INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
APPLICATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION
OF THE FINANCING OF TERRORISM AND OF THE INTERNATIONAL CONVENTION
ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(UKRAINE V. RUSSIAN FEDERATION)
VOLUME XXVI OF THE ANNEXES
TO THE MEMORIAL
SUBMITTED BY UKRAINE
12 JUNE 2018
TABLE OF CONTENTS
Annex 990 Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment (6 December
1999)
Annex 991 Prosecutor v. Jelisić, Case No. IT-95-10-A, Judgment (14 December 1999)
Annex 992 Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Trial Judgment (7 June
2001)
Annex 993 Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment (2 August 2001)
Annex 994 Prosecutor v. Kunarac et al., Case No it-96-23/1-A, Appeals Judgment (12
June 2002)
Annex 995 Prosecutor v. Semanza, Case No. ICTR-97-20-T, Trial Judgment (15 May
2003)
Annex 996 Prosecutor v. Kajelijeli, Case No. ICTR-98-44A, Trial Judgment (1
December 2003)
Annex 997 Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Trial Judgment (22
January 2004)
Annex 998 Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Trial Judgment (17
June 2004)
Annex 999 Prosecutor v. Brđanin, Case No. IT-99-36-T, Trial Judgment (1 September
2004)
Annex 1000 Prosecutor v. Muhimana, Case No. ICTR-95-1B-T (28 April 2005)
Annex 1001 DH v. Czech Republic Application No.57325/00 (2008) 47 E.H.R.R. 3
(ECHR (Grand Chamber)
Annex 1002 Oršuš v. Croatia (2011) 52 EHRR 7 (ECHR) Application No. 15766/03,
Merits, 16 March 2010
Annex 1003 Case Against Hartmann, Case No. it-02-54-R77.5-A, Appeals Judgment (19
July 2011)
Annex 1004 Prosecutor v Tolimir Case No. IT-O5-88/2-T,Trials Chamber (12
December 2012)
Annex 1005 Prosecutor v Tolimir Case No. IT-O5-88/2-A,Appeals Chamber (8 April
2015)
Annex 1006 Intentionally Omitted
Annex 1007 Michael Rostovtzeff, Iranians and Greeks in South Russia (1922)
- ii -
Annex 1008 Petr N. Nadinskii, Boris Grekov, and the entry on the Crimean oblast in
the Bolshaia sovetskaia entsyklopediia (The Great Soviet Encyclopedia),
Vol. XXIII (Moscow, 1953)
Annex 1009 Alan Fisher, The Crimean Tatars 176, Hoover Institution Press (1978)
Annex 1010 Roman Solchanyk, Language Politics in the Ukraine Isabelle T. Kreindler,
ed. (1985)
Annex 1011 Theodor Meron, The Meaning and Reach of the International Convention
on the Elimination of All Forms of Racial Discrimination, American
Journal of International Law, Vol. 79 (1985)
Annex 1012 W. Wolfrum, 'The Committee on the Elimination of Racial Discrimination',
3 Max Planck Yearbook of United Nations Law 489 (1999)
Annex 1013 Greta Uehling, The First Independent Ukrainian Census in Crimea: Myths,
Miscoding, and Missed Opportunities, 1 Ethnic and Racial Studies, Vol. 27
(January 2004)
Annex 1014 Institute for Political and Ethnonational Research of the National
Academy of Sciences of Ukraine, Crimea in Ethnopolitical Measurements
(2005), cited in Krym v etnopolitychnomu vymiri (Kyiv: Instytut
politychnych i etnonatsional’nykh doslidzhen’ NAN Ukrainy, 2005)
Annex 1015 Gwendolyn Sasse, The Crimea Question: Identity, Transition, and Conflict,
Harvard University Press (2007)
Annex 1016 Razumkov Center, 5 National Security and Defense (2009)
Annex 1017 Andrew Wilson, Needs Assessment for the Crimean Tatars and Other
Formerly Deported Peoples of Crimea (2012)
Annex 1018 Andrew Wilson, The Crimean Tatars: A Quarter of a Century After Their
Return, Security and Human Rights 24 (2013)
Annex 1019 Mike Eckel, A Cry from Crimea, World Policy Journal (2014-2015)
Annex 1020 Photoreproduction of the Document Signed by Iosif Stalin, in Paul Robert
Magocsi, This Blessed Land: Crimea and the Crimean Tatars 118,
University of Toronto Press (2014)
Annex 1021 Greta Uehling, Genocide’s Aftermath: Neostalinism in Contemporary
Crimea, Genocide Studies and Prevention 9 (2015)
Annex 990
Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment (6 December 1999),
UNITED Nos ('\ (' r1IONS,I1ES
} ere#Crsma
R £.VE9
International Criminal Tribunal for Ry8y8 A 95
Tribunal p~nal international pour le Riklt
TrHal Chamber I
OR: FR.
18 g
Before:
Registrar:
Judge Laity Kama, Presiding
Judge Lennart Aspegren
hdge Navnethem Fillay
Mr. Agwu Okali
6 December 1999
ce--3-7
@6- AEC- K99
(23--ISA8)
THE PROSECUTOR
VERSUS
GEORGES ANDERSON NDERUBUM WE RUTAGANDA
Case No. 1CTR-96-.T
JUDGEMENT AND SENTENCE
The Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. James Stewart
Mr. Udo Herbert Gehring
Me. Holo Malwai
Defence Counsel:
Ms. Tipbalne Dickson
- ------··· .. · ·-----· .
1.s The Accused
24. On8April1999,the Accused testified that he was born on 28 November 1958 in Ngoma,
in Gishyita Commune, Kibuye Prdfectre in Rwanda. He grew up in Gitarama and Kibuye
Pr~fecture, before studying and working in Butare and Kigali Pr~fectures.
/2a4
Case N CTR.-96.3-T
25. The Accused testified that his father, Esdras Mpamo, held many civil, public and political
offices and government appointments, such as the Prefect of Kibuye, Cyanggu, and Butare
Pr~fectwres, the Rwandese Ambassador to Uganda and Germany and the Borgmestre of
Masango Commune, in the Gitarama Pr~feetwre. The Accused testified that although he traveled
a lot he considered his origin to be Masango Commune in the Gitarama Pr~fectwre because bis
father was the Bourgmestre in this Commune, and he returned there throughout his youth. The
Accused also testified that his father was a devout Seventh Day Adventist, and that his father's
religious and political beliefs significantly influenced his upbringing and subsequent political
decisions.
26. The Accused testified that he is married and he is a father of three children. He stated that
he received a degree in agricultural engineering in 1985, from National University of Rwanda
and thereafter he was appointed agricultural engineer. He stated that as an agricultural engineer,
he conducted agricultural research and he managed a farm which served as a model farm to the
farmers of Hye Commune. According to the Accused, he was allowed to purchase this farm by
virtue of a Presidential decree.
27. The Accused testified that he applied to the Agricultural Ministry to be transferred from
Butare in 1991, because of threats he had received from certain people in the Huye Commune,
following his purchase of the farm that he managed. He stated that he was subsequently
transferred to a post with the Rwandese Ministry of Agriculture in Kigali, although his family
remained in Butare.
18
;
Case N CTR.96.3.T
28, Te Accused testified that, in June 1991, he commenced work as a business man in
Kigali, dealing with import, under the name of Rutuganda SARL. He stated that Rutaganda
SARL was a highly profitable enterprise, and maintained exclusive imports and distribution
agreements with a mumber of European food and beverage producers, as well as exclusive supply
agreements with smaller bars, distributors, and organizations in Rwanda.
29. The Accused testified that he joined the MRND on or about September or October 1991.
He stated that various political parties offered him membership, but he joined the MRND
because he believed that this political party was in a position to provide the best economic and
military protection, both of which were significant concerns for him as a business proprietor in
Rwanda.
30. The Accused testified that, after he joined the MRND party in 1991, he became the
second vice president of its youth wing, the Interahamwe za MRND. He stated that he was
involved in the creation of the Interahamwe za MRND and met regularly with its other leaders.
03
19
Case N: CTR.96»3»T
2. THE APPLICABLE LAW
2.1 Individual Criminal Responsibility
31. The Accused is charged under Article 6(I) of the Statute with individual criminal
responsibility for the crimes alleged in the Indictment. Article 6() provides that:
A person who planned, instigated, ordered, committed or otherwise aided and abetted
in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the
present Statute shall be individually responsible for the crime".
32. In the Akayesu Judgement findings were made on the principle of individual criminal
responsibility under Article 6(1) of the Statute. The Chamber notes that these findings are, in the
main, the same as those made in the Tadie Judgement and in the judgements in The Prosecutor
v. Clement Kaytshema and Obed Rzindana (the "Kayis hema and Ruzindana Judgement")' and
The Prosecutor versus Zejnil Delalie, Zdravlo Muucie, Hazim Delic, Esad Landzo: 'The Celebici
Case', (the "Celebici Judgement". The Chamber is of the view that the position as derived
from the afore-mentioned case law, with respect to the principle of individual criminal
responsibility, and as articulated, notably, in the Akayes Judgement is sufficiently established
and is applicable in the instant case.
33. The Chamber notes, that under Article 6(1), an accused person may incur individual
criminal responsibility as a result of five forms of participation in the commission of one of the
three crimes referred to in the Statute. Article 6(D) covers various stages in the commission of
dgerent of the International Crill Tribe.l for Rwe, Trial Chrber DI, Proctor • Ce
Kayitho end Obed Renda, (Cass No, CTR 9$11)2I May 1999
judgement of the [atemnatlonal Crier.ial Tribunal fr the Former Yugoslavia, (Case No, 11+96.21»T)7%
reactor • ej! Dellie, Zdranvko Mcie Harr Dedie, Brod Lr.dee Cele bet Case, I November 199.8
r02
Case N: CTR-96--T
a crime, ranging from its initial planning to its execution.
34. The Chamber observes that the principle of individual criminal responsibility under
Article 6(implies that the planning or preparation of a crime actually leads to its commission
However, the Chamber notes that Article2(3)of the Statute, on the crime of genocide, provides
for prosecution for attempted genocide, among other acts. However, attempt is by definition an
inchoate erime, inherent in the criminal conduct per se irrespective of its result. Consequently,
the Chamber holds that an accused may incur individual criminal responsibility for inchoate
offences under Article 2(3) of the Statute and that, conversely, a person engaging in any form
of participation in other crimes falling within the jurisdiction of the Tribunal, such as those
covered in Articles 3 and 4 of the Statute, could incur criminal responsibility only if the offence
were consummated
35. The Chamber finds that in addition to incurring responsibility as a principal offender, the
Accused may also be held criminally liable for criminal acts committed by others if, for example,
he planned such acts, instigated another to commit them, ordered that they be committed or aided
and abetted another in the commission of such acts.
36. The Chamber defines the five forms of criminal participation under Article 6(1) as
follows:
37. Firstly, in the view of the Chamber, "planning" of a crime implies that one or more
persons contemplate designing the commission of a crime at both its preparatory and execution
38. In the opinion of the Chamber, the second form of participation, that is, incitement to
commit an offence, under Article 6(1), involves instigating another, directly and publicly, to
commit an offence. Instigation is punishable only where it leads to the actual commission of an
21
/0
offence desired by the instigator, except with genocide, where an accused may be held
individually criminally liable for incitement to commit genocide under Article 26(c) of the
Statute, even where such incitement fails to produce a result.'
39. In the opinion of the Chamber, ordering, which is a third for of participation, implies
a superior-subordinate relationship between the person giving the order and the one executing
it, with the person in a position of authority using such position to persuade another to commit
an offence.
40. Fourthly, an accused incurs criminal responsibility for the commission of a crime, under
Article 6(I), where he actually commits" one of the crimes within the jurisdiction rarionoe
materiae of the Tribunal.
41. The Chamber holds that an accused may participate in the commission of a crime either
through direct commission of an unlawful aet or by omission, where he has a duty to act.
42. A fifth and last for of participation where individual criminal responsibility arises under
Article 641), is "[...] otherwise aid[ing] and abet[ing] in the planning or execution of a crime
referred to in Articles 2 to 4",
43. The Chamber finds that aiding and abetting alone is sufficient to render the accused
criminally liable. In both instances, it is not necessary that the person aiding and abetting another
to commit an offence be present during the commission of the crime. The relevant act of
assistance may be geographically and temporally unconnected to the actual commission of the
offence. The Chamber holds that aiding and abetting include all acts of assistance in either
physical form or in the form of moral support; nevertheless, it emphasizes that any act of
22
Case N6 CTR-96.3.T
participation must substantially contribute to the commission of the crime. The aider and abettor
assists or facilitates another in the accomplishment of a substantive offence
23 w
Ce Ne. CTR96..T
2.2Genocide (Article 2 of the Statute)
44. In accordance with the provisions of Article 2(3¥a) of the Statute, which stipulate that
the Tribunal shall have the power to prosecute persons responsible for genocide, the Prosecutor
bas charged the Accused with genocide, Count I of tbe Indictment.
45, The definition of genocide, as given in Article 2 of the Tribunal's Statute, is taken
verbatim from Articles 2 and 3 of the Convention on the Prevention and Punishment of the
Crime of Genocide (the "Genocide Convention")! It reads as follows:
Genocide means any of the following acts committed with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such;
(a)
0)
(c)
Killing members of the group;
Causing serious bodily or mental harm to members of the group
Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in pant;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group."
€ewention on the Prevention ad Pu.islent of the Crime of Genocide was adopted by be Loited
Mio Gnarl Assembly on De0amber I4.8
24 pf
Case N: CTR.-96.31.T
46. The Genocide Convention is undeniably considered part of customary international law,
as reflected in the advisory opinion issued in 195 by the International Count of Justice on
reservations to the Genocide Convention, and as noted by the United Nations Secretary-General
in his Report on the establishment of the International Criminal Tribunal for the Former
Yugoslavia"
47, The Chamber notes that Rwanda acceded, by legislative decree, to the Convention on
Genocide on 12 February 1975 Therefore the crime of genocide was punishable in Rwanda in
1994
48. The Chamber adheres to the definition of the crime of genocide as it was defined in the
Akayes Judgement
49. The Chamber accepts that the crime of genocide involves, firstly, that one of the acts
listed under Article 262) of the Statute be committed; secondly, that such an act be committed
against a national, ethnical, racial or religious group, specifically targeted as such; and, thirdly,
that the "act be committed with the intent to destroy, in whole or in part, the targeted group".
Tbe Acts Enumerated under Article 2(2) to (e) of the Statute
50. Article 262a) of the Statute, like the corresponding provisions of the Genocide
Convention, refers to "meurtre" in the French version and to "killing"in the English version.
In the opinion of the Chamber, the term "killing" includes both intentional and unintentional
serery-General'Report prunt to pee 2of Resolurion 808 (99.) of the Scurry Council, J May I.J,
"Legislative Decree of 2 February 197$, Olli O.ere of he Republic of Rwad, 1975, p.20. Rwid
coded to th Genocide Cooventioo but stated that i shall not be bud by Artile of this Convention
(9-
Case N6 CTR.96.31.T
homicides, whereas the word "meurtre" covers homicide committed with the intent to cause
death. Given the presumption of innocence, and pursuant to the general principles of criminal
law, the Chamber holds that the version more favourable to the Accused should be adopted, and
finds that Article 2(2¥a) of the Statute must be interpreted in accordance with the definition of
murder in the Criminal Code of Rwanda, which provides, under Article 3l1, that "Homicide
committed with intent to cause death shall be treated as murder"
51. For the purposes of interpreting Article 2(2¥b) of the Statute, the Chamber understands
the words serious bodily or mental harm" to include acts of bodily or mental torture, inhumane
or degrading treatment, rape, sexual violence, and persecution. The Chamber is of the opinion
that "serious harm" need not entail permanent or irremediable harm.
52. Inthe opinion of the Chamber, the words "deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in whole or in pant", as indicated in
Article 262¥c) of the Statute, are to be construed "as methods of destruction by which the
perpetrator does not necessarily intend to immediately kill the members of the group", but which
are, ultimately, aimed at their physical destruction. The Chamber holds that the means of
deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction, in whole or in part, include subjecting a group of people to a subsistence diet,
systematic expulsion from their homes and deprivation of essential medical supplies below a
minimum vital standard.
53. For the purposes of interpreting Article 22¥d) of the Statute, the Chamber holds that the
words "measures intended to prevent births within the group" should be construed as including
sexual mutilation, enforced sterilization, forced birth control, forced separation of males and
females, and prohibition of marriages. The Chamber notes that measures intended to prevent
births within the group may be not only physical, but also mental.
26
Case N6: CTR.96..T
54. The Chamber is of the opinion that the provisions of Article 2(2(e) of the Statute, on the
forcible transfer of children from one group to another, are aimed at sanctioning not only any
direct act of forcible physical transfer, but also any acts of threats or trauma which would lead
to the forcible transfer of children from one group to another group.
Potential Groups of Vietins of the Crime of Genocide
55. The Chamber is of the view that it is necessary to consider the issue of the potential
groups of victims of genocide in light of the provisions of the Statute and the Genocide
Convention, which stipulate that genocide aims at "destroy[ing], in whole or in part, a national,
ethnical, racial or religious group, as such.
56. The Chamber notes that the concepts of national, ethnical, racial and religious groups
have been researched extensively and that, at present, there are no generally and internationally
accepted precise definitions thereof. Each of these concepts must be assessed in the light of a
particular political, social and cultural context. Moreover, the Chamber notes that for the
purposes of applying the Genocide Convention, membership of a group is, in essence, a
subjective rather than an objective concept. The victim is perceived by the perpetrator of
genocide as belonging to a group slated for destruction. In some instances, the victim may
perceive himself/herself as belonging to the said group.
57, Nevertheless, the Chamber is of the view that a subjective definition alone is not enough
to determine victim groups, as provided for in the Genocide Convention. It appears, from a
reading of the rravaur pr~paratoires of the Genocide Convention', that certain groups, such as
political and economic groups, have been excluded from the protected groups, because they are
considered to be "mobile groups" which one joins through individual, political commitment
seary Records of the meetings of de Sixth Comitee of the General Assembly, 2I September+
0 December 1948, Off\iat Records of th General Assembly
(48
27
Case N6. 1CTR.96-3.T
That would seem to suggest a contrario that the Convention was presumably intended to cover
relatively stable and permanent groups.
58. Therefore, the Chamber holds that in assessing whether a particular group may be
considered as protected from the crime of genocide, it will proceed on a case-by-case basis,
taking into account both the relevant evidence proffered and the political and cultural context as
indicated supra.
The Special Intent of the Crime of Genocide.
59. Genocide is distinct from other crimes because it requires dolus specialis, a special intent.
Special intent of a crime is the specific intention which, as an element of the crime, requires that
the perpetrator clearly intended the result charged. The dolus speciallis of the crime of genocide
lies in "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group,
as such". A person may be convicted of genocide only where it is established that he committed
one of the acts referred to under Article 262) of the Statute with the specific intent to destroy, in
whole or in part, a particular group.
60. In concrete terms, for any of the acts changed to constitute genocide, the said acts must
have been committed against one or more persons because such person or persons were members
of a specific group, and specifically, because of their membership in this group. Thus, the victim
is singled out not by reason of his individual identity, but rather on account of his being a
member of a national, ethnical, racial or religious group. The victim of the act is, therefore, a
member of a given group selected as such, which, ultimately, means the victim of the crime of
genocide is the group itself and not the individual alone. The perpetration of the act charged,
therefore, extends beyond its actual commission, for examnple, the murder of a particular person,
to encompass the realization of the ulterior purpose to destroy, in whole or in part, the group of
which the person is only a member.
28
Ce No CTR.-963-T
6I. The dolus specialis is a key element of an intentional offence, which offence is
characterized by a psychological nexus between the physical result and the mental state of the
perpetrator. With regard to the issue of determining the offender's specific intent, the Chamber
applies the following reasoning, as held in the Akayes Judgement:
"[...J intent is a mental factor which is difficult, even impossible, to determine.
This is the reason why, in the absence of a confession from the accused. his intent
can be inferred from a certain number of presumptions of fact. The Chamber is
of the view that the genocidal intent inherent in a particular act charged can be
inferred from the general context of the perpetration of other culpable acts
systematically directed against that same group, whether these acts were
committed by the same offender or by others. Other factors, such as the scale of
atrocities committed, their general nature, in a region or a country, or
furthermore, the fact of deliberately and systematically targeting victims on
account of their membership of a particular group, while excluding the members
of other groups, can enable the Chamber to infer the genocidal intent of a
particular aet.""
62 Similarly, in the Kayishema and Ruzindana Judgement, Trial Chamber [l held that:
[...] The Chamber finds that the intent can be inferred either from words or deeds
and may be determined by a pattemn of purposeful action. In particular, the
Chamber considers evidence such as[.J the methodical way of planning, the
systematic manner of killing. [...J
29 f
Case N6: CTR.963.T
63, Therefore, the Chamber is of the view that, in practice, intent can be, on a case-by-case
basis, inferred from the material evidence submitted to the Chamber, including the evidence
which demonstrates a consistent pattern of conduet by the Accused.
30
/9/
Case N CTR.96..T
2.3 Crimes agaist Humanity (Article 3 of the Statute)
64. The Chamber notes that the Akayesu Judgement traced the historical development and
evolution of crimes against humanity, as far back as the Charter of the International Military
Tribunal of Nuremberg. The AkayesuJudgement also considered the gradual evolution of crimes
against humanity in the cases of Eichmann, Barbie, Towvier and Papan", The Chamber concurs
with the historical development of crimes against humanity, as set forth in the Akayes
Judgement.
65. The Chamber notes that Article 7 of the Statute of the International Criminal Court
defies a crime against humanity as any of the enumerated acts committed as pant of a
widespread or systematic attack directed against any civilian population, with knowledge of the
attack. These enumerated acts are murder; extermination; enslavement; deportation or forcible
transfer of population; imprisonment or other severe deprivation of physical Liberty in violation
of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable
gravity; persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender or other grounds that are universally recognised as
impermissible under international law, in connection with any aet referred to in this paragraph
or any other crime within the jurisdiction of the court; enforced disappearance of persons; the
crime of apartheid; other inhumane acts of a similar character intentionally causing great
suffering or serious injury to body or mental or physical health."
gee hdgmt paer. 63 10 76
pee Sette of the tternational Crim ii Court,doped by the United Nations Diplomic Conference of
Plenipotentiaries on the Establisho ot of an nt4rational Cort on lJly 199.8
31
I
Case N: CIR-96»T
Crimes against Humanity pursuant to Article 3 of the Statute of the Tribunal
66. Article 3 of the Statute confers on the Tribunal the jurisdiction to prosecute persons for
various inhumane acts which constitute crimes against humanity. The Chamber concurs with the
reasoning in the Akayesu Judgement that offences falling within the ambit of crimes against
humanity may be broadly broken down into four essential elements, namely:
(a) the actus reus must be inhumane in nature and character, causing great suffering,
or serious injury to body or to mental or physical health
(b) the actus reus must be committed as part of a widespread or systematic attack
(c) the actus reus must be committed against members of the civilian population
(d) the actus reus must be committed on one or more discriminatory grounds,
namely, national, political, ethnic, racial or religious grounds.
