because it fits the facts and because it’s the simplest (and the social sciences always prefer the simplest explanations). The regime is thuggish and has been using violence and force since its inception. Yanukovych is thuggish and has been using violence and force throughout his entire career. Facing a mortal threat to their existence—the Euro Revolution—he and his regime are responding in the only way they know how. And, having no legitimacy and popular appeal, they are responding in the only way they can. If you can’t charm the people, or fool them, or buy them off, you have no choice but to beat them into submission. Not surprisingly, most of the assaults have taken place in the south and east, where the democratic opposition is making inroads and the Regionnaires are panicking.

It may be that Yanukovych gave the order for all these acts of violence or it may be that he simply instructed his underlings to get the job done. Whatever the case, as the man who runs the show, he carries all the responsibility for any such violence his people carry out.

That violence may very well continue through 2014. The Euro Revolutionaries are not about to go away, and the regime knows that its back is to the wall. The 2015 presidential elections are approaching and, although Yanukovych has no chance of winning a fair and free ballot, now more than ever he must win. But everyone knows that the only way he can do so is by means of more violence and more intimidation and more beatings.

Imagine that this sad scenario comes true. Imagine that the violence becomes widespread and systematic. Yanukovych may then be open to prosecution for “crimes against humanity.” According to Article 7 of the Rome Statute of the International Criminal Court of July 17, 1998:

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The Yanukovych regime may already be guilty of “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” and “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds.” It’s not too hard to imagine an increasingly desperate regime’s resorting to “murder” and the “enforced disappearance of persons” in 2014.

Given the complexity of the International Criminal Court’s procedures, I’m not sure I’d bet on Yanukovych visiting The Hague in handcuffs. That said, miracles do happen, and concerned lawyers could increase the likelihood of their happening by preparing a case against Yanukovych ASAP.

In the meantime, as Ukrainians hope for Yanukovych’s appearance before the ICC and demand that the United States and Europe impose sanctions on the regime’s most thuggish thugs, the West may want to consider a policy measure it could easily and effortlessly adopt today. I wrote about it in a blog post of December 2, 2011.

Many Europeans probably don’t know that Ukraine has a 1998 statute on the books that permits just about anybody to acquire a diplomatic passport granting its bearer visa-free travel. As you’d expect, the president, prime minister, minister of foreign affairs, and genuine diplomats get to have a diplomatic passport. But so, too, do all parliamentary deputies, all cabinet ministers, all heads of provincial councils, the head of the secret police, a ton of other officials, and, just in case someone’s job description is not on the list, anybody with the “written approval of the Ministry of Foreign Affairs of Ukraine, on condition that the President of Ukraine approves it.”

The EU could end the Regionnaires’ monopoly on the real Europe in a flash. It wouldn’t have to blacklist Regionnaires, as some opposition democrats suggest. All it needs to do is quietly change a few rules and insist that the only Ukrainians who get to travel to the EU with diplomatic passports are bona fide diplomats engaged in bona fide diplomatic activity. Basta.

Everyone else—all the parliamentary deputies, all the provincial council heads, all the cabinet ministers, and all the president’s cronies—has to get on line at the appropriate European consulate, wait in stuffy rooms, fill out endless forms, pay exorbitant fees, produce invitations and bank accounts, and experience the same exact humiliation and frustration that regular folk do when they hope to go abroad.

 

Photo Credit: Mstyslav Chernov

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