The Acts Reus Must be Committed as Part of Widespread or Systematic Attack
67, The Chamber is of the opinion that the acts reus cannot be a random inhumane act, but
rather an act committed as part of an attack. With regard to the nature of this attack, the Chamber
otes that Article 3 of the English version of the Statute reads [...] as part of a widespread or
systematic attack. [...] whilst the French version of the Statute reads "[...J dans le cadre d'une
attaque g~n~ralis~e et syst~matique [...". The French version requires that the attack be both of
a widespread and systematic nature, whilst the English version requires that the attack be of a
widespread or systematic nature and need not be both
80
32
Case N: CTR.6»»T
68. The Chamber notes that customary international law requires that the attack be either of
a widespread or systematic nature and need not be both. Tbe English version of the Statute
conforms more closely with customary international law and the Chamber therefore accepts the
elements as set forth in Article 3 of the English version of the Statute and follows the
interpretation in other [CTR judgements namely: that the "attack"under Article 3 of the Statute,
must be either of a widespread or systematic nature and need not be both"
69. The Chamber notes that "widespread, as an element of crimes against humanity, was
defined in the Akayesu Judgement, as massive, frequent, large scale action, carried out
collectively with considerable seriousness and directed against a multiplicity of victims, whilst
systematic"was defined as thoroughly organised action, following a regular patter on the basis
of a common policy and involving substantial public or private resources", The Chamber
concurs with these definitions and finds that it is not essential for this policy to be adopted
formally as a policy of a State. There must, however, be some kind of preconceived plan or
policy."
70. The Chamber notes that "attack", as an element of crimes against humanity, was defined
in the Akayes Judgement, as an unlawful act of the kind enumerated in Article 34a)to (i of the
Statute, such as murder, extermination, enslavement etc. An attack may also be non-violent in
nature, like imposing a system of apartheid, which is declared a crime against humanity in
Article I of the Apartheid Convention of 1973, or exerting pressure on the population to act in
gays hudgt pars. 80
keport on the nterational Law Coreissio to he General Assembly, SI UN. 6A0OR Supp
(No 0)at 94 UM.D6. A/I/19(16
33 #/
Ce N CTR-96.3.T
a particular manner may also come under the purview of an attack, if orchestrated on a massive
scale or in a systematic manner, The Chamber concurs with this definition.
71. The Chamber considers that the perpetrator must have:
"[... Jactual or constructive knowledge of the broader context of the attack, meaning that
the accused must know that his act(s) is part of a widespread or systematic attack on a
civilian population and pursuant to some kind of policy or plan."
The Aetus Reus Must be Directed against the Civilian Population
7 The Chamber notes that the acts reus must be directed against the civilian population,
if it is to constitute a crime against humanity. In the Akayesu Judgement, the eivilian population
was defined as people who were not taking any active part in the hostilities". The fact that there
are certain individuals among the civilian population who are not civilians does not deprive the
population of its civilian character". The Chamber concurs with this definition.
The Acts Reus Must be Committed on Discriminatory Grounds
73 The Statute stipulates that inhumane acts committed against the civilian population must
be committed on "national, political, ethnic, racial or religious grounds." Discrimination on the
u Jdgemend, peers. $$2 Noe that thl defioitie ii lades th¢ def'ioition of eivili"to th goie
of peno protected by Connon Article of the Geneva Coven0es
"nude. $82, Protocol Additional to be Geneva Coventio of l2 August I49, ad relating to th
Proteeio of' Viins of international Armed C, oict Article 0
Ce Ne CTR-9.31.-T
basis of a person's political ideology satisfies the requirement of 'political' grounds as envisaged
in Article 3 of the Statute.
74. Inhumane acts committed against persons not falling within any one of the discriminatory
categories may constitute crimes against humanity if the perpetrator's intention in committing
these acts, is to further his attack on the group discriminated against on one of the grounds
specified in Article 3 of the Statute. The perpetrator must have the requisite intent for the
commission of crimes against humanity.
75. The Chamber notes that the Appeals Chamber in the Tadie Appeal ruled that the Trial
Chamber erred in finding that all crimes against humanity require a discriminatory intent. The
Appeals Chamber stated that a discriminatory intent is an indispensable element of the offence
only with regard to those crimes for which this is expressly required, that is the offence of
persecution, pursuant to Article S(h) of the Statute of the International Criminal Tribunal for the
former Yugoslavia (the I€TY"),''
76. The Chamber considers the provisions of Article S of the IC'TY Statute, as compared to
the provisions of Article 3 of the ICTR, Statute and notes that, although the provisions of both
the aforementioned Articles pertain to crimes against humanity, except for persecution, there is
a material and substantial difference in the elements of the offence that constitute crimes against
humanity. This stems from the fact that Article 3 of the [CTR Statute expressly provides the
enumerated discriminatory grounds of "national, political, ethnic, racial or religious", in respect
of the offencesof Murder; Extermination; Deportation; Imprisonment; Torture; RRape; and; Other
Inhumane Acts, whilst the [CTY Statute does not stipulate any discriminatory grounds in respect
of these offences..
«87
35
Ce No CTR-6.1.T
The Enumerated Acts
77. Article 3 of the Statute sets out various acts that constitute crimes against humanity,
namely: murder; extermination; enslavement; deportation; imprisonment; torture; rape;
persecution on political, racial and religious grounds; and; other inhumane acts. Although the
category of acts that constitute crimes against humanity are set out in Article 3, this category is
not exhaustive. Any act which is inbumane in nature and character may constitute a crime against
humanity, provided the other elements are satisfied. This is evident in () which caters for all
other inhumane acts not stipulated in (a) to (h) of Article 3.
78. The Chamber notes that in respect of crimes against humanity, the Accused is indicted
for murder and extermination. The Chamber, in interpreting Article 3 of the Statute, will focus
its discussion on these offences only.
Murder
79. Pursuant to Article 3(a) of the Statute, murder constitutes a crime against humanity. The
Chamber notes that Article 3(a) of the English version of the Statute refers to "Murder", whilst
the French version of the Statute refers to "Assassinar". Customary International Law dictates
that it is the offence of Murder" that constitutes a crime against humanity and not "Assassinar"
80. The Akayesu Judgement defined Murder as the unlawful, intentional killing of a human
being. The requisite elements of murder are:
(a) The victim is dead;
(b) The death resulted from an unlawful act or omission of the accused or a
subordinate;
36
Case N& CTR.963.1
(c) At the time of the killing the accused or a subordinate had the intention to kill o
inflict grievous bodily harm on the deceased having known that such bodily harm
is likely to cause the victim's death, and is reckless as to whether or not death
ensures;
(d) The victim was discriminated against on any one of the enumerated
discriminatory grounds;
(e) The victim was a member of the civilian population; and
(f The act or omission was pant of a widespread or systematic attack on the civilian
population.
81. The Chamber concurs with this definition of murder and is of the opinion that the act or
omission that constitutes murder must be discriminatory in nature and directed against a member
of the civilian population.
82 Pursuant to Article 34c) of the Statute, extermination constitutes a crime against
humanity. By its very nature, extermination is a crime which is directed against a group of
individuals. Extermination differs from murder in that it requires an element of mass destruction
which is not a pre-requisite for murder.
37 #
Ce No: CTR.96-3.T
83. The Akayesu Judgement, defined the essential elements of extermination as follows:
(a) the accused or his subordinate participated in the killing of certain named or
described persons;
(b) the act or omission was unlawful and intentional;
(c) the unlawful act or omission must be part of a widespread or systematic attack;
(d) the attack must be against the civilian population; and
(e) the attack must be on discriminatory grounds, namely: national, political, ethnic,
racial, or religious grounds.
84. The Chamber concurs with this definition of extermination and is of the opinion that the
act or omission that constitutes extermination must be discriminatory in nature and directed
against members of the civilian population. Further, this act or omission includes, but is not
limited to the direct aet of killing. It can be any act or omission, or cumulative acts or omissions,
that cause the death of the targeted group of individuals.
(68)
38
Annex 991
Prosecutor v. Jelisić, Case No. IT-95-10-A, Judgment (14 December 1999)
UNITED
NATIONS
International Tribunal for the
Prosecution of Persons Responsible for
Serious Violations of International
Humanitarian Law Committed in the
Territory of The Former Yugoslavia
since 1991
Case No. IT-95-10-T
Date: 14 December 1999
English
Original: French
Case No. IT-95-10-T 14 December 1999
IN THE TRIAL CHAMBER
Before: Judge Claude Jorda, Presiding
Judge Fouad Riad
Judge Almiro Rodrigues
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 14 December 1999
THE PROSECUTOR
v.
GORAN JELISI]
JUDGEMENT
The Office of the Prosecutor: Defence Counsel:
Mr. Geoffrey Nice Mr. Veselin Londrovi}
Mr. Vladimir Tochilovsky Mr. Michael Greaves
i
Case No. IT-95-10-T 14 December 1999
CONTENTS
I. INTRODUCTION ................................................................................................................1
A. The Indictment ...............................................................................................................1
B. Procedural Background..................................................................................................2
II. HISTORICAL BACKGROUND..........................................................................................5
III. THE CRIMES ADMITTED TO BY THE ACCUSED IN THE GUILTY PLEA............6
A. Violations of the laws or customs of war.......................................................................8
1. Murder........................................................................................................................9
2. Cruel Treatment........................................................................................................11
3. Plunder .....................................................................................................................13
B. Crimes against humanity..............................................................................................13
1. Underlying offences: murder and other inhumane acts ...........................................14
(a) murder ..................................................................................................................14
(b) other inhumane acts..............................................................................................14
2. An attack against a civilian population as a general condition of the charge ..........15
(a) A widespread or systematic attack.......................................................................15
(b) against a civilian population.................................................................................15
3. An attack in which an accused participates in full knowledge of the significance of
his acts..............................................................................................................................16
C. Conclusion....................................................................................................................17
IV. GENOCIDE.....................................................................................................................17
A. The material element of the offence: the murder of members of a group....................20
B. The mens rea of the offence: the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group.........................................................................................20
1. Acts committed against victims because of their membership in a national, ethnical,
racial or religious group ...................................................................................................21
(a) The discriminatory nature of the acts...................................................................21
(b) Groups protected by Article 4 of the Statute........................................................22
(c) Proof of discriminatory intent..............................................................................23
2. The intent to destroy, in whole or in part, the group as such ...................................24
(a) Definition .............................................................................................................24
(b) The degree of intention required ..........................................................................27
(i) The intention to commit “all-inclusive” genocide ...............................................28
(ii) Jelisi}’s intention to commit genocide.............................................................31
V. SENTENCING....................................................................................................................34
A. Principles and Purpose of the Sentence........................................................................34
B. Conclusions of the Parties............................................................................................37
C. Determination of the penalty........................................................................................38
1. The accused..............................................................................................................38
2. Mitigating circumstances .........................................................................................38
3. Aggravating circumstances......................................................................................40
4. Calculation of the length of custody pending trial ...................................................41
5. The sentence itself....................................................................................................41
VI. DISPOSITION.................................................................................................................42
1
Case No. IT-95-10-T 14 December 1999
I. INTRODUCTION
1. The trial of Goran Jelisi} before Trial Chamber I (hereinafter “the Trial Chamber”) of
the International Tribunal for the Prosecution of Persons Responsible for Serious Violations
of International Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991 (hereinafter “the Tribunal”) opened on 30 November 1998 and ended on 25
November 1999.
2. Further to several amendments to the indictment, Goran Jelisi} had to answer to
thirty-two (32) distinct counts1 of genocide, violations of the laws or customs of war and
crimes against humanity.
A. The Indictment
3. The indictment2 charges Goran Jelisi} with genocide:
In May 1992, Goran Jelisi}, intending to destroy a substantial or significant part of the Bosnian Muslim
people as a national, ethnical or religious group, systematically killed Muslim detainees at the Laser
Bus Co., the Br~ko police station and Luka camp. He introduced himself as the “Serb Adolf”, said that
he had come to Br~ko to kill Muslims and often informed the Muslim detainees and others of the
numbers of Muslims he had killed. In addition to killing countless detainees, whose identities are
unknown, Goran Jelisi} personally killed the victims in paragraphs 16-25, 30 and 33. By these actions,
Goran Jelisi} committed or aided and abetted:
Count 1: Genocide, a crime recognised by Article 4(2)(A) of the Tribunal’s Statute.
The accused was also specifically prosecuted for murdering thirteen (13) persons3, for
inflicting bodily harm on four (4) persons4 and for stealing money from the detainees in Luka
camp – a count characterised as “plunder” in the indictment5. For these acts, the accused was
prosecuted for violations of the laws or customs of war and for crimes against humanity.
1 Second Amended Indictment against Goran Jelisi} and Ranko ^esi}, 19 October 1998, paras. 14 ff. Ranko
^esi} has not been arrested to date.
2 In this instance, the Second Amended Indictment. See the Procedural Background below.
3 Counts 4 to 23, 32, 33, 38 and 39 (for counts 14 and 15, see footnote 7 below). All the victims 1isted under
these counts were also specified under genocide.
4 Counts 30, 31, 36, 37, 40 and 41.
5 Count 44.
2
Case No. IT-95-10-T 14 December 1999
B. Procedural Background
4. The initial indictment issued against the accused on 30 June 1995 was confirmed by
Judge Lal Chand Vohrah on 21 July 1995. Goran Jelisi} was accused of genocide (Article
4(2) of the Statute), grave breaches of the Geneva Conventions of 1949 (Article 2(a) of the
Statute), violations of the laws or customs of war (Article 3 of the Statute) and crimes against
humanity (Article 5 (a) of the Statute).
5. Goran Jelisi} was arrested on 22 January 1998 in accordance with a warrant of arrest
issued by the Tribunal and immediately transferred to its Detention Unit in The Hague. That
same day, the President of the Tribunal, Judge Gabrielle Kirk McDonald, assigned the case to
Trial Chamber I, composed of Judge Claude Jorda, presiding, Judge Fouad Riad and Judge
Almiro Rodrigues.
6. Pursuant to Rule 62 of the Rules of Procedure and Evidence of the Tribunal
(hereinafter “the Rules”), the initial appearance of the accused took place on 26 January 1998
before Trial Chamber I. The accused pleaded not guilty to all the counts on which he was
charged.
7. On 11 March 1998, the Trial Chamber issued a confidential Order that the accused
undergo a psychiatric examination. The expert report dated 6 April 1998 declared the accused
fit to understand the nature of the charges brought against him and to follow the proceedings
fully informed. He was therefore declared fit to stand trial.
8. In the amended indictment of 13 May 1998, Goran Jelisi} was charged with genocide
under Article 4(2) of the Statute, multiple violations of the laws or customs of war under
Article 3 of the Statute and crimes against humanity under Article 5(a) of the Statute. The
indictment was again amended by the Prosecutor on 19 October 1998 in accordance with
Goran Jelisi}’s intention to plead guilty to 31 of the counts.
3
Case No. IT-95-10-T 14 December 1999
9. On 19 August 1998, at the request of Defence counsel to the accused, Mr. Londrovi},
himself assigned, the Registry of the Tribunal appointed Mr. Nikola P. Kostich as cocounsel
6.
10. Following discussions between the parties and pre-trial preparations organised by
Judge Fouad Riad under the authority of the Trial Chamber, an “Agreed Factual Basis for
Guilty Pleas to be Entered by Goran Jelisi}” was signed by the parties on 9 September 1998.
A second amended indictment relying upon this Agreed Factual Basis was confirmed by
Judge Lal Chand Vohrah on 19 October 1998.
11. On 29 October 1998, Goran Jelisi} confirmed that he was pleading not guilty to
genocide but guilty to war crimes and crimes against humanity as described in the Agreed
Factual Basis of 9 September 19987. The Trial Chamber declared that the guilty plea had
been informed and that it was not equivocal. It also noted that the Prosecution and Counsel
for the accused did not disagree on any of the facts relating to the guilty plea.
12. In a note dated 24 November 1998, the Defence indicated its intention to invoke the
special defence of alibi pursuant to Sub-rule 67(A)(ii)(a)(b) of the Rules for the acts which
the accused allegedly committed after 19 May 1992. The note stated that Goran Jelisi}
purportedly fled Br~ko on 19 May 1992 and consequently could not have committed the acts
ascribed to him in the indictment after this date. The Defence also intended to invoke two
special grounds of defence, the seriously diminished psychological responsibility of the
accused at the time the acts mentioned in the indictment were committed and the fact that the
accused allegedly acted on the orders of his superiors and under hierarchical duress.
13. The trial of the accused was begun on 30 November 1998 and was suspended on 2
December 1998 but could not then be swiftly re-opened due to the inability of Judge Fouad
Riad to participate in the hearings on medical grounds, the refusal of Goran Jelisi} to have
6 This assignment was conducted in accordance with the Rules which provide that the accused may request the
assignment of a co-counsel in the sixty (60) days preceding the date that the trial opens.
7 The wording of counts 14 and 15 is slightly ambiguous. Whilst the heading of paragraph 21 of the indictment
specifies the murder of two persons, Sead ]erimagi} and Jasminko ^umurovi}, the text only refers to the
incident in which “Goran Jelisi} shot and killed Jasminko ^umurovi}”. But the Agreed Factual Basis drafted by
the Prosecution and the Defence related solely to J. ^umurovi} and in the statements attached to this agreement
(“Factual basis for the charges to which Goran Jelisi} intends to plead guilty” (hereinafter “the factual basis”),
Annex II, (confidential) statement of 29 June 1998, pp. 20-21), Goran Jelisi} did not admit having killed Sead
^erimagi}. In these circumstances, the Trial Chamber deems that the indictment and the guilty plea do concern
only the murder of Jasminko ^umurovi}.
4
Case No. IT-95-10-T 14 December 1999
him replaced and the unavailability of Judge Claude Jorda and Judge Almiro Rodrigues who
were occupied in another trial which had commenced before that of Goran Jelisi}. On 18
December 1998, the Trial Chamber issued an order granting protective measures to certain
witnesses whose names and other identifying elements were not to be revealed during open
sessions.
14. In view of the delay in the trial, the Trial Chamber considered pronouncing its
decision on the guilty plea, including the corresponding sentence, if necessary, but to keep
the genocide trial back for a later date. At the status conference held to take up this issue on
18 March 1999, the Defence declared itself in favour of a single sentence, citing the close
connection between the counts to which Goran Jelisi} had pleaded guilty and the count of
genocide to which he had pleaded not guilty. The hearings finally resumed once more on 30
August 1999. On 22 September 1999, the Prosecutor announced that she had finished
presenting her evidence.
15. Having heard the arguments of the Prosecution, the Judges of the Trial Chamber
reviewed the evidence presented by the Prosecution. In deliberations, they concluded that,
without even needing to hear the arguments of the Defence, the accused could not be found
guilty of the crime of genocide.
16. In these conditions, on 12 October 1999, the Trial Chamber informed the parties
pursuant to Rule 98ter of the Rules that it would render its Decision on 19 October 1999. On
15 October 1999 the Prosecutor filed a Motion for the Trial Chamber to postpone its Decision
until the Prosecution had had the opportunity to present its arguments stating inter alia that
the effect of Rule 98ter could not be to deprive the Prosecution of its right to submit a closing
argument on the law and the facts. At the hearing of 19 October 1999, the Trial Chamber,
adjudging that an indissociable link existed between the Motion submitted by the Prosecutor
and the Decision on the merits, decided that there was reason to join the interlocutory Motion
to the merits. The Trial Chamber then found Goran Jelisi} guilty of war crimes and crimes
against humanity but declared his acquittal on the count of genocide pursuant to Rule 98 bis
of the Rules8.
8 Rule 98 bis obliges the Trial Chamber to pronounce the acquittal of the accused when the evidence presented
by the Prosecution is insufficient to sustain a conviction.
5
Case No. IT-95-10-T 14 December 1999
17. Lastly, the Trial Chamber heard the witnesses and the arguments of the parties
relating to the sentencing. The hearings were declared closed on 25 November 1999 pursuant
to Rule 81 of the Rules.
II. HISTORICAL BACKGROUND9
18. This trial concerns the events which occurred in May 1992 in the municipality of
Br~ko, a sizeable town in the Posavina corridor in the extreme north-eastern corner of
Bosnia-Herzegovina on the border with Croatia.
19. On 30 April 1992, two explosions destroyed the two bridges in Br~ko spanning the
Sava River10. The Trial Chamber heard testimony that the Serbian political officials in Br~ko
had previously demanded that the town be split into three sectors, including one which was to
be exclusively Serbian11. These explosions may be considered as marking the commencement
of hostilities by the Serbian forces12. On 1 May 1992, radio broadcasts ordered Muslims and
Croats to surrender their arms13. As from 1 May 1992, the Serbian forces, comprised of
soldiers and paramilitary and police forces, deployed within the town14.
20. Several statements reproduced in the factual basis bring to light the involvement of
Serbian military, paramilitary and police forces not from the municipality of Br~ko15. One
witness declared that he had seen Arkan’s men criss-cross the town carrying pumps used to
set fire to the houses16. The presence of “Arkan’s Tigers” was confirmed by several witnesses
appearing before the Trial Chamber17.
21. The events described in the factual basis very clearly show that the Serbian offensive
targeted the non-Serbian population of Br~ko. The statements also relate the organised
9 The facts detailed herein are based on the witness statements and descriptions contained in the factual basis to
which the Defence expressed its agreement [French Provisional Transcript (hereinafter “FPT”) p. 183].
10 Factual basis: Witness F, p. 3; Witness O, p. 2; Witness W, p. 2.
11 Witness F, factual basis, p. 2.
12 Witness W, factual basis, p. 2.
13 Witness O, factual basis, p. 2.
14 Witness P, factual basis, p. 2.
15 The elements presented in the factual basis show that some witnesses stated that these soldiers were from
Serbia. The witnesses heard during the trial often stated that the members of the Serbian forces involved in the
conflict were from Bijeljina.
16 Witness BB, factual basis, p. 2.
17 Factual basis: Witness C, p. 2; Witness P, p. 3; Witness V, p. 2; Witness M, p. 2; Witness J, p. 2; Witness I, p.
3.
6
Case No. IT-95-10-T 14 December 1999
evacuation of the inhabitants of Br~ko, neighbourhood by neighbourhood, to collection
centres18 where the Serbs were separated from the Muslims and Croats. According to
witnesses19, the Serbian men were immediately enrolled in the Serbian forces whilst the
women, children and men over sixty were evacuated by bus to neighbouring regions20. The
Muslim and Croatian men between sixteen and about sixty remained in detention at the
collection centres. Many of them, nearly all Muslims, were then transferred by bus or lorry to
Luka camp, a former port facility. A series of warehouses lay on the left side of a narrow road
which cut through the camp. The detainees were incarcerated in the first two warehouses.
Administrative buildings to the right of the road stood opposite them. The interrogations were
conducted in the first of these buildings.
22. The detainees at Luka camp and also some of those who were rearrested after having
been released were then interned at the Batkovi} detention camp in July 199221. Most of these
prisoners were then exchanged beginning in October 199222.
23. The indictment states that “[o]n about 1 May 1992 Goran Jelisi} […] came to Br~ko
from Bijeljina”. In his guilty plea entered on 29 October 199823, Goran Jelisi} admitted his
guilt for committing thirteen murders, inflicting bodily harm on four persons and having
stolen money from detainees at Luka camp.
III. THE CRIMES ADMITTED TO BY THE ACCUSED IN THE
GUILTY PLEA
24. Goran Jelisi} pleaded guilty to violations of the laws or customs of war (sixteen
counts)24 and crimes against humanity (fifteen counts)25.
18 The main collection centres given were: the Br~ko Mosque, the JNA barracks, the Laser Bus Co. and the
Br~ko police station (SUP).
19 Factual basis, Witness W, p. 2; Witness Q, p. 3.
20 Factual basis, Witness E, p. 3; Witness N, p. 4.
21 Factual basis, Witness V, pp. 7-8; Witness B, p. 6; Witness P, p. 6.
22 Factual basis, Witness C, p. 9; Witness J, p. 13; Witness K, p. 13; Witness N, p. 10.
23 As regards the legal validity of the guilty plea, see Section III below.
24 Twelve of them charge him with murder (counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 32, 38), three with cruel
treatment (counts 30, 36, 40) and one with plunder (count 44).
25 Twelve of them charge him under crimes against humanity with murder (counts 5, 7, 9, 11, 13, 15, 17, 19, 21,
23, 33, 39) and three with inhumane acts (counts 31, 37, 41).
7
Case No. IT-95-10-T 14 December 1999
25. A guilty plea is not in itself a sufficient basis for the conviction of an accused.
Although the Trial Chamber notes that the parties managed to agree on the crime charged, it
is still necessary for the Judges to find something in the elements of the case upon which to
base their conviction both in law and in fact that the accused is indeed guilty of the crime.
26. Pursuant to Rule 62 bis of the Rules, the Judges must verify that:
(i) the guilty plea has been made voluntarily;
(ii) the guilty plea is informed;
(iii) the guilty plea is not equivocal; and
(iv) there is sufficient factual basis for the crime and the accused’s participation in it, either on the
basis of independent indicia or of lack of any material disagreement between the parties about
the facts of the case.
27. In this respect, the Trial Chamber recalls that on 11 March 1998 it ordered an expert
evaluation whose results26 indicated that Goran Jelisi} was fit to understand the nature of the
charges brought against him and to follow the proceedings fully informed. Moreover, the
accused pleaded guilty only after long discussions between the parties either directly or
during hearings. The ensuing Memorandum of Understanding quite clearly presents the result
of these discussions as regards the nature and scope of the crimes committed by the accused.
28. The Trial Chamber must also verify whether the elements presented in the guilty plea
are sufficient to establish the crimes acknowledged.
29. First, it is appropriate to note that the existence of an armed conflict is a condition for
both Article 3 and Article 5 of the Statute to apply27. The Trial Chamber here takes up the
definition of armed conflict used by the Appeals Chamber in the Tadi} Case which states
that:
26 Psychiatric evaluation reports of Dr. Nikola Kmeti} dated 1 April 1998 and of Dr. Elsman dated 15 April
1998; psychological evaluation report of Dr. Herfst dated 16 April 1998; and the forensic report presented by
the psychiatric experts N. Duits and C.M. van der Veen dated 25 November 1998.
27 The Tribunal has noted on several occasions that the armed conflict mentioned in Article 5 of the Statute was
a condition for the jurisdiction of the Tribunal and not a legal ingredient of a crime against humanity,
Judgements of the Appeals Chamber in the case The Prosecutor v. Du{ko Tadi} alias Dule (hereinafter “the
Tadi} case”), IT-94-1-AR72, 2 October 1995 (hereinafter “the Tadi} Appeal Decision”), paragraphs (hereinafter
“paras.”) 140 and 249; and IT-94-1-A, 15 July 1999 (hereinafter “the Tadi} Appeal Judgement”), para. 251.
8
Case No. IT-95-10-T 14 December 1999
an armed conflict exists whenever there is a resort to armed force between States or
protracted armed violence between governmental authorities and organized armed groups
or between such groups within a State28
30. The Defence concurred that the municipality of Br~ko was the theatre for an armed
conflict at the moment the crimes were committed29 and there can be no doubt that the crimes
were linked to this conflict. The Trial Chamber also observes that the facts accepted in
support of the guilty plea30 as recounted in the historical background do not leave any doubt
about the existence of an armed conflict in the region at that time.
31. The legal ingredients of war crimes and crimes against humanity invoked as part of
the armed conflict are as follows.
A. Violations of the laws or customs of war
32. The counts based on Article 3 of the Statute charge the accused with murder, cruel
treatment and plunder.
33. Article 3 of the Statute is a general, residual clause which applies to all violations of
humanitarian law not covered under Articles 2, 4 and 5 of the Statute provided that the rules
concerned are customary31.
34. The charges for murder and cruel treatment are based on Article 3 common to the
Geneva Conventions whose customary character has been noted on several occasions by this
Tribunal and the Criminal Tribunal for Rwanda32 33. As a rule of customary international law,
28 Tadi} Appeal Decision, para. 70.
29 See inter alia the “Addendum to the agreed factual basis for guilty pleas to be entered by Goran Jelisi}”,
confidential, 28 October 1998 (hereinafter “the Addendum”), p. 2.
30 Factual basis, pp. 18-19.
31 Tadi} Appeal Decision, para. 91.
32 International Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations
of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible
for Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January
and 31 December 1994, (hereinafter “the ICTR” or “the Tribunal for Rwanda”).
33 See inter alia the Judgement in the case The Prosecutor v. Zejnil Delali}, Zdravko Muci} alias “Pavo”,
Hazim Deli}, Esad Land`o alias “Zenga”, IT-96-21-T, 16 November 1998 (hereinafter “the ^elebi}i
Judgement”), para. 301 or the Judgement in the case The Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, 2
September 1998, (hereinafter “the Akayesu Judgement”), para. 608.
9
Case No. IT-95-10-T 14 December 1999
Article 3 common to the Geneva Conventions is covered by Article 3 of the Statute as
indicated in the Tadi} Appeal Decision34. Common Article 3 protects “[p]ersons taking no
active part in the hostilities” including persons “placed hors de combat by sickness, wounds,
detention, or any other cause”. Victims of murder, bodily harm and theft, all placed hors de
combat by their detention, are clearly protected persons within the meaning of common
Article 3.
1. Murder
35. Murder is defined as homicide committed with the intention to cause death. The legal
ingredients of the offence as generally recognised in national law may be characterised as
follows:
- the victim is dead,
- as a result of an act of the accused,
- committed with the intention to cause death.35
36. The elements submitted in the Annex to the factual basis clearly confirmed that the
accused was guilty of the murder of the thirteen persons listed in support of the counts.
37. Five of the thirteen murders to which the accused pleaded guilty were perpetrated at
the Br~ko police station on about 7 May 199236 in an always identical manner which was
described by the accused himself37. Having undergone an interrogation at the Br~ko police
station, the victims were placed in the hands of the accused who took them out to an alley
near the police station. The accused executed them, generally with two bullets to the back of
the neck fired from a “Skorpion” pistol fitted with a silencer. A lorry then came to gather up
the bodies. According to the accused, these murders were committed over a period of two
days. Goran Jelisi} admitted killing in this manner:
- an unidentified male (count 4),
34 Tadi} Appeals Decision, para. 87; the ^elebi}i Judgement also considered that Article 3 of the Statute covered
violations of Article 3 common to the Geneva Conventions (para. 298).
35 See the Akayesu Judgement, para. 589.
36 Counts 4 and 5 (murder of an unidentified male), 6 and 7 (murder of Hasan Ja{arevi}), 8 and 9 ( murder of a
young man from [interaj), 10 and 11 (murder of Ahmet Hod`i} or Had`i} alias Papa), 12 and 13 (murder of
Suad).
37 Statement of the accused dated 29 June 1998, Annex II, pp. 5-6, pp. 15-16, p. 29.
10
Case No. IT-95-10-T 14 December 1999
- Hasan Ja{arevi} (count 6),
- a young man from [interaj (count 8),
- Ahmet Hod`i} or Had`i}, alias Papa (count 10), the head of the Muslim SDA political
party,
- a person by the first name of Suad (count 12).
38. Eight of the thirteen murders to which the accused pleaded guilty were perpetrated at
Luka camp. Here again, the murders were always committed in an identical way. First, the
victims underwent an interrogation inside the administrative buildings in which for the most
part the accused participated and during which they were severely beaten, in particular with
truncheons and clubs. Armed with a “Skorpion” pistol fitted with a silencer, the accused
made them go to the corner of the offices where he then executed them with one or two
bullets fired point-blank into the back of the neck or into the back. Some victims were killed
even before they reached the corner of the administrative buildings such that other detainees
actually witnessed the murders. Other detainees were killed with one or two bullets to the
back of the head whilst kneeling over a grate near the office where the interrogations were
held. He then made some detainees carry the body of the victim behind the administrative
offices where the bodies were piled up. The accused admitted to having killed in this manner:
- Jasminko ]umurovi}, alias Ja{}e (count 14),
- Huso and Smajil Zahirovi} (count 16),
- Naza Bukvi} (count 18),
- Muharem Ahmetovi}, father of Naza Bukvi}, killed the day after his daughter died
(count 20),
- Stipo Glavo~evi}, alias Stipo, (count 22),
- Novalija (count 32),
- Adnan Kucalovi} (count 38).
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Case No. IT-95-10-T 14 December 1999
39. Naza Bukvi}38 was very severely beaten before being executed39. It appears that her
executioners wanted to find out where her brother and father, members of the police forces
before the war, were hiding. She was handcuffed to a signpost and then beaten with long
truncheons by several policemen for a whole day40. The victim’s clothes were torn and
covered with blood. That evening, she was brought back to the hangar covered in bruises and
moaning with pain. The accused returned for her the next morning and executed her in the
same fashion as he had his other victims41.
40. One Croatian person, named Stipo Glavo~evi}, also suffered serious bodily harm
before being killed. He arrived at Luka camp on about 9 May 1992 on a truck. His right ear
was cut off and then Goran Jelisi}, accompanied by a guard carrying a sabre, stood the victim
before the detainees under guard in the hangar. Stipo Glavo~evi} begged someone to put him
out of his misery. Goran Jelisi} offered his weapon to the detainees for one of them to
volunteer to do so. No one moved. The guard accompanying the accused hit Stipo Glavo~evi}
with the edge of the sabre. Stipo Glavo~evi} was led outside the hangar and then the accused
went out and killed him in the manner previously described.
2. Cruel Treatment
41. This Trial Chamber shares the opinion of the Trial Chamber in the ^elebi}i case
which defined cruel treatment as “an intentional act or omission […] which causes serious
mental or physical suffering or injury or constitutes a serious attack on human dignity”42.
42. The bodily harm suffered by the brothers Zej}ir and Re{ad Osmi} is the focus of
count 30. The two brothers were first taken to the Br~ko police station where Goran Jelisi}
came looking for them. The accused called them “balijas”43, handcuffed them and punched
them. He then made them get into the boot of a red “Zastava 101” car. The victims were thus
transported to Luka camp. Goran Jelisi} forced them to go into the administrative office in
which were his girlfriend Monika, who was sitting at a desk in front of a typewriter, and her
brother, Kole. The two brothers were made to stand with their backs to the wall and Goran
Jelisi} began to hit them with a club, mostly to the head, the neck and the chest. According to
38 Counts 18 and 19.
39 Witness P, factual basis, p. 6.
40 Witness N, factual basis, pp. 5-6.
41 Witness O, factual basis, p. 6. This witness reports having seen the body of Naza Bukvi} the day after she
died amongst other bodies (p. 10).
42 ^elebi}i Judgement, para. 552.
43 A term which seems to have no direct equivalent in English but which is considered highly offensive.
12
Case No. IT-95-10-T 14 December 1999
one of the brothers, they were allegedly beaten like this for approximately thirty minutes.
Zej}ir Osmi} was then taken to the hangar. Goran Jelisi} continued to beat Re{ad Osmi} who
was no longer able to open his eyes as his eyelids were too swollen. He ended up collapsing
from the blows. Goran Jelisi} kicked him in the chest while he was trying to get back up. The
accused then left. The victim was not beaten while Goran Jelisi} was away. Goran Jelisi}
returned after approximately ten minutes. His shirt was stained with blood. He explained “I
just killed a man from fifty centimetres away. I cut off his ear. He didn’t want to talk, like
you”. The accused then slashed the victim’s two forearms with a knife before again beating
him with a club. Goran Jelisi} next made the victim take out his papers and his money. None
of his identity papers gave any indication that he was Muslim. The accused then became
angry and asked why the two brothers had been brought to Luka. He ordered their immediate
release44.
43. Count 37 relates to the bodily harm suffered by Muhamed Bukvi}. The factual basis
offered in support of the guilty plea shows that this man was very severely beaten by Goran
Jelisi} during an interrogation which he underwent in the administrative offices in Luka
camp. The victim, already covered in bruises from the beating he received the previous day
from another guard at the camp named Kosta, was beaten all over his body by Goran Jelisi}
with a truncheon45. The accused, using his fingers to squeeze the victims cheeks up towards
his eyes, hit him with his truncheon at eye level.
44. The bodily harm inflicted on Amir Didi} is covered in count 40. He was beaten
several times during the interrogations to which he was subjected in the Luka camp offices.
Amir Didi} indicated that he had been beaten by several guards even though the accused was
by far the most active. Goran Jelisi} hit him on one occasion with a fire hose thereby making
him lose consciousness. Amir Didi} was allegedly beaten to the point of being
unrecognisable. He stated that another official at the camp named Kole and the girlfriend of
the accused, Monika, were always present during these beatings46.
45. The Trial Chamber is of the opinion that the assault described in the indictment,
admitted by the accused and moreover confirmed by the elements presented during the trial,
constitute inhumane acts.
44 Factual basis, Witness T p. 2-4; Witness U, p. 2-4.
45 Factual basis, p. 15.
46 Factual basis, p. 16.
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Case No. IT-95-10-T 14 December 1999
3. Plunder
46. Count 44 charges the accused with stealing money from persons detained at Luka
camp, in particular from Hasib Begi}, Zej}ir Osmi}, Enes Zuki} and Armin Drapi}, between
approximately 7 May and 28 May 1992.
47. Pursuant to Article 3(e), the Tribunal has jurisdiction over violations of the laws or
customs of war which:
shall include, but not be limited to:
[…]
(e) plunder of public or private property.
48. Plunder is defined as the fraudulent appropriation of public or private funds belonging
to the enemy or the opposing party perpetrated during an armed conflict and related thereto.
The Trial Chamber hearing the ^elebi}i case recalled that the “prohibition against the
unjustified appropriation of public and private enemy property is general in scope, and
extends both to acts of looting committed by individual soldiers for their private gain, and to
the organized seizure of property undertaken within the framework of a systematic economic
exploitation of occupied territory”47. It thus found that the individual acts of plunder
perpetrated by people motivated by greed might entail individual criminal responsibility on
the part of its perpetrators.
49. The factual basis attached to the guilty plea48 indicates that the accused stole money,
watches, jewellery and other valuables from the detainees upon their arrival at Luka camp by
threatening those who did not hand over all their possessions with death. The accused was
sometimes accompanied by guards or Monika49 but he mostly acted alone. The Trial
Chamber holds that these elements are sufficient to confirm the guilt of the accused on the
charge of plunder.
B. Crimes against humanity
50. Within the terms of Article 5 of the Statute, murder and other inhumane acts specified
in paragraphs (a) and (i) respectively must be characterised as crimes against humanity when
47 ^elebi}i Judgement, para. 590.
48 Factual basis, pp. 17-18.
49 Factual basis, Witness AA, p. 18.
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Case No. IT-95-10-T 14 December 1999
“committed in armed conflict, whether international or internal in character, and directed
against any civilian population”.
1. Underlying offences: murder and other inhumane acts
(a) murder50
51. The Trial Chamber notes firstly that the English text of the Statute uses the term
“murder”. The Trial Chamber observes that in line with the Akayesu case51 of the Tribunal for
Rwanda it is appropriate to adopt this as the accepted term in international custom52. The
Trial Chamber will therefore adopt the definition of murder set out above53. The murders
listed in support of the counts of crimes against humanity are the same as those enounced in
support of the violations of the laws or customs of war and which, as previously seen, have
been established.
(b) other inhumane acts
52. The sub-characterisation “other inhumane acts” specified under Article 5(i) of the
Statute is an generic charge which encompasses a series of crimes. It is appropriate to recall
the position of the Trial Chamber in the ^elebi}i case which stated that the notion of cruel
treatment set out in Article 3 of the Statute “ carries an equivalent meaning […] as inhuman
treatment does in relation to grave breaches of the Geneva Conventions”54. Likewise, the
Trial Chamber considers that the notions of cruel treatment within the meaning of Article 3
and of inhumane treatment set out in Article 5 of the Statute have the same legal meaning.
The facts submitted in support of these counts are moreover the same as those invoked for
cruel treatment under Article 3 which, as the Trial Chamber has already noted, have been
established.
50 The Trial Chamber notes however that the French version of the indictment specifies crimes under Article
5(a) as “meurtre” of the Statute (emphasis added) whilst the Statute uses the term “assassinat”.
51 Akayesu Judgement, para. 588.
52 “Meurtre” is also used in the Statute of the International Criminal Court (Article 7(1)(a)) and in Article 18 of
the Draft Code of Crimes against the Peace and Security of Mankind, Official Document (hereinafter “Off.
Doc.”) of the United Nations Assembly General (hereinafter “UN”), 51st session, A/51/10 (1996) Suppl. No. 10
(hereinafter “Draft Articles of the ILC”).
53 See section III A) 1, above.
54 ^elebi}i Judgement, para. 552.
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Case No. IT-95-10-T 14 December 1999
2. An attack against a civilian population as a general condition of the charge
(a) A widespread or systematic attack
53. Article 5 defines crimes against humanity as crimes “directed against any population”.
Customary international law has interpreted this characteristic, particular to crimes against
humanity, as assuming the existence of a widespread or systematic attack against a civilian
population55. The conditions of scale and “systematicity” are not cumulative as is evidenced
by the case-law of this Tribunal56 and the Tribunal for Rwanda57, the Statute of the
International Criminal Court58 and the works of the International Law Commission
(hereinafter “the ILC”)59. Nevertheless, the criteria which allow one or other of the aspects to
be established partially overlap. The existence of an acknowledged policy targeting a
particular community60, the establishment of parallel institutions meant to implement this
policy, the involvement of high-level political or military authorities, the employment of
considerable financial, military or other resources and the scale or the repeated, unchanging
and continuous nature of the violence committed against a particular civilian population are
among the factors which may demonstrate the widespread or systematic nature of an attack.
(b) against a civilian population
54. It follows from the letter and the spirit of Article 5 that the term “civilian population”
must be interpreted broadly. The text states that the acts are directed against “any” civilian
population. In addition, reference to a civilian population would seek to place the emphasis
more on the collective aspect of the crime than on the status of the victims61. The
Commission of Experts formed pursuant to Security Council resolution 780 (hereinafter “the
55 See, in particular, the report of the Secretary-General pursuant to Security Council resolution 808 (S/25704, 3
May 1993, para. 48). Article 3 of the Statute of the International Criminal Tribunal for Rwanda and Article 7 of
the Statute of the International Criminal Court also state this element explicitly. The widespread or systematic
attack was also specified as a legal ingredient of a crime against humanity by the Appeals Chamber of the
Tribunal in the Tadi} Appeal Judgement, para. 648. The Legal Committee of the United Nations War Crimes
Commission also adopted this position (History of the U.N. War Crimes Commission, p. 179).
56 In particular, in the cases The Prosecutor v. Miroslav Radi} and Veselin [ljivan}anin (Case No. IT-95-13-R61
of 3 April 1996, para. 30) and The Prosecutor v. Du{ko Tadi} alias “Dule” (Case No. IT-94-1-T of 7 May 1997,
hereinafter “the Tadi} Judgement”, paras. 646-647).
57 In particular, in the Akayesu Judgement (para. 579) and in The Prosecutor v. Clément Kayishema and Obed
Ruzindana, Case No. ICTR-95-1-T, 21 May 1999, para. 123 (hereinafter “the Kayishema case”).
58 Article 7, paragraph 1.
59 Draft Articles of the ILC, pp. 94-95.
60 Expressed, in particular, in the writings and speeches of political leaders and media propaganda.
61 In the Tadi} Judgement, the Trial Chamber noted that “[i]t is the desire to exclude isolated or random acts
from the notion of crimes against humanity that led to the inclusion of the requirement that the acts must be
directed against a civilian 'population'” (para. 648).
16
Case No. IT-95-10-T 14 December 1999
Commission of Experts”)62 considered furthermore that the civilian population within the
meaning of Article 5 of the Statute must include all those persons bearing or having borne
arms who had not, strictly speaking, been involved in military activities. The Trial Chamber
therefore adjudges that the notion of civilian population as used in Article 5 of the Statute
includes, in addition to civilians in the strict sense, all persons placed hors de combat when
the crime is perpetrated. Moreover, in accordance with the case-law of this Tribunal and the
Tribunal for Rwanda63, the Trial Chamber deems that “[t]he presence within the civilian
population of individuals who do not come within the definition of civilians does not deprive
the population of its civilian character”64.
55. The elements presented in support of the guilty plea as summarised in the historical
background65 do not leave any doubt as to the widespread and systematic nature of the attack
against the Muslim and Croatian civilian population in the municipality of Br~ko.
3. An attack in which an accused participates in full knowledge of the significance of his
acts
56. The accused must also be aware that the underlying crime which he is committing
forms part of the widespread and systematic attack.
57. The accused has not denied that his acts formed part of the attack by the Serbian
forces against the non-Serbian population of Br~ko66. The Trial Chamber moreover notes
that, despite remaining uncertainties regarding his exact rank and position, the accused was
part of the Serbian forces that took part in the operation conducted against the non-Serbian
civilian population in Br~ko. It was indeed in anticipation and in the service of the attack that
the accused, who comes from Bijeljina, was given police duties in the municipality of Br~ko.
As one of the active participants in this attack, Goran Jelisi} must have known of the
widespread and systematic nature of the attack against the non-Serbian population of Br~ko.
62 Final Report of the Commission of Experts established pursuant to Security Council resolution 780 (1992),
UN Off. Doc., S/1994/674, para. 78.
63 Tadi} Judgement, para. 639. The Tribunal for Rwanda took the same position in the Akayesu case
(Judgement, para. 582) and Kayishema case (Judgement, para. 128).
64 This case-law is based upon Article 50(3) of the first Protocol additional to the Geneva Conventions of 12
August 1949 Relating to the Protection of Victims in International Armed Conflicts.
65 See section II above.
66 See the “Addendum”, p. 3.
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Case No. IT-95-10-T 14 December 1999
C. Conclusion
58. In conclusion, the Trial Chamber declares Goran Jelisi} guilty on thirty-one counts of
violations of the laws or customs of war and crimes against humanity.
IV. GENOCIDE
59. Within the terms of Article 4(2) of the Statute, genocide is defined as:
any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
60. Article 4 of the Statute takes up word for word the provisions of the Convention on
the Prevention and Punishment of the Crime of Genocide67 (hereinafter “the Convention”),
adopted on 9 December 194868 and in force as of 12 January 195169. The concepts of
genocide and crimes against humanity came about70 as a reaction to the horrors committed by
the Nazis during the Second World War - genocide being more particularly associated with
the holocaust. Subsequently, the Convention has become one of the most widely accepted
67 Articles II and III.
68 The draft Convention was approved by a General Assembly plenary session with 55 votes for, none against
and no abstentions. The Convention was immediately signed by 20 States.
69 That is, pursuant to Article XIII of the Convention, 90 days after the filing of the twentieth ratification
instrument. Yugoslavia was amongst the first States to ratify the Convention on 29 August 1950.
70 The concept of crimes against humanity first appeared in the Charters and Statutes of the International
Military Tribunals established by the London Agreement of 1945 and by the Declaration of the Allied Supreme
Commander in the Far-East of 1946. Genocide, a term created by Raphaël Lemkin in 1944 (Axis Rules in
Occupied Europe, Washington D.C., Carnegie Endowment, 1944), was first officially consecrated in the
indictment brought against the major German war criminals of 8 April 1945.
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Case No. IT-95-10-T 14 December 1999
international instruments relating to human rights71. There can be absolutely no doubt that its
provisions fall under customary international law as, moreover, noted by the International
Court of Justice as early as 1951. The Court went even further and placed the crime on the
level of jus cogens72 because of its extreme gravity. It thus defined genocide as:
“a crime under international law” involving a denial of the right of existence of entire human groups, a
denial which shocks the conscience of mankind and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the United Nations … The first consequence arising
from this conception is that the principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without any conventional obligation. A
second consequence is the universal character both of the condemnation of genocide and of the
cooperation required “in order to liberate mankind from such an odious scourge” (Preamble to the
Convention).73
61. In accordance with the principle nullum crimen sine lege74, the Trial Chamber means
to examine the legal ingredients of the crime of genocide taking into account only those
which beyond all doubt form part of customary international law. Several sources have been
considered in this respect. First, the Trial Chamber takes note of the Convention on whose
incontestable customary value it has already remarked. It interprets the Convention’s terms in
accordance with the general rules of interpretation of treaties set out in Articles 31 and 32 of
the Vienna Convention on the Law of Treaties75. In addition to the normal meaning of its
provisions, the Trial Chamber also considered the object and purpose of the Convention76 and
could also refer to the preparatory work and circumstances associated with the Convention’s
71 The Convention was ratified by 129 States on 1 October 1999.
72 Article 53 of the Vienna Convention on the Law of Treaties defines a peremptory norm of general
international law as “a norm accepted and recognized by the international community of States as a whole as a
norm from which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character”.
73 ICJ, Case of the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Rec. 1951, p. 23. The Court reaffirmed its position in the case involving the Barcelona Traction, Light and
Power Co.(ICJ, Reports 1970, p. 32) by indicating that given the importance of the rights at issue, certain areas
exist such as the prevention and punishment of the crime of genocide for which States have obligations towards
the entire international community (erga omnes obligations) and not only to another State: the erga omnes
obligations in contemporary international law derive, for instance, from the prohibition of acts of aggression and
genocide.
74 A principle recalled by the Secretary-General in his report pursuant to paragraph 2 of Security Council
resolution 808 (1993) of 3 May 1993 (UN Off. Doc. S/25704, para. 34): “application of the principle nullum
crimen sine lege requires that the international tribunal should apply rules of international humanitarian law
which are beyond any doubt part of customary law so that the problem of adherence of some but not all States
to specific conventions does not arise”.
75 Vienna Convention on the Law of Treaties of 23 May 1969, in force as of 27 January 1980.
76 Article 31 of the Vienna Convention: “1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose”.
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Case No. IT-95-10-T 14 December 1999
coming into being77. The Trial Chamber also took account of subsequent practice grounded
upon the Convention. Special significance was attached to the Judgements rendered by the
Tribunal for Rwanda78, in particular to the Akayesu and Kayishema cases which constitute to
date the only existing international case-law on the issue79. The practice of States, notably
through their national courts80, and the work of international authorities in this field 81 have
also been taken into account. The ILC report commenting upon the “Articles of the Draft
Code of Crimes Against the Peace and Security of Mankind”82 which sets out to transcribe
the customary law on the issue appeared especially useful.
62. Genocide is characterised by two legal ingredients according to the terms of Article 4
of the Statute:
- the material element of the offence, constituted by one or several acts enumerated in
paragraph 2 of Article 4;
- the mens rea of the offence, consisting of the special intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such.
77 Article 32 of the Vienna Convention on the Law of Treaties: “Recourse may be had to supplementary means
of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable”.
78 The Tribunal for Rwanda has jurisdiction to judge those persons presumed responsible for the crime of
genocide pursuant to Article 2 of its Statute which also reproduces Articles II and III of the Convention on
genocide.
79 The Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide was brought before the International Court of Justice in 1993 by Bosnia-Herzegovina against the
Federal Republic of Yugoslavia (Serbia and Montenegro) pursuant to Article IX of the Convention. In this case,
the Court rendered two orders (Request for the indication of provisional measures dated 8 April 1993, Reports
1993 p. 1; Further requests for the indication of provisional measures dated 13 September 1993, Reports 1993,
p. 325) and a decision on its jurisdiction (Decision dated 11 July 1996, preliminary objections, Reports 1996, p.
595). However, it has not yet ruled on the merits of the case.
80 Of the judgements rendered in this field by national courts, the following may inter alia be noted: the
Judgement rendered on 29 May 1962 by the Supreme Court of Israel against Adolf Eichmann for complicity in
a “crime against the Jewish people”, a crime defined the same as genocide but whose victims are exclusively
Jewish; the Judgement rendered by the courts in Equatorial Guinea against the tyrant Macias and the Judgement
rendered in absentia against Pol Pot and his deputy Prime Minister by a revolutionary people’s tribunal set up by
the Vietnamese authorities following their invasion of Cambodia. Proceedings were also initiated in Ethiopia
against 70 representatives of the Mengistu Haile Mariam regime which held power from 1974 to 1991. Two
Judgements relating to Serbian nationals accused of genocide or complicity in genocide were also recently
rendered by the German courts (Appeals Court of Bavaria, Novislav Djaji} case, 23 May 1997, 3 St 20/96;
Düsseldorf Supreme Court, Nikola Jorgi} case, 26 September 1997, 2 StE 8/96).
81 Particular attention should be paid to the two reports submitted by the United Nations Subcommittee for antidiscriminatory
measures and the protection of minorities by Nicodème Ruhashyankiko in 1978 (“Study of the
question of the prevention and punishment of the crime of genocide” E/CN.4/Sub.2/416, 4 July 1978) and by
Benjamin Whitaker in 1985 (“Revised and updated report on the question of the prevention and punishment of
the crime of genocide”, E/CN.4/Sub.2/1985/6, 2 July 1985).
82 Draft Articles of the ILC, in particular pp. 85-93.
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Case No. IT-95-10-T 14 December 1999
A. The material element of the offence: the murder of members of a group83
63. The murder84 of members of a group constitutes the crime evoked by the Prosecutor
in support of the genocide charge (Article 4(2)(a) of the Statute).
64. In her pre-trial brief, the Prosecutor alleges that throughout the time Luka operated,
the Serbian authorities, including the accused, killed hundreds of Muslim and Croatian
detainees85. The number of the victims would thus be much higher than the figure given for
only those crimes to which the accused pleaded guilty86.
65. Although the Trial Chamber is not in a position to establish the precise number of
victims ascribable to Goran Jelisi} for the period in the indictment, it notes that, in this
instance, the material element of the crime of genocide has been satisfied. Consequently, the
Trial Chamber must evaluate whether the intent of the accused was such that his acts must be
characterised as genocide.
B. The mens rea of the offence: the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group
66. It is in fact the mens rea which gives genocide its speciality and distinguishes it from
an ordinary crime and other crimes against international humanitarian law. The underlying
crime or crimes must be characterised as genocide when committed with the intent to destroy,
in whole or in part, a national, ethnical, racial or religious group as such. Stated otherwise,
“[t]he prohibited act must be committed against an individual because of his membership in a
particular group and as an incremental step in the overall objective of destroying the
group”87. Two elements which may therefore be drawn from the special intent are:
- that the victims belonged to an identified group;
83 In the instance, the group was defined by the Prosecution in the charge as being Muslim. For the legal
discussion on the notion of group see B) 1) b).
84 In the Akayesu case, the Trial Chamber remarked that the term “meurtre” used in the French text was more
exact and favourable term for the accused than “killing” used in the English text of the Statute. It selected one of
the two definitions of murder in accordance with the general principles of criminal law by which the
interpretation which most benefits the accused must be chosen (Judgement, para. 501).
85 Prosecutor’s pre-trial brief of 19 November 1998, para. 1.7.
86 Moreover, Goran Jelisi} expressly admitted that he was guilty of three other murders not included in the
indictment, FPT p. 81.
87 ILC Draft Articles, p. 88.
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Case No. IT-95-10-T 14 December 1999
- that the alleged perpetrator must have committed his crimes as part of a wider plan to
destroy the group as such.
1. Acts committed against victims because of their membership in a national, ethnical, racial
or religious group
(a) The discriminatory nature of the acts
67. The special intent which characterises genocide supposes that the alleged perpetrator
of the crime selects his victims because they are part of a group which he is seeking to
destroy. Where the goal of the perpetrator or perpetrators of the crime is to destroy all or part
of a group, it is the “membership of the individual in a particular group rather than the
identity of the individual that is the decisive criterion in determining the immediate victims of
the crime of genocide”88.
68. From this point of view, genocide is closely related to the crime of persecution, one of
the forms of crimes against humanity set forth in Article 5 of the Statute. The analyses of the
Appeals Chamber89 and the Trial Chamber90 in the Tadi} case point out that the perpetrator of
a crime of persecution, which covers bodily harm including murder91, also chooses his
victims because they belong to a specific human group. As previously recognised by an
Israeli District Court in the Eichmann92 case and the Criminal Tribunal for Rwanda in the
Kayishema93 case, a crime characterised as genocide constitutes, of itself, crimes against
humanity within the meaning of persecution.
88 ILC Draft Articles, p. 88; the same comment was made by Pieter N. Drost, based on the preparatory works of
the Convention, in The Crime of State, Genocide, A.W. Sythoff, Leyden, 1959, p. 124: “It is an externally
perceptible quality or characteristic which the victim has in common with the other members of the group,
which makes him distinct from the rest of society in the criminal mind of his attacker and which for that very
reason causes the attacker to commit the crime against such marked and indicated individual”(emphasis added).
89 Tadi} Appeals Judgement, para. 305.
90 Tadi} Judgement, para. 697: “what is necessary is some form of discrimination that is intended to be and
results in an infringement of an individual’s fundamental rights. Additionally, this discrimination must be on
specific grounds, namely race, religion or politics”.
91 See in particular the Tadi} Judgement, para, 717.
92 The Israeli District Court noted that “All [the accused] did with the object of exterminating the Jewish people
also amounts ipso facto to persecution of Jews on national, racial, religious and political grounds” (Attorney
General of Israel v. Eichmann, Judgement of the District Court, in E. Lauterpacht, International Law Reports,
vol. 36, part VI, para. 201, p. 239 (1968)).
93 Judgement, para. 578.
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(b) Groups protected by Article 4 of the Statute
69. Article 4 of the Statute protects victims belonging to a national, ethnical, racial or
religious group and excludes members of political groups. The preparatory work of the
Convention demonstrates that a wish was expressed to limit the field of application of the
Convention to protecting “stable” groups objectively defined and to which individuals belong
regardless of their own desires94.
70. Although the objective determination of a religious group still remains possible, to
attempt to define a national, ethnical or racial group today using objective and scientifically
irreproachable criteria would be a perilous exercise whose result would not necessarily
correspond to the perception of the persons concerned by such categorisation. Therefore, it is
more appropriate to evaluate the status of a national, ethnical or racial group from the point of
view of those persons who wish to single that group out from the rest of the community. The
Trial Chamber consequently elects to evaluate membership in a national, ethnical or racial
group using a subjective criterion. It is the stigmatisation of a group as a distinct national,
ethnical or racial unit by the community which allows it to be determined whether a targeted
population constitutes a national, ethnical or racial group in the eyes of the alleged
perpetrators95. This position corresponds to that adopted by the Trial Chamber in its Review
of the Indictment Pursuant to Article 61 filed in the Nikoli} case96.
71. A group may be stigmatised in this manner by way of positive or negative criteria. A
“positive approach” would consist of the perpetrators of the crime distinguishing a group by
the characteristics which they deem to be particular to a national, ethnical, racial or religious
group. A “negative approach” would consist of identifying individuals as not being part of
the group to which the perpetrators of the crime consider that they themselves belong and
which to them displays specific national, ethnical, racial or religious characteristics. Thereby,
all individuals thus rejected would, by exclusion, make up a distinct group. The Trial
94 Not retained at the draft stage when submitted to the United Nations General Assembly (E/447) because of
their lack of permanence, political groups were included under protected groups in the ad hoc committee’s draft
document by a narrow majority (4 votes to 3; UN Off. Doc. E/794 of 24 May 1948 pp. 13-14). The reference to
political groups was however again rejected in the final draft of the Assembly General’s Sixth Committee (see
in particular the commentaries of the Brazilian and Venezuelan representatives expressing their concern about
the fact that only “permanent” groups were specified, A/C.6/SR 69, p. 5).
95 Here, the Trial Chamber follows in part the position taken by the International Criminal Tribunal for Rwanda
which stated that “an ethnic group is one whose members share a common language and culture; or a group
which distinguishes itself, as such (self-identification); or, a group identified as such by others, including the
perpetrators of the crimes (identification by others)” in the Kayishema case (Judgement, para. 98).
96 Review in the case The Prosecutor v. Nikoli} (hereinafter “the Nikoli} Review”), 20 October 1995, para. 27,
as part of the appraisal of the crime against humanity “persecution”: “the civilian population subjected to such
23
Case No. IT-95-10-T 14 December 1999
Chamber concurs here with the opinion already expressed by the Commission of Experts97
and deems that it is consonant with the object and the purpose of the Convention to consider
that its provisions also protect groups defined by exclusion where they have been stigmatised
by the perpetrators of the act in this way.
72. In this case, it is the positive approach towards a group which has been advanced by
the Prosecution. The genocide charge states that the murders committed by the accused
targeted the Bosnian Muslim population.
(c) Proof of discriminatory intent
73. In seeking proof of discriminatory intent, the Trial Chamber takes account of not only
the general context in which the acts of the accused fit but also, in particular, his statements
and deeds. The Trial Chamber deems, moreover, that an individual knowingly acting against
the backdrop of the widespread and systematic violence being committed against only one
specific group could not reasonably deny that he chose his victims discriminatorily.
74. The testimony heard during the trial98 shows that the offensive against the civilian
population of Br~ko, of which the acts of Goran Jelisi} formed part, was directed mainly
against the Muslim population. A great majority of the persons detained in the collection
centres and at Luka camp were Muslim99. During interrogations, the Muslims were
questioned about their possible involvement in resistance movements or political groups100.
Most of the victims who were killed during the conflict in Br~ko were Muslims101.
discrimination was identified by the perpetrators of the discriminatory measures, principally by its religious
characteristics” (emphasis added).
97 Final Report of the Commission of Experts, op. cit., para. 96, p. 25: “If there are several or more than one
victim groups, and each group as such is protected, it may be within the spirit and purpose of the Convention to
consider all the victim groups as a larger entity. The case being, for example, that there is evidence that group A
wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national,
ethnic, racial or religious group A. In a sense, group A has defined a pluralistic non-A group using national,
ethnic, racial and religious criteria for the definition. It seems relevant to analyse the fate of the non-A group
along similar lines as if the non-A group had been homogenous”.
98 In this regard, the Trial Chamber notes that several witnesses (Q, B, N, E) whose statements are included in
the factual basis also testified before the Trial Chamber during the genocide trial.
99 Witness B, FPT p. 159; Witness I, FPT p. 686; Witness N, FPT pp. 1115-1116.
100 Witness D, FPT pp. 525-526.
101 See exhibit 12. The witness Mustafa Rami}, former mayor of Br~ko, alleged that about 2000 of the 3000
Muslims who supposedly remained in Br~ko after the destruction of the bridges were killed or disappeared (FPT
pp.1318-1327).
According to the prior statement of witness John Ralston, in 1991 the town of Br~ko had a population of 41 046
of which 55.5% were Muslims, 19.9% Serbs, 6.9% Croats and 17.5% others. Muslims also accounted for the
majority of the population throughout most of the Br~ko municipality.
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Case No. IT-95-10-T 14 December 1999
75. The words and deeds of the accused demonstrate that he was not only perfectly aware
of the discriminatory nature of the operation but also that he fully supported it. It appears
from the evidence submitted to the Trial Chamber that a large majority of the persons whom
Goran Jelisi} admitted having beaten and executed were Muslim. Additionally, many of the
elements showed how Goran Jelisi} made scornful and discriminatory remarks about the
Muslim population. Often, Goran Jelisi} insulted the Muslims by calling them “balijas” or
“Turks”102. Of one detainee whom he had just hit, Goran Jelisi} allegedly said that he must be
have been mad to dirty his hands with a “balija” before then executing him103.
76. It also appears from the testimony that Goran Jelisi} allegedly humiliated the Muslims
by forcing them to sing Serbian songs. At the police station, he supposedly made them line up
facing the Serbian flag and sing104.
77. The Trial Chamber concludes that in this case the discriminatory intent has been
proved.
2. The intent to destroy, in whole or in part, the group as such
78. In examining the intentionality of an attack against a group, the Trial Chamber will
first consider the different concepts of the notion of destruction of a group as such before then
reviewing the degree of intent required for a crime to be constituted. In other words, the Trial
Chamber will have to verify that there was both an intentional attack against a group and an
intention upon the part of the accused to participate in or carry out this attack. Indeed, the
intention necessary for the commission of a crime of genocide may not be presumed even in
the case where the existence of a group is at least in part threatened. The Trial Chamber must
verify whether the accused had the “special” intention which, beyond the discrimination of
the crimes he commits, characterises his intent to destroy the discriminated group as such, at
least in part.
(a) Definition
79. Apart from its discriminatory character, the underlying crime is also characterised by
the fact that it is part of a wider plan to destroy, in whole or in part, the group as such. As
indicated by the ILC, “the intention must be to destroy the group “as such”, meaning as a
102 Witness A, FPT p. 45; Witness F, FPT p. 248.
103 Witness F, FPT p. 248.
104 Witness Q, FPT pp. 1203-1227.
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Case No. IT-95-10-T 14 December 1999
separate and distinct entity, and not merely some individuals because of their membership in
a particular group”.105 By killing an individual member of the targeted group, the perpetrator
does not thereby only manifest his hatred of the group to which his victim belongs but also
knowingly commits this act as part of a wider-ranging intention to destroy the national,
ethnical, racial or religious group of which the victim is a member. The Tribunal for Rwanda
notes that “[t]he perpetration of the act charged therefore extends beyond its actual
commission, for example, the murder of a particular individual, for the realisation of an
ulterior motive, which is to destroy, in whole or in part, the group of which the individual is
just one element”106. Genocide therefore differs from the crime of persecution in which the
perpetrator chooses his victims because they belong to a specific community but does not
necessarily seek to destroy the community as such107.
80. Notwithstanding this, it is recognised that the destruction sought need not be directed
at the whole group which, moreover, is clear from the letter of Article 4 of the Statute. The
ILC also states that “[i]t is not necessary to intend to achieve the complete annihilation of a
group from every corner of the globe”108. The question which then arises is what proportion
of the group is marked for destruction and beyond what threshold could the crime be
qualified as genocide? In particular, the Trial Chamber will have to verify whether genocide
may be committed within a restricted geographical zone.
81. The Prosecution accepts that the phrase “in whole or in part” must be understood to
mean the destruction of a significant portion of the group from either a quantitative or
qualitative standpoint. The intention demonstrated by the accused to destroy a part of the
group would therefore have to affect either a major part of the group or a representative
fraction thereof, such as its leaders109.
82. Given the goal of the Convention to deal with mass crimes, it is widely acknowledged
that the intention to destroy must target at least a substantial part of the group110. The
105 ILC Draft Articles, p. 88.
106 Akayesu Judgement, para. 522.
107 Stefan Glaser, Droit international pénal conventionnel, Bruylant, Brussels, 1970, p. 107. Professor Pella also
uses this criterion to distinguish the two crimes in his “Memorandum concerning a draft code of offences against
the peace and security of mankind” submitted to the ILC during its second session (UN Off. Doc., A/CN.4/39, 4
November 1950, para. 141, pp. 188-189).
108 ILC Draft Articles, p. 89.
109 Prosecutor’s pre-trial brief, para. 4.3, pp. 12-13.
110 The ILC Draft Articles just as Nehemia Robinson’s commentary indicate that the perpetrators of genocide
must be seeking to destroy a “substantial part” of the group (ILC Draft Articles, p. 89; Nehemia Robinson, The
Genocide Convention, New York, 1949 (1st edition), 1960, p. 63); the U. S. Senate’s “understanding” of Article
II of the Convention also states that the U.S. interprets “partial destruction” as the destruction of a “substantial
26
Case No. IT-95-10-T 14 December 1999
Tribunal for Rwanda appears to go even further by demanding that the accused have the
intention of destroying a “considerable” number of individual members of a group111. In a
letter addressed to the United States Senate during the debate on Article II of the Convention
on genocide, Raphaël Lemkin explained in the same way that the intent to destroy “in part”
must be interpreted as an desire for destruction which “must be of a substantial nature […] so
as to affect the entirety”112. A targeted part of a group would be classed as substantial either
because the intent sought to harm a large majority of the group in question or the most
representative members of the targeted community. The Commission of Experts specified
that “[i]f essentially the total leadership of a group is targeted, it could also amount to
genocide. Such leadership includes political and administrative leaders, religious leaders,
academics and intellectuals, business leaders and others – the totality per se may be a strong
indication of genocide regardless of the actual numbers killed. A corroborating argument will
be the fate of the rest of the group. The character of the attack on the leadership must be
viewed in the context of the fate or what happened to the rest of the group. If a group has its
leadership exterminated, and at the same time or in the wake of that, has a relatively large
number of the members of the group killed or subjected to other heinous acts, for example
deported on a large scale or forced to flee, the cluster of violations ought to be considered in
its entirety in order to interpret the provisions of the Convention in a spirit consistent with its
purpose”113. Genocidal intent may therefore be manifest in two forms. It may consist of
desiring the extermination of a very large number of the members of the group, in which case
it would constitute an intention to destroy a group en masse. However, it may also consist of
the desired destruction of a more limited number of persons selected for the impact that their
disappearance would have upon the survival of the group as such. This would then constitute
an intention to destroy the group “selectively”. The Prosecutor did not actually choose
between these two options114.
83. The Prosecution contends, however, that the geographical zone in which an attempt to
eliminate the group is made may be limited to the size of a region or even a municipality115.
part” of the group (Genocide Convention, Report of the Committee on Foreign Relations, U.S. Senate, 18 July
1981, p. 22).
111 Kayishema Judgement, para. 97.
112 Raphaël Lemkin in Executive Session of the Senate Foreign Relations Committee, Historical Series, 1976, p.
370. In the same vein, the implementing legislation proposed by the Nixon and Carter administrations stated that
“'substantial part' means a part of a group of such numerical significance that the destruction or loss of that part
would cause the destruction of the group as a viable entity”, S EXEC. REP. No. 23, 94th Cong., 2nd Sess.
(1976), pp. 34-35.
113 Report of the Commission of Experts, para. 94 (emphasis added).
114 For the discussion of this point, see below.
115 Prosecutor’s pre-trial brief, para. 4.4, pp. 13-14.
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Case No. IT-95-10-T 14 December 1999
The Trial Chamber notes that it is accepted that genocide may be perpetrated in a limited
geographic zone116. Furthermore, the United Nations General Assembly did not hesitate in
characterising the massacres at Sabra and Shatila117 as genocide, even if it is appropriate to
look upon this evaluation with caution due to its undoubtedly being more of a political
assessment than a legal one. Moreover, the Trial Chamber adopted a similar position in its
Review of the Indictment Pursuant to Article 61 filed in the Nikoli} case. In this case, the
Trial Chamber deemed that it was possible to base the charge of genocide on events which
occurred only in the region of Vlasenica118. In view of the object and goal of the Convention
and the subsequent interpretation thereof, the Trial Chamber thus finds that international
custom admits the characterisation of genocide even when the exterminatory intent only
extends to a limited geographic zone.
(b) The degree of intention required
84. The accused is charged with committing genocide or aiding and abetting therein.
These charges are grounded on Article 7(1) of the Statute according to which any person who
has either committed a crime or instigated, ordered or otherwise aided and abetted in the
commission of the crime without having himself directly committed it must be held
responsible for the crime.
85. The Prosecutor proposes a broad understanding of the intention required under Article
7(1) of the Statute and submits that an accused need not seek the destruction in whole or in
part of a group. Instead, she claims that it suffices that he knows that his acts will inevitably,
or even only probably, result in the destruction of the group in question119. Furthermore, she
states that premeditation is not required120.
86. The Trial Chamber notes that, contrary to the Prosecutor’s contention, the Tribunal
for Rwanda in the Akayesu case considered that any person accused of genocide for having
committed, executed or even only aided and abetted must have had “the specific intent to
commit genocide”, defined as “the intent to destroy, in whole or in part, a national, ethnical,
116 Nehemia Robinson states that “the intent to destroy a multitude of persons of the same group must be
classified as Genocide even if these persons constitute only a part of a group either within a country or within a
region or within a single community”, (emphasis added) p. 63.
117 UN Off. Doc. AG/Res. 37/ 123 D (16 December 1982), para. 2.
118 Nikoli} Review, para. 34.
119 Prosecutor’s pre-trial brief, 19 November 1998, para. 3.1, pp. 7-8.
120 Prosecutor’s pre-trial brief, 19 November 1998, para. 3.2, p. 8.
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Case No. IT-95-10-T 14 December 1999
racial or religious group as such”121. The Akayesu Trial Chamber found that an accused could
not be found guilty of genocide if he himself did not share the goal of destroying in part or in
whole a group even if he knew that he was contributing to or through his acts might be
contributing to the partial or total destruction of a group. It declared that such an individual
must be convicted of complicity in genocide122.
87. Before even ruling on the level of intention required, the Trial Chamber must first
verify whether an act of genocide has been committed as the accused cannot be found guilty
of having aided and abetted in a crime of genocide unless that crime has been established.
(i) The intention to commit “all-inclusive” genocide
88. As has already been seen, the collection of the population in centres located at
different points around the town, their subsequent transfer to detention camps and the
interrogations always conducted in an identical manner over a short period of time
demonstrate that the operation launched by the Serbian forces against the Muslim population
of Br~ko was organised. Consequently, whether this organisation meant to destroy in whole
or in part the Muslim group must be established.
89. The Trial Chamber notes in this regard that one witness related how a Serbian friend
had told him that he had planned for only 20% of the Muslims to remain123. Another witness
declared that he was told during an interrogation at the mosque that 5% of the Muslims and
Croats would be allowed to live but that this 5% would have to perform back-breaking
work124. Some witnesses even declared that on several occasions during their time at Luka
they had carried up to twenty bodies125.
90. During the exhumations which took place in summer 1997, approximately 66 bodies
were discovered scattered about in four mass graves. The positions of the bodies indicate that
121 Akayesu Judgement, para. 485.
122 Akayesu Judgement, paras. 544-547.
123 Witness J, FPT p. 830.
124 Witness I, FPT pp. 687-758.
125 Witness L, FPT p. 965; Witness D, FPT p.445. Allegedly, these bodies were then loaded into a refrigerated
lorry (Witness A, FPT p. 5; Witness J, FPT p. 773), while others were thrown into the Sava River (Witness B,
FPT pp. 136-139).
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Case No. IT-95-10-T 14 December 1999
they were piled haphazardly into the graves126. Most were the bodies of males of fighting age
and most of them had been shot dead127.
91. The Prosecutor also tendered lists128 of names of persons who were reputedly killed at
the time of the acts ascribed to the accused129. In particular, the Prosecutor submitted a list of
thirty-nine persons who for the most part were either members of the local administrative or
political authorities, well-known figures in town, members of the Muslim Youth Association,
members of the SDA or simply SDA sympathisers130.
92. One witness131 described how the police detectives who interrogated the detainees at
Luka camp appeared to decide which detainees were to be executed upon the basis of a
document. Another detainee132 claimed at the hearing to have seen a list of numbered names
headed “people to execute” in one of the administrative building offices in Luka camp.
According to this witness, about fifty names appeared on the list and they were mostly
Muslim.
93. However, the reason for being on these lists and how they were compiled is not clear.
Nor has it been established that the accused relied on such a list in carrying out the
executions. One witness stated inter alia that Goran Jelisi} seemed to select the names of
persons at random from a list133. Other witnesses suggested that the accused himself picked
out his victims from those in the hangar. In no manner has it been established that the lists
seen by Witness K or by Witness R at Luka camp correspond to that submitted by the
Prosecutor134. It is not therefore possible to conclude beyond all reasonable doubt that the
choice of victims arose from a precise logic to destroy the most representative figures of the
Muslim community in Br~ko to the point of threatening the survival of that community135.
126 Testimony of Mr. Wright, FPT p. 1356, exhibit 60.
127 Testimony of Mr. Albert Charles Hunt, FPT pp. 1363 and 1369.
128 These lists name just over a hundred people who died. The first list (exhibit 12) was compiled using
documents supplied by Republika Srpska which established a list of persons whose bodies were reportedly
found in a mass grave. The second list (exhibit 13) was compiled by witness Mustafa Rami}. It appears from
these exhibits that about sixty persons were killed in Br~ko during May 1992 (of a total Muslim population of
about 22 000 people – see note 101).
129 Exhibits 12 and 13.
130 Exhibit 13.
131 Witness L, FPT pp. 945-948.
132 Witness K, FPT pp. 840-903 and 980 to 1026.
133 Witness R, FPT pp. 1384-1476. The existence of lists was also remarked upon by Witness J, FPT p. 830.
134 Exhibit 13.
135 As indicated above, the figures provided by a prosecution witness put the Muslim population at over 22 000
in the town of Br~ko alone.
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Case No. IT-95-10-T 14 December 1999
94. In addition, it has been established that many detainees at Luka camp had a laissezpasser
136. According to Witness F, eighty to a hundred persons out of a total of six to seven
hundred detainees were reputedly released in this way on the day they arrived, 8 May 1992.
Other laissez-passer were reportedly issued subsequently. Allegedly, the detainees were also
exchanged as of 19 May 1992137.
95. It has also not been established beyond all reasonable doubt whether the accused
killed at Luka camp under orders. Goran Jelisi} allegedly presented himself to the detainees
as the Luka camp commander138. The detainees believed that he was the chief or at least a
person in authority because he gave orders to the soldiers at the camp139 who appeared to be
afraid of him140. The Trial Chamber does not doubt that the accused exercised a de facto
authority over the staff and detainees at the camp.
96. However, no element establishing the chain of command within which he operated
has been presented. In particular, no clear information has been provided concerning the
authority to which he answered. Some testimony did however make reference to a man who
supposedly presented himself as being Jelisi}’s superior141. This commander142, who wore
the uniform of the Yugoslav National Army (JNA), supposedly came to Luka camp on about
16 or 18 May 1992 with other military personnel and reported that an order had been given
for the detainees not to be killed but kept alive for use in exchanges143. Several witnesses
attested to Goran Jelisi}’s being present in Luka camp up until 18 or 19 May 1992 and
reported that there was a change of regime following his departure. Cruel treatment allegedly
became less frequent and there were supposedly no more murders144.
97. The Trial Chamber thus considers it possible that Goran Jelisi} acted beyond the
scope of the powers entrusted to him. Some of the testimony heard would appear to confirm
this conclusion since it describes the accused as a man acting as he pleased and as he saw
136 Witness L, FPT p. 944; Witness H, FPT p. 669; Witness I, FPT p. 730; Witness G, FPT p. 423; Witness J,
FPT p. 808.
137 Witness M, FPT p. 1076; Witness O, FPT p. 1155; Witness B, FPT pp. 158-159.
138 Witness D, FPT pp. 440-441. According to Witness O, Goran Jelisi} wore the uniform of the civilian police
or a camouflage uniform, FPT p. 1153.
139 Witness L, FPT pp. 907-970.
140 Witness B, FPT p. 139.
141 Witness A, FPT p. 95; Witness B, FPT p. 139.
142 Djurkovi} or Jerkovi}, Witness A, FPT p. 55; Witness B declared that “Kole” was the chief at Luka on 12 or
13 May 1992 and that he had been replaced by Vojkan and then Kosta, FPT p. 181.
143 Witness M, FPT p. 1076; Witness O, FPT p. 1155; Witness B, FPT pp. 158-159.
144 Witness K, FPT p. 885; Witness A, FPT p. 55.
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Case No. IT-95-10-T 14 December 1999
fit145. One witness even recounted that Goran Jelisi} had an altercation with a guard and told
him that he should not subject the detainees to such treatment146.
98. In consequence, the Trial Chamber considers that, in this case, the Prosecutor has not
provided sufficient evidence allowing it to be established beyond all reasonable doubt that
there existed a plan to destroy the Muslim group in Br~ko or elsewhere within which the
murders committed by the accused would allegedly fit.
(ii) Jelisi}’s intention to commit genocide
99. It is therefore only as a perpetrator that Goran Jelisi} could be declared guilty of
genocide.
100. Such a case is theoretically possible. The murders committed by the accused are
sufficient to establish the material element of the crime of genocide and it is a priori possible
to conceive that the accused harboured the plan to exterminate an entire group without this
intent having been supported by any organisation in which other individuals participated147.
In this respect, the preparatory work of the Convention of 1948 brings out that premeditation
was not selected as a legal ingredient of the crime of genocide, after having been mentioned
by the ad hoc committee at the draft stage, on the grounds that it seemed superfluous given
the special intention already required by the text148 and that such precision would only make
the burden of proof even greater149. It ensues from this omission that the drafters of the
Convention did not deem the existence of an organisation or a system serving a genocidal
objective as a legal ingredient of the crime. In so doing, they did not discount the possibility
of a lone individual seeking to destroy a group as such.
145 Witness I, FPT p. 761; Witness R, FPT p. 1413.
146 Witness I.
147 Pieter N. Drost, The Crime of State, Genocide, A.W. Sythoff, Leyden, 1959, p. 85: “both as a question of
theory and as a matter of principle nothing in the present Convention prohibits its provisions to be interpreted
and applied to individual cases of murder by reason of the national, racial, ethnical or religious qualities of the
single victim if the murderous attack was done with the intent to commit similar acts in the future and in
connection with the first crime”.
148 The French word “délibéré” was dropped further to a proposal of Belgium (UN Off. Doc. A/C.6/217, UN
Doc. A/C.6/SR.72 p. 8).
149 On this point, see inter alia the commentary of J. Graven, op. cit., p. 495.
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Case No. IT-95-10-T 14 December 1999
101. The Trial Chamber observes, however, that it will be very difficult in practice to
provide proof of the genocidal intent of an individual if the crimes committed are not
widespread and if the crime charged is not backed by an organisation or a system150.
102. Admittedly, the testimony makes it seem that during this period Goran Jelisi}
presented himself as the “Serbian Adolf”151 and claimed to have gone to Br~ko to kill
Muslims. He also presented himself as “Adolf” at his initial hearing before the Trial Chamber
on 26 January 1998152. He allegedly said to the detainees at Luka camp that he held their
lives in his hands and that only between 5 to 10 % of them would leave there153. According to
another witness, Goran Jelisi} told the Muslim detainees in Luka camp that 70% of them
were to be killed, 30% beaten and that barely 4% of the 30% might not be badly beaten154.
Goran Jelisi} remarked to one witness that he hated the Muslims and wanted to kill them all,
whilst the surviving Muslims could be slaves for cleaning the toilets but never have a
professional job. He reportedly added that he wanted “to cleanse” the Muslims and would
enjoy doing so, that the “balijas” had proliferated too much and that he had to rid the world
of them155. Goran Jelisi} also purportedly said that he hated Muslim women, that he found
them highly dirty and that he wanted to sterilise them all in order to prevent an increase in the
number of Muslims but that before exterminating them he would begin with the men in order
prevent any proliferation156.
103. The statements of the witnesses bring to light the fact that, during the initial part of
May, Goran Jelisi} regularly executed detainees at Luka camp. According to one witness,
Goran Jelisi} declared that he had to execute twenty to thirty persons before being able to
drink his coffee each morning. The testimony heard by the Trial Chamber revealed that
Goran Jelisi} frequently informed the detainees of the number of Muslims that he had killed.
Thus, on 8 May 1992 he reputedly said to one witness that it was his sixty-eighth victim157,
on 11 May that he had killed one hundred and fifty persons158 and finally on 15 May to
another witness159 following an execution that it was his “eighty-third case”.
150 The International Criminal Tribunal for Rwanda noted similarly in the Kayishema case that “although a
specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry
out a genocide without such a plan, or organisation” (para. 94).
151 Witness J, FPT pp. 774 and 808; Witness A, FPT p. 125.
152 FPT p. 1
153 Witness F, FPT pp. 234-567.
154 Witness G, FPT pp. 372-434.
155 Witness K, FPT pp. 864-865.
156 Witness K, FPT pp. 867-868.
157 Witness F, FPT p. 249.
158 Witness A, FPT p. 45.
159 Witness R, FPT pp. 1401-1405.
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Case No. IT-95-10-T 14 December 1999
104 Some witnesses pointed out that Goran Jelisi} seemed to take pleasure from his
position, one which gave him a feeling of power, of holding the power of life or death over
the detainees and that he took a certain pride in the number of victims that he had allegedly
executed160. According to another testimony, Goran Jelisi} spoke in a bloodthirsty manner, he
treated them like animals or beasts and spittle formed on his lips because of his shouts and the
hatred he was expressing. He wanted to terrorise them161.
105. The words and attitude of Goran Jelisi} as related by the witnesses essentially reveal a
disturbed personality162. Goran Jelisi} led an ordinary life before the conflict. This
personality, which presents borderline, anti-social and narcissistic characteristics and which is
marked simultaneously by immaturity, a hunger to fill a “void” and a concern to please
superiors, contributed to his finally committing crimes163. Goran Jelisi} suddenly found
himself in an apparent position of authority for which nothing had prepared him. It matters
little whether this authority was real. What does matter is that this authority made it even
easier for an opportunistic and inconsistent behaviour to express itself.
106. Goran Jelisi} performed the executions randomly. In addition, Witness R, an eminent
and well-known figure in the Muslim community was allegedly forced to play Russian
roulette with Goran Jelisi} before receiving a laissez-passer directly from him164. Moreover,
on his own initiative and against all logic, Goran Jelisi} issued laissez-passer to several
detainees at the camp, as shown inter alia by the case of Witness E165 whom Goran Jelisi}
released after having beaten.
107. In conclusion, the acts of Goran Jelisi} are not the physical expression of an affirmed
resolve to destroy in whole or in part a group as such.
108. All things considered, the Prosecutor has not established beyond all reasonable doubt
that genocide was committed in Br~ko during the period covered by the indictment.
Furthermore, the behaviour of the accused appears to indicate that, although he obviously
singled out Muslims, he killed arbitrarily rather than with the clear intention to destroy a
group. The Trial Chamber therefore concludes that it has not been proved beyond all
reasonable doubt that the accused was motivated by the dolus specialis of the crime of
160 Witness B, FPT pp. 131-133.
161 Witness K, FPT pp. 840-903 and 980-1026.
162 See note 25. See also the report of Doctor van den Bussche, 8 November 1999.
163 The Trial Chamber notes that the presence of a woman at Goran Jelisi}’s side also seems to have encouraged
him to commit certain murders in order to impress the young woman.
164 Witness R, FPT pp. 1383-1476.
34
Case No. IT-95-10-T 14 December 1999
genocide. The benefit of the doubt must always go to the accused and, consequently, Goran
Jelisi} must be found not guilty on this count.
V. SENTENCING
109. The Trial Chamber ultimately found Goran Jelisi} guilty of sixteen violations of the
laws or customs of war, twelve for murder (counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 23, 32
and 38), three for cruel treatment (counts 30, 36 and 40) and one for plunder (count 44) and
fifteen for crimes against humanity, that is, twelve counts of murder (counts 5, 7, 9, 11 13,
15, 17, 19, 21, 23, 33 and 39) and three counts of inhumane acts (counts 31, 37 and 41). The
Trial Chamber will pronounce sentence on the basis of that guilt.
A. Principles and Purpose of the Sentence
110. In order to pronounce the appropriate penalty the Tribunal is guided by the Statute
and the Rules. The Statute states:
Article 23
Judgement
1. The Trial Chambers shall pronounce judgements and impose sentences and
penalties on persons convicted of serious violations of international humanitarian law.
2. The judgement shall be rendered by a majority of the judges of the Trial
Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied
by a reasoned opinion in writing, to which separate or dissenting opinions may be
appended.
Article 24
Penalties
1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In
determining the terms of imprisonment, the Trial Chambers shall have recourse to the
general practice regarding prison sentences in the courts of the former Yugoslavia.
2. In imposing the sentences, the Trial Chambers should take into account such
factors as the gravity of the offence and the individual circumstances of the convicted
person.
[…]
165 Witness E, exhibit 24.
35
Case No. IT-95-10-T 14 December 1999
The Trial Chamber also notes the provisions of Rules 100 and 101 of the Rules166.
111. Article 41(1) of the 1990 Criminal Code of the Socialist Federal Republic of
Yugoslavia (SFRY) states which elements must be considered for the determination of
sentence:
For a given offence, the court shall set the limits prescribed by law for the offence and
shall consider all the circumstances which might influence the severity of the penalty
(mitigating and attenuating circumstances) and, in particular: the level of criminal
responsibility, the motives for the offence, the intensity of the threat or assault on the
protected object, the circumstances under which the offence was committed, the previous
history of the perpetrator of the offence, his personal circumstances and conduct
subsequent to the perpetration of the offence and any other circumstances relating to the
character of the perpetrator.
112. The Trial Chamber also notes Chapter XVI of the SFRY Criminal Code entitled
Criminal Offences against Humanity and International Law. Article 142 thereof provides
that:
166
Rule 100
Sentencing Procedure on a Guilty Plea
(A) If the Trial Chamber convicts the accused on a guilty plea, the Prosecutor and the defence may submit
any relevant information that may assist the Trial Chamber in determining an appropriate sentence.
(B) The sentence shall be pronounced in a judgement in public and in the presence of the convicted
person, subject to Sub-rule 102(B).
Rule 101
Penalties
(A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of
the convicted person’s life.
(B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article
24, paragraph 2, of the Statute. As well as such factors as:
(i) any aggravating circumstances
(ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the
convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of the former Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on the convicted person for
the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute.
(C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or
concurrently.
(D) Credit shall be given to the convicted person for the period, if any, during which the convicted person
was detained in custody pending surrender to the Tribunal or pending trial or appeal.
36
Case No. IT-95-10-T 14 December 1999
Any person who out of a disregard for the rule of law among peoples in times of war,
armed conflict or occupation orders an attack against a civilian population […] or
commits[…] acts of homicide or torture or who has subjected the civilian population to
inhumane treatment […] shall be punished with a term of imprisonment of at least five
years or by death.
113. It is clear that Article 142 authorises severe penalties for the crimes for which Goran
Jelisi} has been found guilty, that is, “a term of imprisonment of at least five years” or
death. The Trial Chamber notes that in November 1998 Bosnia and Herzegovina abolished
the death penalty and replaced it with a 20 to 40 year prison term167. The Trial Chamber
notes that, pursuant to Article 24 of the Statute, the International Tribunal may pass a
sentence of life imprisonment but never a death sentence.
114. The Trial Chamber considers, however, that the only obligation imposed by the
Statute through its reference to the general range of penalties applied by the courts of the
former Yugoslavia is to keep that range in mind. It is valid only as an indication168.
115. In conclusion, the Trial Chamber will take into account the Tribunal’s practice in
respect of the nature of the confirmed indictments and the scope of the crimes they cover,
the characteristics peculiar to the accused, the declarations of previous guilt and sentences
handed down.
116. As the Trial Chamber hearing the Tadi} case recently recalled, the mission of the
Tribunal, pursuant to Security Council resolutions 808 and 827, is to put a end to the serious
violations of international humanitarian law and to contribute to restoring and keeping the
peace in the former Yugoslavia. This is especially relevant for determining the penalty169.
To achieve these objectives, in concert with the case-law of the two ad hoc Tribunals, the
167 The Prosecutor v. Du{ko Tadi}, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 November 1999
(hereinafter “the Tadi} Sentencing Judgement of 11 November 1999”), para. 12.
168 This interpretation is in line with the case-law of the two ad hoc Tribunals: the Tadi} Sentencing Judgement
of 11 November 1999, para 12; the ^elebi}i Judgement, para 1194; The Prosecutor v. Zlatko Aleksovski, Case
No. IT-95-14/1-T, Judgement, 25 June 1999, para. 242; The Prosecutor v. Dra`en Erdemovi}, Case No. IT-96-
22-T, Sentencing Judgement, 29 November 1996, (hereinafter “the Erdemovi} Sentencing Judgement of 29
November 1996”), para. 39; and mutatis mutandis, for the ICTR: The Prosecutor v. Omar Serushago, Case No.
ICTR-98-39-S, Sentence, 5 February 1999, (hereinafter “the Serushago Sentence”), para. 18; The Prosecutor v.
Jean-Paul Akayesu, Case No. ICTR-96-4-T, Sentencing Judgement, 2 October 1998, (hereinafter “the Akayesu
Sentence”), para. 14; and The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence,
4 September 1998 (hereinafter “the Kambanda Sentence”), para. 23.
169 The Tadi} Sentencing Judgement of 11 November 1999, para. 7.
37
Case No. IT-95-10-T 14 December 1999
Trial Chamber must pronounce an exemplary penalty both from the viewpoint of
punishment and deterrence170.
117. Moreover, as noted in another case before the International Tribunal:
the International Tribunal sees public reprobation and stigmatisation by the international
community, which would thereby express its indignation over heinous crimes and
denounce the perpetrators as one of the essential functions of a prison sentence for a
crime against humanity171.
118. Lastly, the Trial Chamber agrees with the Trial Chamber which heard the
Furund`ija case, that is, that this reasoning applies not only to crimes against humanity but
also to war crimes and other serious violations of international humanitarian law172.
B. Conclusions of the Parties
119. Both parties presented their final arguments in respect of the penalty at a public
hearing held on 25 November 1999. On 24 November 1999, the Prosecution called two
witnesses, one “character witness” and a psychiatric expert and claimed that no decisive
mitigating circumstances exist. It did, however, mention many aggravating circumstances
including Goran Jelisi}’s demonstrated dishonesty, his discriminatory behaviour, his
enthusiasm in committing the crimes and his submissiveness vis à vis people in authority. In
respect of sentencing practice, the Prosecution referred inter alia to the recent sentence
handed down in the Tadi} case and asked the Trial Chamber to pronounce a life sentence on
the accused173.
120. From 8 to 11 November 1999 and on 22 and 24 November 1999, the Trial Chamber
heard 20 Defence witnesses including a psychiatric expert. Five of the witnesses were heard
by video-link from Br~ko and Sarajevo. The Defence claimed that the orders from superiors
which Goran Jelisi} allegedly obeyed, his guilty plea, his co-operation with the Office of the
Prosecutor, his remorse, his youth and his good relations with Muslims constitute mitigating
circumstances. Furthermore, the Defence held that when deliberating on the penalty to be
170 Tadi} Sentencing Judgement of 11 November 1999, para. 9; ^elebi}i Judgement, paras. 1231 and 1234; The
Prosecutor v. Anto Furund`ija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (hereinafter “the
Furund`ija Judgement”), para. 288; The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No.
ICTR-95-1-T, Judgement, 21 May 1999, para. 2; Serushago Sentence, para. 20; Akayesu Sentence, para. 19;
Kambanda Sentence, para. 28.
171 Erdemovi} Sentencing Judgement of 29 November 1996, para. 65.
172 Furund`ija Judgement, para. 289.
173 FPT p. 2310.
38
Case No. IT-95-10-T 14 December 1999
pronounced, the Trial Chamber must take into account the consistency of penalties meted out
by both ad hoc Tribunals and the local courts of Bosnia and Herzegovina. In this respect, it
mentioned four recent judgements in Bosnia and Herzegovina174. In conclusion, though not
recommending a specific penalty, the Defence argued that the Trial Chamber should not
sentence the accused to life in prison175.
C. Determination of the penalty
121. The Trial Chamber is of the opinion that the most important factors to be considered
in the case in point are the gravity of the crimes to which the accused pleaded guilty and his
personal circumstances.
1. The accused
122. The Trial Chamber has relatively little information on Goran Jelisi}. Most of its
information was provided by the expert reports it ordered or which were prepared at the
request of the Defence. The Trial Chamber notes that on important points, such as whether he
may have been subjected to physical violence when he was arrested by the Croats, the
accused presented conflicting accounts.
123. Goran Jelisi} was born on 7 June 1968 in Bijeljina in Bosnia and Herzegovina. After
leaving school early in his first year of secondary education, he became a farm mechanic. He
has been married since February 1995 and is the father of a young son176. Since his arrest on
22 January 1998, Goran Jelisi} has been held in the United Nations Detention Unit at
Scheveningen in The Hague177.
2. Mitigating circumstances
124. Among the mitigating circumstances set out by the Defence, the Trial Chamber will
consider the age of the accused. He is now 31 years old and, at the time of the crimes, was 23.
The Trial Chamber also takes into account the fact that the accused had never convicted of a
violent crime and that he is the father of a young child. Nonetheless, as indicated by the Trial
174 FPT pp. 2349-2350.
175 FPT p. 2354.
176 Forensic Report, Duits & Van der Veen, 25 November 1998, pp. 5-9.
177 Initial appearance of 26 January 1998, FPT p. 1.
39
Case No. IT-95-10-T 14 December 1999
Chamber hearing the Furund`ija case, many accused are in that same situation and, in so
serious a case, the Judges cannot accord too great a weight to considerations of this sort178.
125. As previously stated, the expert diagnosis indicated that Goran Jelisi} suffered from
personality disorders, had borderline, narcissistic and anti-social characteristics. Still, though
this does speak in favour of psychiatric follow-up, the Trial Chamber concurs with the
Prosecution and does not agree that such a condition diminishes Goran Jelisi}’s criminal
responsibility.
126. Moreover, the Trial Chamber considers that, even if it had been proved that Goran
Jelisi} acted on the orders of a superior, the relentless character and cruelty of his acts would
preclude his benefiting from this fact as a mitigating circumstance.
127. The Trial Chamber is not convinced that the remorse which Goran Jelisi} allegedly
expressed to the expert psychiatrist was sincere179. Moreover, although the Trial Chamber
considered the accused’s guilty plea out of principle, it must point out that the accused
demonstrated no remorse before it for the crimes he committed. The Trial Chamber further
states that photographs attached to the Agreed Factual Basis or produced at trial which the
accused was fully aware had been taken show Goran Jelisi} committing crimes. It therefore
accords only relative weight to his plea180. The Trial Chamber also notes that the accused
allegedly had considered surrendering voluntarily181 but did not. Furthermore, his cooperation
with the Office of the Prosecutor in this case does not seem to constitute a
mitigating circumstance within the meaning of Sub-rule 101(B)(ii) of the Rules. Finally,
although the accused’s behaviour has improved since he has been in detention, it is not such
as to mitigate the penalty in any substantial way.
128. Lastly, the Trial Chamber considered the testimony heard at trial in respect of
sentencing. The cordial relations that Goran Jelisi} may have had with Muslims does not
make up for the extreme gravity of the acts which he discriminatorily committed. In addition,
the Trial Chamber does not rule out the possibility that, once he realised what crimes he had
178 Furund`ija Judgement, para. 284.
179 Report of Doctor van den Bussche, 8 November 1999, p. 22.
180 The Trial Chamber observes that the accused pleaded guilty to crimes against humanity contrary the advice
of his counsel, FPT p. 187.
181 Witness DQ, FPT p. 2108.
40
Case No. IT-95-10-T 14 December 1999
committed, Goran Jelisi} actively sought out potential witnesses182, including witnesses from
the Muslim community itself.
3. Aggravating circumstances
129. The Trial Chamber concludes that the statements attached to the factual basis and the
testimony heard at the genocide trial show that Goran Jelisi}’s crimes were committed under
particularly aggravating circumstances.
130. The Trial Chamber points out the repugnant, bestial and sadistic nature of Goran
Jelisi}’s behaviour. His cold-blooded commission of murders and mistreatment of people
attest to a profound contempt for mankind and the right to life.
131. It was especially during the period spent at Luka camp that Goran Jelisi}
enthusiastically committed his crimes and took advantage of the opportunity afforded to him
by the feeling of power to impose his own will on the defenceless victims and to decide who
would live and who would die.
132. Furthermore, the Trial Chamber holds that the impact of the accused’s behaviour goes
well beyond the great physical and psychological suffering inflicted on the immediate victims
of his crimes and on their relatives. All the witnesses to the crimes who were at Goran
Jelisi}’s mercy suffered as well.
133. One of the missions of the International Criminal Tribunal is to contribute to the
restoration of peace in the former Yugoslavia. To do so, it must identify, prosecute and
punish the principal political and military officials responsible for the atrocities committed
since 1991 in the territories concerned. However, where need be, it must also recall that
although the crimes perpetrated during armed conflicts may be more specifically ascribed to
one or other of these officials, they could not achieve their ends without the enthusiastic help
or contribution, direct or indirect, of individuals like Goran Jelisi}.
182 The Trial Chamber notes, for example, the testimony of witness DR who met the accused for the first time in
1995.
41
Case No. IT-95-10-T 14 December 1999
134. Ultimately, in Goran Jelisi}’s case, the aggravating circumstances far outweigh the
mitigating ones and this is why a particularly harsh sentence has been imposed on him.
4. Calculation of the length of custody pending trial
135. Sub-rule 101(D) of the Rules states that “credit shall be given to the convicted person
for the period, if any, during which the convicted person was detained in custody pending
surrender to the Tribunal or pending trial or appeal”. When calculating the time to be served,
the fact that the accused has been detained by the Tribunal since 22 January 1998, that is, to
date, for one year, ten months and twenty-two days, must be taken into account.
5. The sentence itself
136. The Trial Chamber considers that the provisions of Rule 101 of the Rules do not
preclude the handing down of a single sentence for several crimes. In this respect, the Trial
Chamber points out that although, to date, the ICTY’s Trial Chambers have rendered
judgements imposing multiple penalties, Trial Chamber I of the ICTR imposed single
penalties in the Kambanda183 and Serushago184 cases.
137. In the case in point, the crimes ascribed to the accused were given two distinct
characterisations but form part of a single set of crimes committed over a brief time span
which does not allow for distinctions between their respective criminal intention and
motives. In view of their overall consistency, the Trial Chamber is of the opinion that it is
appropriate to impose a single penalty for all the crimes of which the accused was found
guilty.
183 Kambanda Sentence.
184 Serushago Sentence.
42
Case No. IT-95-10-T 14 December 1999
VI. DISPOSITION
138. For the foregoing reasons, the Trial Chamber unanimously:
ACQUITS Goran Jelisi} of count 1, genocide:
FINDS Goran Jelisi} GUILTY:
- of stealing money from persons detained at Luka camp, in particular Hasib Begi}, Zej}ir
Osmi}, Enes Zuki} and Armin Drapi}, between about 7 and 28 May 1992, count 44, a
violation of the laws or customs of war (plunder);
- of causing bodily harm between 10 and 12 May 1992 at Luka camp to the Osmi}
brothers, Zej}ir and Re{ad, count 30, a violation of the laws or customs of war (cruel
treatment), and count 31, a crime against humanity (inhumane acts);
- of causing bodily harm to Muhamed Bukvi} at Luka camp around 13 May 1992, count
36, a violation of the laws or customs of war (cruel treatment), and count 37, a crime
against humanity (inhumane acts);
- of causing bodily harm to Amir Didi} at Luka camp between 20 and 28 May 1992, count
40, a violation of the laws or customs of war (cruel treatment), and count 41, a crime
against humanity (inhumane acts);
- of the murder of an unidentified male around 6 or 7 May 1992 near the Br~ko police
station, count 4, a violation of the laws or customs of war, and count 5, a crime against
humanity;
- of the murder of Hasan Ja{arevi} near the Br~ko police station around 7 May 1992, count
6, a violation of the laws or customs of war, and count 7, a crime against humanity;
- of the murder of an unidentified young man from [interaj near the Br~ko police station
around 7 May 1992, count 8, a violation of the laws or customs of war and count 9, a
crime against humanity;
- of the murder of Ahmet Hod`i} (or Had`i}) alias Papa near the Br~ko police station
around 7 May 1992, count 10, a violation of the laws or customs or war, and count 11, a
crime against humanity;
- of the murder of Suad on 7 May 1992 near the Br~ko police station, count 12, a violation
of the laws or customs of war, and count 13, a crime against humanity;
43
Case No. IT-95-10-T 14 December 1999
- of the murder of Jasminko ^umurovi} alias Ja{~e around 8 May 1992 at the Luka camp,
count 14, a violation of the laws or customs of war, and count 15, a crime against
humanity;
- of the murders of Huso and Smajil Zahirovi} around 8 May at the Luka camp, count 16, a
violation of the laws or customs of war, and count 17, a crime against humanity;
- of the murder of Naza Bukvi} around 9 May 1992 at the Luka camp, count 18, a violation
of the laws or customs of war, and count 19, a crime against humanity;
- of the murder of Muharem Ahmetovi} around 9 May 1992 at the Luka camp, count 20, a
violation of the laws or customs of war, and count 21, a crime against humanity;
- of the murder of Stipo Glavo~evi}, alias Stjepo, around 9 May 1992 at the Luka camp,
count 22, a violation of the laws of customs of war, and count 23, a crime against
humanity;
- of the murder of Novalija, an elderly Muslim man, around 12 May 1992 at the Luka
camp, count 32, a violation of the laws or customs of war, and count 33, a crime against
humanity;
- of the murder of Adnan Kucalovi} around 18 May 1992 at the Luka camp, count 38, a
violation of the laws or customs of war, and count 39, a crime against humanity;
crimes covered by Articles 3, 5(a) and 7(1) of the Statute of the Tribunal and Article 3(1)(a)
of the Geneva Conventions.
139. For these reasons, the Trial Chamber SENTENCES Goran Jelisi} to forty (40) years
in prison;
140. RECOMMENDS that he receive psychological and psychiatric follow-up treatment
and REQUESTS that the Registry take all the appropriate measures in this respect together
with the State in which he will serve his sentence185.
185 The Trial Chamber points out that all the Agreements entered into with States willing to receive convicted
persons provide that when the Registrar presents her request, she will attach any appropriate recommendation
relating to continued treatment in the State where the convicted person serves his sentence. See Article 2(2)(c)
of the Agreements entered into with the different States: Agreement between the Government of Norway and
the United Nations on the enforcement of sentences of the International Criminal Tribunal for the former
Yugoslavia (24 April 1998), Agreement between the International Criminal Tribunal for the former Yugoslavia
and the Government of Finland on the enforcement of sentences of the International Tribunal (7 May 1997),
Agreement between the Government of the Italian Republic and the United Nations on the enforcement of
sentences of the International Criminal Tribunal for the former Yugoslavia (6 February 1997), Agreement
between the United Nations and the federal Government of Austria on the enforcement of sentences of the
International Criminal Tribunal for the former Yugoslavia (23 July 1999), Agreement between the United
44
Case No. IT-95-10-T 14 December 1999
Done in French and English, the French version being authoritative.
Done this fourteenth day of December 1999
At The Hague
The Netherlands
Claude Jorda
Presiding Judge, Trial Chamber
Fouad Riad Almiro Rodrigues
(Seal of the Tribunal)
Nations and the government of Sweden on the enforcement of sentences of the International Criminal Tribunal
for the former Yugoslavia (23 February 1999).
Annex 992
Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Trial Judgment (7 June 2001)
International Criminal Tribunal for Rwanda
Tribunal p~nal international pour le Rwanda
Original: English
TRIAL CHAMBER I
Before: Judge Erik Mase, Presiding
Judge Asoka de Z. Gunawardana
Judge Mehmet G~ney
Registry: Mr Adama Dieng
Decision of: 7 June 200
THE PROSECUTOR
VERSUS
IGNACE BAGILISHEMA
Case No. ICTR-95-1A-1
JUDGEMENT
The Office of the Prosecutor:
Ms Anywar Adong
Mr Charles Adeogun-Phillips
Mr Wallace Kapaya
Ms Boi-Tia Stevens
Counsel for the accused:
Mr Francois Roux
Mr Maroufa Diabira
Ms H~leyn Uhac
Mr Wayne Jordash
CTR-95-1A-T
1.2 Responsibility under Article 6() of the Statute
37. Article 6(3) incorporates the customary law doctrine of command responsibility.
This doctrine is predicated upon the powet of the superior to control or influence the acts
of subordinates. Failure by the superior to prevent, suppress, or punish crimes committed
by subordinates is a dereliction of duty that may invoke individual criminal
responsibility.
38. The Chamber will now consider, in turn, the three essential elements of command
responsibility, namely:
(i) the existence of a superior-subordinate relationship of effective control between the
accused and the perpetrator of the crime; and,
(ii) the knowledge, or constructive knowledge, of the accused that the crime was about to be,
was being, or had been committed; and,
(iii) the failure of the accused to take the necessary and reasonable measures to prevent or
stop the crime, or to punish the perpetratoe
1.2.1 Superior-Subordinate Relationship
39. A position of command is a necessary condition for the imposition of command
responsibility, but the existence of such a position cannot be determined by reference to
"Ag demonstrated in Prosecutor v. Zejil Delalic, Zdravko Mucic, Hazim Delic, and Esad Landro,
Judgement of 16 November 1998, [henceforth Celebici (TC)] paras. 333-343. This foundation of the
doctrine is apparent also in the Yamashita case, where the military commission characterised the accused's
failure to prevent the commission of atrocities by forces under his command as a breach of his "duty" as
commander (/n re Yamashita, 327 U.S. I (1946), pp. 13-14), The U.S. Supreme Court, in a decision
denying Yamashita's writ of habeas corpus, stated that a precedent for iposing such a duty existed in the
Hague Convention IV of 1907 (/n re Yamashita, pp. 15-16). In expounding a rationale for command
responsibility, the court observed that given that the purpose of the law of war was to protect civilian
populations and prisoners of war from brutality, this would largely be defeated if the commander of an
invading any could with impunity "neglect" to take reasonable measures for their protection (p. 15)
gee Celebici (TC) para. 346; Blaskie para. 294. See also Aleksovski (TC) para. 69, confirmed by the
Appeals Chamber in Prosecutor • Zatko Aleksovski, 24 March 2000 [henceforth Aleksovski (AC)] para.
72. The three constituent elements clearly draw from Article 86 para. 2, of Additional Protocol I, and
20
CTR-5-1A-T
I762 ------------··-·-·-----··- --- ·-·-------··------------ formal status alone. The factor that determines liability is the actual possession, or nonpossession,
of a position of command over subordinates. Therefore, although a person's
de jure position as a commander in certain circumstances may be sufficient to invoke
responsibility under Article 6(3), ultimately it is the actual relationship of command
(whether de jure or de facto) that is required for command responsibility. Te decisive
criterion in determining who is a superior is his or her ability, as demonstrated by duties
and competence, to effectively control his or her subordinates.
Command Responsibility of Civilian Superiors
40. Although the doctrine of command responsibility was applied originally in a
military context, Article 6(3) contains no express limitation restricting the scope of this
type of responsibility to military commanders or to situations arising under military
command. However, the broadening of the case-law of command responsibility to
include civilians, has proceeded with caution. In Akayesu, the Chamber stated that "the
application of the principle of individual criminal responsibility, enshrined in Article
6(3), to civilians remains contentious."
41. The first guilty verdict by an International Tribunal under the doctrine of
command responsibility was entered in the ICTY's Celebici case. Mucic, a civilian
warden of a prison-camp, was held responsible for the ill-treatment of prisoners by camp
guards. Although the accused held his post without a formal appointment, he manifested,
according to the Trial Chamber, all the powers and functions of a formal appointment as
Article 6 of the Draft Code of Crimes of the International Law Commission (UN DO¢. A/5L/10, 1996).
They are repeated in Article 28 of the Rome Statute of the International Criminal Court.
" see celebiei (TC) para. 370; Blaskie para. 301. see Ateksovski (TC) para. 76.
" ayes (TC) par. 491, The Chamber cited Judge R~ling's dissent in the Hirota case of the
International Military Tribunal for the Far East, which expressed concern about holding government
officials responsible for the behaviour of the army. In the event, the Chamber did not consider the three
counts alleging Alayesu's command responsibility, holding that a superior/subordinate relationship
between the accused and the local militia, though confirmed by the evidence presented in the case, had not
been expressly alleged in the indictment
21
(CTR-95-1A-T
l76/
commander." Since the Celebiei judgement, the ICTY has found another civilian prisoncamp
warden guilty on the grounds of superior responsibility," and the [CTR has found
two civilians, a pr~fet and a tea factory director, responsible as commanders for atrocities
committed in Rwanda."
42. While there can be no doubt, therefore, that the doctrine of command
responsibility extends beyond the responsibility of military commanders to encompass
civilian superiors in positions of authority," the Chamber agrees with the approach
articulated by the International Law Commission," and, more recently, in Celebici,
namely that the doctrine of command responsibility "extends to civilian superiors only to
the extent that they exercise a degree of control over their subordinates which is similar
to that of military commanders."
43. According to the Trial Charber in Celebici, for a civilian superior's degree of
control to be "similar to" that of a military commander, the control over subordinates
must be "effective"," and the superior must, have the "material ability" to prevent and
punish any offences. Furthermore, the exercise of de facto authority must be
accompanied by "the trappings of the exercise of de jure authority The present
Chamber concurs. The Chamber is of the view that these trappings of authority include,
for example, awareness of a chain of command, the practice of issuing and obeying
orders, and the expectation that insubordination may lead to disciplinary action. It is by
these trappings that the law distinguishes civilian superiors from mere rabble-rousers or
other persons of influence.
37ctebet (TC)y par. 750.
gee Aleksovski (TC) para. 118.
"gee Kayishema and Ruztndana (TC) and Musema.
"see Celebiei (TC)y para. 357-363.
ceuentary on the 1996 Code of Crimes against the Peace and Security of Mankind: "Report of the
Intemational Law Commission on the Work of its Forty-Eighth Session, 6 May--26 June 1996 [henceforth
LL.C. Draft Code of Crimes], U.N. Doc, A/51/10 (996), commentary para. 4 to Article 6.
celebiet (TC)y para. 378.
mid.
"mi.
22
CTR-95-1A-T
1.2.2 Knowing or Having Reason to Know
44. As to the mens rea, the standard that the doctrine of command responsibility
establishes for superiors who fail to prevent or punish crimes committed by their
subordinates is not one of strict liability. The U.S. Military Tribunal in the "High
Command case" held:
"Criminality does not attach to every individual in this chain of command from that fact
alone. There must be a personal dereliction. That can occur only where the act is directly
traceable to him or where his failure to properly supervise his subordinates constitutes
criminal negligence on bis pan.
45, It follows that the essential element is not whether a superior had authority over a
certain geographical area, but whether he or she had effective control over the individuals
who committed the crimes, and whether he or she knew or had reason to know that the
subordinates were committing or had committed a crime under the Statutes. Although an
individual's command position may be a significant indicator that he or she knew about
the crimes, such knowledge may not be presumed on the basis of his or her position
alone.
46. It is the Chamber's view that a superior possesses or will be imputed the mens rea
required to incur criminal liability where:
he or she had actual knowledge, established through direct or circumstantial evidence,
that his or her subordinates were about to commit, were committing, or had
committed, a crime under the Statutes;"or,
he or she had information which put him or her on notice of the risk of such offences
by indicating the need for additional investigation in order to ascertain whether such
"(id. para. 646.
rs.A. • Whelm von Leeb et al., in Trials of War Criminals, Vol. XI, pp, $43-544, [henceforth the High
Command case].
"se Celebiei (TO) pars. 384-386.
23
CTR-95-1A-T
offences were about to be committed, were being committed, or had been committed,
by subordinates;" or,
the absence of knowledge is the result of negligence in the discharge of the superior's
duties; that is, where the superior failed to exercise the means available to him or her
to learm of the offences, and under the circumstances he or she should have known."
1.2.3 Failing to Prevent or Punish
47. Article 6(3) states that a superior is expected to take "necessary and reasonable
measures" to prevent or punish crimes under the Statutes. The Chamber understands
"necessary" to be those measures required to discharge the obligation to prevent or
punish in the circumstances prevailing at the time; and, "reasonable" to be those
measures which the commander was in a position to take in the circumstances."
48. A superior may be held responsible for failing to take only such measures that
were within his or her powers. fndeed, it is the commander's degree of effective
control - his or her material ability to control subordinates which will guide the
Chamber in determining whether he or she took reasonable measures to prevent, stop, or
punish the subordinates' crimes. Such a material ability must not be considered
abstractly, but must be evaluated on a case-by-case basis, considering all the
circumstances.
49. In this connection, the Chamber notes that the obligation to prevent or punish
does not provide the Accused with alternative options, For example, where the Accused
knew or had reason to know that his or her subordinates were about to commit crimes and
failed to prevent them, the Accused cannot make up for the failure to act by punisbing the
subordinates afterwards e
mi. para. 390-393.
gs Blaskic pars. 314-332; ct. Aleksovski (TC) para. 80. see Blaske para. 333. see Celebiei (TO) para. 395.
$2 See Blaskic para, 336.
24
CTR9S-1A-T
50. The Chamber is of the view that, in the case of failure to punish, a superior's
responsibility may arise from his or her failure to create or sustain among the persons
under his or her control, an environment of discipline and respect for the law. For
example, in Celebici, the Trial Chamber cited evidence that Mucic, the accused prison
warden, never punished guards, was frequently absent from the camp at night, and failed
to enforce any instructions he did happen to give out? n Blaskic, the accused had led
his subordinates to understand that certain types of illegal conduct were acceptable and
would not result in punishment." Both Mucic and Blaskic tolerated indiscipline among
their subordinates, causing them to believe that acts in disregard of the dictates of
humanitarian law would go unpunished. It follows that command responsibility for
failure to punish may be triggered by a broadly based pattern of conduct by a superior,
which in effect encourages the commission of atrocities by his or her subordinates.°
2. The Crime of Genocide (Article 2 of the Statute)
2.1 Genocide
51. Article 2 of the Statute reads:
], The International Tribunal for Rwanda shall have the power to prosecute persons
committing genocide as defined in paragraph 2 of this Article or of committing any of the
other acts cnumerated in paragraph 3 of this Article
2. Genocide means any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:
Killing members of the group;
Causing serious bodily or mental harm to members of the group;
"ge celebict (TC) paras. 772£
"see Blaskic paras. 487 and 494-495.
Pg position is evident not only from the case-law, but also from the aim of Article 643), which is not
that the crimes of subordinates should be punished but that superiors should ensure that the crimes do not
occur. See also / re Yamashita pp. 14-16; Akayes para. 69l; Celebiei (TC) paras. 772f Blaslic paras.
487f.
25
ICTR-95-14-T
I7K7
Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part,
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
Genocide;
Conspiracy to commit genocide;
Direct and public incitement to commit genocide;
Attempt to commit genocide;
Complicity in genocide."
52. Under Count 1 of the Indictment, the Prosecution alleges that the Accused is
responsible under Articles 6(1) and 6(3) for the killing or causing of serious bodily or
mental harm to members of the Tutsi population and charges the Accused with the crime
of genocide pursuant to Article 263Ka) of the Statute.
53. The definition of genocide, as provided in Article 2 of the Statute, cites, verbatim,
Articles 2 and 3 of the Convention on the Prevention and Punishment of the Crime of
Genocide (the "Genocide Convention).
54. The Genocide Convention is undeniably considered part of customary
international law, as reflected in the advisory opinion of the International Court of Justice
(1951) on reservations to the Convention° The Chamber also notes that Rwanda
acceded, by legislative decree, to the Genocide Convention on 12 February 1975, and that
the crime of genocide was therefore punishable in Rwanda in 1994.
55, The definition of the crime of genocide has been interpreted in the jurisprudence
of this Tribunal, namely in the Akayes, Kayishema and Rzindana, Rutaganda and
Musema Judgements. The Chamber adheres to the definitions of genocide as elaborated
? re Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN
General Assembly, 9 December 1948.
gae also tbe UN Secretary-General's Report on the establishment of tbe International Criminal Tribunal
for the Former Yugoslavia, 3 May 1993, U.N D6. $/25704.
26
CTR.95-IA.T
17«¢ --·-·-----···-·····--··········--····-·----·---··----··--······-················---··-- in these judgements. It therefore considers that a crime of genocide is proven if it is
established beyond reasonable doubt, firstly, that one of the acts listed under Article 2Q2)
of the Statute was committed and, secondly, that this act was committed against a
specifically targeted national, ethnical, racial or religious group, with the specific intent
to destroy, in whole or in part, that group. Genocide therefore invites analysis under two
beadings: the prohibited underlying acts and the specific genocidal intent or dolus
specialis.
2.1.1 Underlying Acts
56. The acts underlying the crime of genocide may in each case be analysed into
physical and mental elements. The offences relevant to the present case are considered
below.
() Killing - Article 22(a) of the Statute
57. Article 2Q2(a) of the Statute, like the corresponding provisions of the Genocide
Convention, uses "meurtre" in the French version and "killing" in the English version.
The concept of killing includes both intentional and unintentional homicide, whereas
meurire refers exclusively to homicide committed with the intent to cause death. In such
a situation, pursuant to the general principles of criminal law, the version more
favourable to the Accused must be adopted. The Chamber also notes the Criminal Code
of Rwanda, which provides, under Article 311, that "Homicide committed with intent to
cause death shall be treated as murder.
58. The Chamber therefore finds that Article 2(2(a) of the Statute must be interpreted
as a homicide committed with intent to cause death. Furthermore, to constitute a crime of
genocide, the enumerated acts under Article 2Q2(a) must be committed with intent to
destroy a specific group in whole or in part. Therefore, by their very nature the
enumerated acts are conscious, intentional, volitional acts that an individual cannot
commit by accident or as a result of mere negligence.
27
ICTR95-1A.T
(t) Causing Serious Bodily or Mental Harm - Article 2(2)(b) of the Statute
59. For the purposes of interpreting Article 2(2)01) of the Statute, the Chamber
construes "serious bodily or mental harm" to include acts of bodily or mental torture,
inhumane or degrading treatment, rape, sexual violence, and persecution. In the
Chamber's view, "serious harm" entails more than minor impairment on mental or
physical faculties, but it need not amount to permanent or irremediable harm.
2.1.2 Dolus Specialis
60. The dolus specialis of the crime of genocide is found in the "intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such"
61. For one of the underlying acts to be constitutive of the crime of genocide, it must
have been committed against a person because this person was a member of a specific
group, and specifically because of his or her membership of this group. Consequently, the
perpetration of the act is in realisation of the purpose of the perpetrator, which is to
destroy the group in whole or in part. It follows that the victim of the crime of genocide is
singled out by the offender not by reason of his or her individual identity, but on account
of his or her being a member of a national, ethnical, racial, or religious group. This means
that the victim of the crime of genocide is not only the individual but also the group to
which he or she belongs."
62. On the issue of determining the offender's specific intent, the Chamber applies
the following reasoning, as held in Akayesw:
[...] intent is a mental factor which is difficult, even impossible, to determine. This is the
reason why, in the absence of a confession from the accused, his intent can be inferred from a
certain number of presumptions of fact. The Chamber considers that it is possible to deduce
the genocidal intent inherent in a particular act charged from the general context of the
perpetration of other culpable acts systematically directed against that same group, whether
these acts were committed by the same offender or by others. Other factors, such as the scale
4ayes (TC pars. 521-522.
28
---· .. ········-···-··-··--·····-···---
1CTR-95-1A-T
-·-····---· '1-S 'if of atrocities committed, their general nature, in a region or a country, or furthermore, the fact
of deliberately and systematically targeting victims on account of their membership of a
particular group, while excluding the members of other groups, can enable the Chamber to
infer the genocidal intent of a particular act.
63. Thus evidence of the context of the alleged culpable acts may help the Chamber
to determine the intention of the Accused, especially where the intention of a person is
not clear from what that person says or does. The Chamber notes, however, that the use
of context to determine the intent of an accused must be counterbalanced with the actual
conduct of the Accused. The Chamber is of the opinion that the Accused's intent should
be determined, above all, from his words and deeds, and should be evident from patterns
ofpurposeful action.
64. As for the meaning of the terms "in whole or in part", the Chamber agrees with
the statement of the International Law Commission, that "the intention must be to destroy
the group as such, meaning as a separate and distinct entity, and not merely some
individuals because of their membership in a particular group, Athough the
destruction sought need not be directed at every member of the targeted group, the
Chamber considers that the intention to destroy must target at least a substantial part of
the group."
65. The Chamber notes that the concepts of national, ethnical, racial, and religious
groups enjoy no generally or internationally accepted definition." Each of these concepts
must be assessed in the light of a particular political, social, historical, and cultural
context. Although membership of the targeted group must be an objective feature of the
society in question, there is also a subjective dimension. A group may not have
$9 Aayes (TC) para. 523.
"Lc,Dean Code of Crimes, p. 88, and Akayesu(TC) paras. 496-499.
'pee example, the Chamber in Kayishema and Rzindana (TC)y held that the accused must have the
intention to destroy a "considerable" number of members of a group.
4hough indicative definitions of these four terms have been provided, for example, in Akayes paras.
512-515.
'p «is regard, the Chamber agrees with the comment of the Commission of Experts on Rwanda thut "to
recognise that there exists discrimination on racial or ethnic grounds, it is not necessary to presume or posit
29
ICTR-95-AA-T
precisely defined boundaries and there may be occasions when it is difficult to give a
definitive answer as to whether or not a victim was a member of a protected group.
Moreover, the perpetrators of genocide may characterize the targeted group in ways that
do not fully correspond to conceptions of the group shared generally, or by other
segments of society. In such a case, the Chamber is of the opinion that, on the evidence,
if a victim was perceived by a perpetrator as belonging to a protected group, the victim
could be considered by the Chamber as a member of the protected group, for the purposes
of genocide.
2.2 Complicity to Commit Genocide
66. By Count 2 of the Indictment, the Prosecutor alleges that the Accused is
responsible, under Articles 6(1) and 6(3), as an accomplice to the killing and causing of
serious bodily or mental harm to members of the Tutsi population, and charges the
Accused with the crime of complicity in genocide, pursuant to Article 2(3(e) of the
Statute.
67. The Indictment indicates that for the charge of complicity in genocide, the
Prosecution relies on the same acts that it relies on for the charge of genocide. In the
Chamber's view, genocide and complicity in genocide are two different forms of
participation in the same offence. The Chamber thus concurs with the opinion expressed
in Akayesu that "an act with which an Accused is being charged cannot, therefore, be
characterized both as an act of genocide and an act of complicity in genocide as pertains
to this accused. Consequently, since the two are mutually exclusive, the same individual
cannot be convicted of both crimes for the same aet," Therefore, the Chamber finds that
an accused cannot be convicted of both genocide and complicity in genocide on the basis
of the same acts.
the existence of race or ethnicity itself as e scientifically objective fact": Morris and Scharf, The
International Criminal Tribunal for Rwanda, vol. 1, p. 176
4ayes (TC) para. 532.
30
he
CTR.-95-1A-T
68, The Chamber agrees with the definition of the elements of the offence of
complicity in genocide found in the jurisprudence of this Tribunal, as, for example, in
Musema.°
69, With regard to the actus reus of complicity in genocide, the Chamber notes that,
under Common Law, the forms of accomplice participation are usually defined as "aiding
and abetting, counselling and procuring". On the other hand, in most Civil Law systems,
three forms of accomplice participation are recognised: complicity by instigation, by
aiding and abetting, and by procuring means. The Rwandan Penal Code, in its Article 91,
defines, inter alia, these three forms of complicity:
"(a) Complicity by procuring means, such as wcapons, instruments or any other means, used
to commit genocide, with the accomplice knowing that such means would be used for such a
purpose;
(b) Complicity by knowingly aiding or abetting a perpetrator of a genocide in the planning or
enabling acts thereof;
(c) Complicity by instigation, for which a person is liable who, though not directly
participating in the crime of genocide, gave instructions to commit genocide, through gifts,
promises, threats, abuse of authority or power, machinations or culpable artifice, or who
directly incited the commission of genocide.
70. Taking note of the fact that the Civil Law and the Common Law definitions of
complicity are very similar, the Chamber defines the forms of complicity, for the
purposes of interpreting Article 263(e) of the Statute, as complicity by aiding and
abetting, by procuring means, or by instigation, as defined in the Rwandan Penal Code.
71. The mens rea of complicity in genocide lies in the accomplice's knowledge of the
commission of the crime of genocide by the principal perpetrator." Therefore, the
accomplice in genocide need not possess the dolus specialis of genocide; rather he or she,
knowingly, aids and abets, instigates or procures for another in the knowledge that the
fsema paras, 168-175
[ayes (TC) para. 179
[id. paras. 525-548.
31
CTR-95-1A-T
other person intends to destroy, in whole or in part, a national, ethnical, racial or religious
group as such.
3. Crimes against Humanity (Article 3 of the Statute)
72. Article 3 of the ICTR Statute reads:
The International Tribunal for Rwanda shall have the power to prosecute persons
responsible for the following crimes when committed as part of a widespread or systematic
attack against any civilian population on national, political, ethnic, racial or religious
grounds:
(a) Murder,
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment;
( Torture;
(g) Rape;
(h) Persecutions on political, racial and religious grounds;
(i) Other inhumane acts."
73. The Accused in the present case is charged with three counts of crimes against
humanity: murder, extermination, and other inhumane acts, under Article 3(a), (b), and (i)
of the Statute, respectively. The three counts charge the Accused with responsibility
under Article 6(1) and 6(3) of the Statute.
68 See inter alia the conclusions in Akayeu (TC para. 540f.
32
CTR-95-IA-T
(70
74. The text of Article 3 of the Statute draws primarily on the benchmark definition of
a crime against humanity found in Article 6(c) of the Statute of the Nuremberg
Tribunal." In customary international law, crimes against humanity may be directed
against any civilian population and are prohibited regardless of whether they are
committed in an international or internal armed contliet" Te UN Security Council, in
deciding that crimes against humanity in the Statute of this Tribunal must have been
committed as part of a discriminatory attack, applied a narrower definition than that in
customary international law.
75. A crime against humanity is a prohibited underlying offence committed as part of
a broader criminal attack. The crime therefore invites definition under three headings: the
broader attack, the underlying offences, and the mental element.
3.1 The Broader Attack
76. The underlying offences must be committed as part of a widespread or systematic
attack against any civilian population on national, political, ethnic, racial, or religious
grounds.
3.1.1 Widespread or Systematie
77, A widespread attack is an attack on a large scale directed against a multiplicity of
victims, whereas a systematic attack is one carried out pursuant to a preconceived policy
or plan." To qualify, the attack must be at least widespread or systematic, but need not be
both. Nonetheless, the Chamber notes that the criteria by which one or the other aspects
of the attack is established partially overlap. As stated in Blaskic:
" gex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European
Axis, London, 8 August 1945, p. 85,
7 [yes (TC) pa1A. 565; The Prosecutor v. Dusko Tadie, Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 14l,
33
- -' --------------------------------------------ICTRi?-1/-1
"The fact still remains however that, in practice, these two criteria will often be difficult to
separate since a widespread attack targeting a large number of victims generally relies on
some for of planning or organisation. The quantitative criterion is not objectively definable
as witnessed by the fact that neither international texts nor international and national case-law
set any threshold starting with which a crime against humanity is constituted."
78. It is, therefore, the Chamber's view that either of the requirements of widespread
or systematic will be enough to exclude acts not committed as part of a broader policy or
plan. Also, the requirement that the attack must be committed against a "civilian
population" presupposes a kind of plan; and the discriminatory element of the attack is,
by its very nature, only possible as a consequence of a policy. Thus the policy element
can be seen to be an inherent feature of the attack, whether the attack be characterised as
widespread or systematie." Further, it is clear from Article 3 of the Statute and recent
case law" that such a policy may be instigated or directed by any organisation or group,
whether or not representing the government of a State.
3.1.2 Against any Civilian Population
79. The Chamber concurs with the finding in Tadic that the targeted population must
be predominantly civilian in nature, but that the presence of certain non-civilians in it
does not change its civilian character. It also follows, as argued in Blaskic, "that the
specific situation of the victim at the moment the crimes were committed, rather than his
status, must be taken into account in determining his standing as a civilian.""°
80, The requirement that the prohibited acts must be directed against a civilian
T' pr example, the ILC Draft Code of Crimes defies systematic as "meaning pursuant to a preconceived
plan or policy, The implementation of this plan or policy could result in the repeated or continuous
commission of inhumane acts." Commentary on Article 18, par. 3. Backe para. 207.
7 4hough the Chamber concurs with the statement in Kupreskic et al, "that although the concept of
crimes against humanity necessarily implies a policy element, there is some doubt as to whether it is strictly
a requirement, as such, for crimes against humanity", para, 51,
ge, for example, Tadice (TC) para 6$4,
""7e (TC)y para. 638
34
"population" does not mean that the entire population of a given State or territory must be
victimised by these acts in order for the acts to constitute a crime against humanity.
Instead the "population" element is intended to imply crimes of a collective nature and
thus excludes single or isolated acts which, although possibly constituting crimes under
national penal legislation, do not rise to the level of crimes against humanity.
3.1.3 On Discriminatory Grounds
8L. The Statute contains a requirement that, the broader attack must be conducted on
national, political, ethnic, racial, or religious grounde." Te Chamber is of the view that
the qualifier "on national, political, ethnic, racial or religious grounds", which is peculiar
to the [CTR Statute should, as a matter of construction, be read as a characterisation of
the nature of the "attack" rather than of the mens rea of the perpetrate" Te perpetrator
may well have committed an underlying offence on discriminatory grounds identical to
those of the broader attack; but neither this, nor for that matter any discriminatory intent
whatsoever, are prerequisites of the crime, so long as it was committed as part of the
broader attace.
" taste para. 214
"ge fade (TC) par. 644.
7rue requirement is additional to the Nuremberg Charter, the ICTY Statute, and the ICC Statute.
Ta4the drafters of the Statute sought to characterise the individual actor's intent as discriminatory, they
would have inserted the relevant phrase immediately after the word "committed", or they would have used
punctuation to set aside the intervening description of the attack. In addition, they would have taken care to
modify Article 34h) to redress the resulting repetition of qualifiers. As noted by the Appeals Chamber in
Tadie {correcting the Trial Chamber's adoption in that case of a supposedly implicit requirement of
discriminatory intent for all crimes against humanity under Article S of the ICTY Statute), "a logical
construction of Article 5 also leads to the conclusion that, generally speaking, this requirement is not laid
down for all crimes against humanity. Indeed, if it were otherwise, why should Article S(h) specify that
"persecutions" fall under the Tribunal's jurisdiction if carried out 'on political, racial and religious
grounds"? This specification would be illogical and superfluous. It is an elementary rule of interpretation
that one should not constme a provision or part of a provision as if it were superfluous and hence pointless:
the presumption is warranted that law-makers enact or agree upon rules that are well thought out and
meaningful in all their elements." Tadie (AC) para. 284. See also ibid. para. 305; Kupreskic et al. para. 558;
Blaskic paras. 244 and 260.
"re Prosecutor • Jean Paul Akayes, Judgement on appeal of I June 2001 (Case No. 96-4-A) para. 469
(AC), and Kayishema and Ruzindana (TC) par. 133-134.
35
CTR-95-1A-T
(qg7
3.2 Underlying Acts
82. As discussed above, a crime against humanity is constituted by an offence
committed as part of a widespread or systematic attack against a civilian population on
national, political, ethnic, racial, or religious grounds. However, an underlying offence
need not contain elements of the broader attack. For example, an offence may be
committed without discrimination, or be neither widespread nor systematic, yet still
constitutes a crime against humanity if the other prerequisites of the principal crime are
met. A single act by a perpetrator may thus constitute a crime against humanity_ "l
83. Each enumerated crime contains its own specific mental and physical elements.
The three underlying offences charged in the Indictment are described below.
Murder
84. In Kayishema and Ruzindana, the Trial Chamber found that:
"murder and assassinat [the word used in the French version of the Statute] should be
considered together in order to ascertain the standard of mens rea intended by the drafters and
demanded by the CTR Statute. When murder is considered along with assassinat the
Chamber finds that the standard of mens rea required is intentional and premeditated killing.
The accused is guilty of murder if the accused, engaging in conduct which is unlawful:
I, causes the death of another;
2. by a premeditated act or omission; and
3. intending to kill any person or,
4. intending to cause grievous bodily harm to any person.
85. This Chamber concurs with the above description.
4l pe Prosecutor v. Mile Msksic, Miroslay Radie, and Veselin Slivancanin, Review of the Indictment
Pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 Apnil 1996 (Case TT-95.13-R61) para. 30
and Kupreskic et al para. 550
Athena and Ruztndana (TC) par. 139-140.
36
du
ICTR-9S-1A-T
(7wt -------------------------·---
Extermination
86. There is very little jurisprudence relating to the essential elements of
extermination. In Akayesu the Trial Chamber stated that extermination is a crime by
definition directed against a group of individuals, differing from murder in respect of this
element of mass destruction. Jean-Paul Akayesu was found guilty of extermination for
ordering the killing of sixteen people.
87. The Chamber agrees that extermination is unlawful killing on a large scale.
"Large scale" does not suggest a numerical minimum. It must be determined on a caseby-
case basis using a common-sense approach.
88. A perpetrator may nonetheless be guilty of extermination if he kills, or creates the
conditions of life that kill, a single person, providing that the perpetrator is aware that his
or her acts or omissions form part of a mass killing event, namely mass killings that are
proximate in time and place and thereby are best understood as a single or sustained
attack.
89, The Chamber thus adopts the three clements of the underlying crime of
extermination articulated in Kayishema and Ruzindan" These are that the Accused,
through his acts or omissions:
(i) participated in the mass killing of others, or in the creation of conditions of life
leading to the mass killing of others;
(ii) intended the killings, or was reckless, or grossly negligent as to whether the
killings would result; and,
(iii) was aware that his acts or omissions formed part of a mass killing event.
90. The "creation of conditions of life leading to the mass killing" of others include,
for example imprisoning a large number of people and withholding the necessities: of life,
"ayes (TC)y para. 735-744,
"gayshema and Ruzindaa (TC) para. 144.
37
{I.
ICTR-95-1A.T - ·-··-·····---····--··-··-···-····---·······-·-·---········--······-···-··---·--- so that mass death results; or introducing a deadly virus into a population and preventing
medical care, with the same result.
Other Inhumane Acts
91. Since the Nuremberg Charter, the category "other inhumane acts" has been
retained as a category of unspecified acts of comparable gravity to the other enumerated
acts. Article 7(k) of the Rome Statute of the International Criminal Court characterises
"other inhumane acts" with reference to a preceding list of offences as "acts of a similar
character intentionally causing great suffering, or serious injury to body or to mental or
physical health." Commenting on Article 18 of its Draft Code of Crimes, the
International Law Commission stated that:
"., this category of acts is intended to include only additional acts that are similar in gravity
to those listed in the preceding subparagraphs. Second, the act must in fact cause injury to a
human being in terms of physical or mental integrity, health or human dignity(para. 17).
92. The Chamber therefore is of the view that, "other inhumane acts" includes acts
that are of similar gravity and seriousness to the enumerated acts of murder,
extermination, enslavement, deportation, imprisonment, torture, rape, or persecution on
political, racial, and religious grounds. These will be acts or omissions that deliberately
cause serious mental or physical suffering or injury or constitute a serious attack on
human dignity. As for which acts rise to the level of inhumane acts, this should be
determined on a case-by-case basis.
3.3 Mental Element
93. A mental factor specific to crimes against humanity is required to create the nexus
between an underlying offence and the broader criminal context, thus transforming an
ordinary crime into an attack on humanity itself
94, The Chamber concurs with the description of the mens rea of a crime against
humanity as stated in Kayishema and Rzindana (which was cited with approval in the
38
CTR-95-1A-T
ICTY cases of Kupreskic et al." and Blaskie"), namely, that the Accused mentally must
include his act within the greater dimension of criminal conduct. This means that the
accused must know that his offence forms part of the broader attack. By making his
criminal act part of the attack, the perpetrator necessarily participates in the broader
attack.
95. It is worth noting that the motives (as distinct from the intent) of the Accused are
of no relevance to the legal constitution of a crime against humanity." This point was
clarified by the Appeals Chamber in Tadic, which held that an act committed for purely
personal motives was not excluded from being a crime against humanity as long as the
underlying offence was committed by the perpetrator as part of the broader attact"
4, Violations of the Geneva Conventions and Additional Protocol II
96. Article 4 of the Statute reads:
The International Tribunal for Rwanda shall have the power to prosecute persons
committing or ordering to be committed serious violations of Article 3 common to the
Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional
Protocol II thereto of 8 June 1977, These violations shall include, but shall not be Limited to:
a) Violence to life, health and physical or mental well-being of persons, in particular
murder as well as cruel treatment such as torture, mutilation or any form of corporal
punishment;
b) Collective punishments;
c) Taking of hostages;
d) Acts of terrorism;
e) Outrages upon personal dignity, in particular humiliating and degrading treatment,
rape, enforced prostitution and any for of indecent assault;
f) Pillage;
"reskic et al. para. 557.
" pAaekice para. 249.
reskie et al. par. 558.
"die (AC) pars. 271-272.
39
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ICTR-95-1A.T
I7vs -········---·
g) The passing of sentences and the canying out of executions without previous
judgement pronounced by a regularly constituted count, affording all the judicial
guarantees which are recognised as indispensable by civilised peoples;
h) Threats to commit any of the foregoing acts."
97. Under Counts 6 and 7 of the Indictment, the Prosecution alleges that the Accused
is responsible under Articles 6(1) and 6(3) for the serious violations of Common Article 3
and Additional Protocol II pursuant to Articles 4(a) and (e) of the Statute.
4.1 Applicability
98. Jurisprudence of this Tribunal has established that Common Article 3 and
Additional Protocol Il were applicable as a matter of custom and convention in Rwanda
in 1994." Consequently, at the time the events in the Indictment are said to have taken
place, persons who violated these instruments would incur individual criminal
responsibility and could be prosecuted therefore.
4.2 Material Requirements
99. Common Article 3 and Additional Protocol II afford protection to, inter alia,
civilians, non-combatants and persons placed hors de combat, in the context of internal
armed conflicts. Such conflicts must meet a minimum threshold requirement to fall
within the ambit of these instruments. The lesser threshold is that of Common Article 3
which simply applies to armed conflicts "not of an international character". This rules out
acts of banditry and intemal disturbances but covers hostilities that involve armed forces
organized to a greater or lesser extent, To be covered by Common Article 3, the
hostilities must take place within the territory of a single State, which, in the present
matter would be that of Rwanda.
100. Additional Protocol II offers a higher threshold of applicability inasmuch it
applies to conflicts which take place in the territory of a High Contracting Party between
40
ht
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CTR-95-1A-T
its armed forces and dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of its territory as to enable
them to carry out sustained and concerted military operations and to implement this
Protocol. Again, situations ruled out as not being armed conflicts are "internal
disturbances and tensions, such as riots, isolated and sporadic acts of violence and other
acts of a similar nature. Considering the higher threshold of applicability of Additional
Protocol II, it is clear that a conflict that meets its material requirements of applicability
will ipso facto meet those of Common Article 3.
101. Whether a conflict meets the material requirements of the above instruments is a
matter of objective evaluation of the organization and intensity of the conflict and of the
forces opposing one and another" Once the material requirements of Common Article 3
or Additional Protocol II have been met, these instruments will immediately be
applicable not only within the limited theatre of combat but also in the whole territory of
the State engaged in the conflict. Consequently, the parties engaged in the hostilities are
bound to respect the provisions of these instruments throughout the relevant territory.
102. For a violation to be covered by Article 4 of the Statute it must be deemed
serious. On this, the Chamber follows the definition advanced in Akayes, in which the
Chamber stated that a serious violation is "a breach of a rule protecting important values
which must involve grave consequences for the victim"." Regarding the elements of
murder, as covered by Article 4(a) of the Statute, the Chamber refers to its definition of
murder in 3.2 above.
103. Common Article 3 and Additional Protocol II afford protection primarily to
victims or potential victims of armed conflicts. In the case of Common Article 3, these
geAkayes (TC) paras. 608-610, Kayihema and Ruetnlana (TC)y para. 156 and Musema paras. 970
971
8gee Article I of Additional Protocol II and Akayes (TC) paras. 625-626.
"Akayes (TC) para. 624.
[ayes (TC) para. 616.
41
?t
ICTR-9$.14-T
I7°/ ----- ······--·········--·-·····-----------·--···-----·--··--·----
individuals are persons taking no active pant in the hostilities" and, under Additional
Protocol I, the protection is extended to all persons who do not take or who have ceased
to take part in the hostilities." ln the present matter, it is clear that the victims of the
events alleged are unarmed men, women, and children, all civilians.
104. To take a direct or active part in the hostilities covers acts which by their very
nature or purpose are likely to cause harm to personnel and equipment of the armed
forces. In assessing whether or not an individual can be classed as being a civilian, the
overall humanitarian purpose of the Geneva Conventions and their Protocols should be
taken into account. To give effect to this purpose, a civilian should be considered to be
any one who is not a member of the "ared forces', as described above, or any one
placed hors de combat.°
105. For a crime to constitute a serious violation of Common Article 3 and Additional
Protocol II, there must be a nexus between the offence and the armed conflict. The
"nexus" requirement is met when the offence is closely related to the hostilities or
committed in conjunction with the armed conflict. The Appeals Chamber in Tadic held
that it is "sufficient that the alleged crimes were closely related to the hostilities occurring
in other parts of the territories controlled by the parties to the confliet."° As such, it is
not necessary that actual armed hostilities have broken out in Mabanza commune and
Kibuye Prefecture for Article 4 of the Statute to be applicable. Moreover, it is not a
requirement that fighting was taking place in the exact time-period when the acts the
offences alleged occurred were perpetrated. The Chamber will determine whether the
alleged acts were committed against the victims because of the conflict at issue.
106. The burden rests on the Prosecutor to establish that such a nexus exists.
coon Article 3(1
"icte 4
ge1977 Additional Protocol I Articles 43 and 44 as regards requirements for recognition of combatant
status and Rutaganda paras. 10 and I0i
6 Prosecutor v. Tadie, Decision on the defence motion for interlocutory appeal on jurisdiction" of
2 October 1995 para. 0,
42
CTR-9S-1A-T
5. Cumulative Charging
107. The Accused is cumulatively charged with seven counts on the basis of his acts as
alleged in paragraphs 4.10 to 4.31 of the Indictment (although the Complicity to commit
genocide is based only on paragraphs 4.14 to 4.25)
108. With regard to cumulative charging, the ICTY Appeals Chamber in Celebici held:
"Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all
of the evidence, it is not possible to determine to a certainty which of the charges brought
against an accused will be proven. The Trial Chamber is better poised, after the parties'
presentation of the evidence, to evaluate which of the charges may be retained, based upon
the sufficiency of the evidence. In addition, cumulative charging constitutes the usual practice
of both this Tribunal and the ICTR.""
109. The Chamber concurs with the holding of the ICTY Appeals Chamber endorsing
the principle of cumulative charging. Therefore, in the present case, the Chamber will
consider all the charges in the Indictment, preferred against the Accused.
cetet (AC) para. 400.
43
Annex 993
Prosecutor v. Krsti, Case No. IT-98-33-T, Judgment (2 August 2001)
Case No.: IT-98-33-T 2 August 2001
UNITED
NATIONS
Case No. IT-98-33-T
Date: 02 August 2001
International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations of
International Humanitarian Law
Committed in the Territory of
Former Yugoslavia since 1991 Original: English
IN THE TRIAL CHAMBER
Before: Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Registrar: Mr. Hans Holthuis
PROSECUTOR
v.
RADISLAV KRSTIC
JUDGEMENT
The Office of the Prosecutor:
Mr. Mark Harmon
Mr. Peter McCloskey
Mr. Andrew Cayley
Ms. Magda Karagiannakis
Counsel for the Accused:
Mr. Nenad Petrušic
Mr. Tomislav Višnji}
188
Case No.: IT-98-33-T 2 August 2001
individual acts may not be inhumane, their overall consequences must offend humanity in such a
way that they may be termed ‘inhumane’.1190
536. The Trial Chamber has previously determined that a widespread and systematic attack was
launched against the Bosnian Muslim population of Srebrenica from 11 July onwards, by reason of
their belonging to the Bosnian Muslim group.
537. The humanitarian crisis in Poto~ari, the burning of homes in Srebrenica and Poto~ari, the
terrorisation of Bosnian Muslim civilians, the murder of thousands of Bosnian Muslim civilians, in
Poto~ari or in carefully orchestrated mass scale executions, and the forcible transfer of the women,
children and elderly out of the territory controlled by the Bosnian Serbs, constitute persecutory acts.
538. The Trial Chamber is thus satisfied that a crime of persecution, as defined in the indictment,
was committed from 11 July 1995 onward in the enclave of Srebrenica.
G. Genocide
539. General Krsti} is principally charged with genocide and, in the alternative, with complicity
in genocide1191 in relation to the mass executions of the Bosnian Muslim men in Srebrenica between
11 July and 1 November 1995.1192
540. Article 4(2) of the Statute defines genocide as:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
541. The Trial Chamber must interpret Article 4 of the Statute taking into account the state of
customary international law at the time the events in Srebrenica took place. Several sources have
been considered in this respect. The Trial Chamber first referred to the codification work
1190 Kupre{ki} Judgement, para. 622.
1191 Counts 1 and 2.
189
Case No.: IT-98-33-T 2 August 2001
undertaken by international bodies. The Convention on the Prevention and Punishment of the
Crime of Genocide1193 (hereinafter "the Convention"), adopted on 9 December 1948,1194 whose
provisions Article 4 adopts verbatim, constitutes the main reference source in this respect.
Although the Convention was adopted during the same period that the term "genocide" itself was
coined, the Convention has been viewed as codifying a norm of international law long recognised
and which case-law would soon elevate to the level of a peremptory norm of general international
law (jus cogens).1195 The Trial Chamber has interpreted the Convention pursuant to the general
rules of interpretation of treaties laid down in Articles 31 and 32 of the Vienna Convention on the
Law of Treaties. As a result, the Chamber took into account the object and purpose of the
Convention in addition to the ordinary meaning of the terms in its provisions. As a supplementary
means of interpretation, the Trial Chamber also consulted the preparatory work and the
circumstances which gave rise to the Convention. Furthermore, the Trial Chamber considered the
international case-law on the crime of genocide, in particular, that developed by the ICTR. The
Report of the International Law Commission (ILC) on the Draft Code of Crimes against Peace and
Security of Mankind1196 received particular attention. Although the report was completed in 1996,
it is the product of several years of reflection by the Commission whose purpose was to codify
international law, notably on genocide : it therefore constitutes a particularly relevant source for
interpretation of Article 4. The work of other international committees, especially the reports of the
Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN
Commission on Human Rights,1197 was also reviewed. Furthermore, the Chamber gave
consideration to the work done in producing the Rome Statute on the establishment of an
international criminal court, specifically, the finalised draft text of the elements of crimes completed
by the Preparatory Commission for the International Criminal Court in July 2000.1198 Although that
document post-dates the acts involved here, it has proved helpful in assessing the state of customary
international law which the Chamber itself derived from other sources. In this regard, it should be
noted that all the States attending the conference, whether signatories of the Rome Statute or not,
were eligible to be represented on the Preparatory Commission. From this perspective, the
1192 Indictment, para. 21.
1193 Articles II and III.
1194 Entered into force on 12 January 1951.
1195 Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Reports
(1951), p. 23.
1196 ILC Draft Code, in particular, pp. 106-114.
1197 Nicodème Ruhashyankiko, Study on the Question of the Prevention and Punishment of the Crime of Genocide,
United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, E/CN. 4/Sub. 2/ 416, 4 July 1978; Benjamin Whitaker, Revised and
Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, United Nations,
Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and
Protection of Minorities, E/CN.4/Sub. 2/1985/6, 2 July 1985.
190
Case No.: IT-98-33-T 2 August 2001
document is a useful key to the opinio juris of the States. Finally, the Trial Chamber also looked
for guidance in the legislation and practice of States, especially their judicial interpretations and
decisions.
542. Article 4 of the Statute characterises genocide by two constitutive elements:
- the actus reus of the offence, which consists of one or several of the acts enumerated under
Article 4(2);
- the mens rea of the offence, which is described as the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such.
1. Actus reus
543. The Trial Chamber has discussed above the murders and serious bodily and mental harm
alleged by the Prosecution and has concluded they have been proved. It has been established
beyond all reasonable doubt that Bosnian Muslim men residing in the enclave were murdered, in
mass executions or individually. It has also been established that serious bodily or mental harm was
done to the few individuals who survived the mass executions.
2. Mens rea
544. The critical determination still to be made is whether the offences were committed with the
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.
545. The Prosecution contends that the Bosnian Serb forces planned and intended to kill all the
Bosnian Muslim men of military age at Srebrenica and that these large scale murders constitute
genocide.1199 The Defence does not challenge that the Bosnian Serb forces killed a significant
number of Bosnian Muslim men of military age but disagrees a genocidal intent within the meaning
of Article 4 has been proved.
546. The Trial Chamber is ultimately satisfied that murders and infliction of serious bodily or
mental harm were committed with the intent to kill all the Bosnian Muslim men of military age at
Srebrenica. The evidence shows that the mass executions mainly took place between 13 and 16
July, while executions of smaller scale continued until 19 July. All of the executions systematically
targeted Bosnian Muslim men of military age, regardless of whether they were civilians or soldiers.
1198 PCNICC/2000/INF/3/Add. 2, 6 July 2000.
1199 Prosecution Opening Statement, T. 461.
191
Case No.: IT-98-33-T 2 August 2001
The military aged men who fled to Poto~ari were systematically separated from the other refugees.
They were gathered in the “White House” and were forced to leave their identification papers and
personal belongings outside the house. While opportunistic killings occurred in Poto~ari on 12 and
13 July,1200 most of the men detained in the White house were bussed to Bratunac, from the
afternoon of 12 July throughout 13 July,1201 and were subsequently led to execution sites.
Additionally, the VRS launched an artillery attack against the column of Bosnian Muslim men
marching toward Tuzla soon after it became aware of its existence.1202 A relentless search for the
men forming the column started on 12 July and continued throughout 13 July. The few survivors
qualified the search as a “man hunt” that left hardly any chance of escape.1203 Attack resumed on
14 and 15 July against the third of the column that had managed to cross the asphalt road between
Konjevic Polje and Nova Kasaba on 11-12 July.1204 As the pressures on the VRS mounted during
the fatal week of 11-16 July, negotiations were undertaken between the Bosnian Muslim and
Bosnian Serb sides and a portion of the Bosnian Muslim column was eventually let through to
government-held territory.1205 The most logical reason for this was that most of the VRS troops had
been relocated to @epa by this time and, due to lack of manpower to stop the column, the Zvornik
brigade was forced to let them go.1206 Overall, however, as many as 8,000 to 10,000 men from the
Muslim column of 10,000 to 15,000 men were eventually reported as missing.1207
547. The VRS may have initially considered only targeting the military men for execution.1208
Some men from the column were in fact killed in combat and it is not certain that the VRS intended
at first to kill all the captured Muslim men, including the civilians in the column.1209 Evidence
shows, however, that a decision was taken, at some point, to capture and kill all the Bosnian
Muslim men indiscriminately. No effort thereafter was made to distinguish the soldiers from the
civilians. Identification papers and personal belongings were taken away from both Bosnian
Muslim men at Poto~ari and from men captured from the column; their papers and belongings were
piled up and eventually burnt.1210 The strength of the desire to capture all the Bosnian Muslim men
was so great that Bosnian Serb forces systematically stopped the buses transporting the women,
1200 Supra, paras. 43-47, 58.
1201 Supra, para. 59, 66.
1202 An intercept submitted into evidence indicates that the Bosnian Serbs were aware of the column as of 12 July at
0300 hours. Supra, para. 162.
1203 Supra, para. 62.
1204 Supra, para. 65.
1205 Supra, para. 65.
1206 Supra, para. 85.
1207 Supra, para. 83.
1208 A list of criminals of war was drawn upon @ivanovi}’s order dated 13 July; an intercepted conversation between
Cerovi} and Beara on 16 July (P335) also indicates that the prisoners should be screened.
1209 Supra, paras. 77, 80.
1210 Supra, para. 171.
192
Case No.: IT-98-33-T 2 August 2001
children and the elderly at Ti{}a and checked that no men were hiding on board.1211 Those men
found in the buses were removed and subsequently executed.1212 Admittedly, as the Defence has
argued, some wounded men were authorised to leave the Srebrenica enclave under the escort of
UNPROFOR. A report of 13 July, however, indicates that the VRS agreed to their evacuation only
because of the presence of UNPROFOR and in order to show to the media that non-combatants
were properly treated.1213 Except for the wounded, all the men, whether separated in Poto~ari or
captured from the column, were executed, either in small groups or in carefully orchestrated mass
executions. They were led to sites located in remote places for execution. The men, sometimes
blindfolded, barefoot or with their wrists bound behind their backs, were lined up and shot in
rounds. Others were jammed into buildings and killed by rounds of automatic rifles or machine
gunfire, or with hand grenades hurled into the buildings.1214 Bulldozers usually arrived
immediately after the execution was completed, to bury the corpses.1215 Soldiers would sometimes
start digging the graves while the executions were still in progress.1216 Bosnian Serb soldiers would
come back to the execution sites a few hours later and check that no one had been left alive.1217 The
evidence shows that the VRS sought to kill all the Bosnian Muslim military aged men in
Srebrenica, regardless of their civilian or military status.
548. The Prosecution contends that evidence demonstrates an intent to destroy part of a group as
such,1218 which is consonant with the definition of genocide. Conversely, the Defence maintains
that the intent to kill all the Bosnian Muslim men of military age living in Srebrenica cannot be
interpreted as an intent to destroy in whole or in part a group as such within the meaning of Article
4 of the Statute.
549. As a preliminary, the Chamber emphasises the need to distinguish between the individual
intent of the accused and the intent involved in the conception and commission of the crime. The
gravity and the scale of the crime of genocide ordinarily presume that several protagonists were
involved in its perpetration. Although the motive of each participant may differ, the objective of
the criminal enterprise remains the same. In such cases of joint participation, the intent to destroy,
in whole or in part, a group as such must be discernible in the criminal act itself, apart from the
intent of particular perpetrators. It is then necessary to establish whether the accused being
prosecuted for genocide shared the intention that a genocide be carried out.
1211 Supra, para. 216. The screening of the men probably took place on 12 July and in the earlier hours of 13 July.
1212 para. 106.
1213 P459, supra para. 86.
1214 Execution in Kravica on 13 July, Pilica cultural Dom on 16 July.
1215 Supra, para. 68.
1216 Orahovac, 14 July.
193
Case No.: IT-98-33-T 2 August 2001
550. Genocide refers to any criminal enterprise seeking to destroy, in whole or in part, a
particular kind of human group, as such, by certain means. Those are two elements of the special
intent requirement of genocide:
- the act or acts must target a national, ethnical, racial or religious group;
- the act or acts must seek to destroy all or part of that group.1219
(a) A group, as such
551. The parties agreed that genocide must target not only one or several individuals but a group
as such.1220
552. United Nations General Assembly resolution 96 (I) defined genocide as “a denial of the
right of existence of entire human groups”.1221 On the same issue, the Secretariat explained:
The victim of the crime of genocide is a human group. It is not a greater or smaller number of
individuals who are affected for a particular reason but a group as such.1222
In 1951, following the adoption of the Genocide Convention, the International Court of Justice
observed that the Convention looked “to safeguard the very existence of certain human groups and
?…g to confirm and endorse the most elementary principles of morality”.1223 The ILC also insisted
on this point in 1996:
The group itself is the ultimate target or intended victim of this type of massive criminal conduct.
... the intention must be to destroy the group ‘as such’, meaning as a separate and distinct
entity.1224
The Akayesu Judgement1225 and the Kayishema and Ruzindana Judgement1226 upheld this
interpretation.
1217 See esp. Witnesses J and K’s testimony who are survivors of the execution carried out at the Kravica warehouse.
supra para. 207.
1218 Indictment, para. 21.
1219 Jelisi} Judgement, para. 66.
1220 Prosecutor’s Submissions of agreed matters of law presented during the pre-trial conference of 7 March 2000, 8
March 2000, paras. 92 and 93.
1221 UN Doc. A/ 96(I) (1946), 11 December 1946.
1222 “Relations Between the Convention on Genocide on the One Hand and the Formulation of the Nurnberg Principles
and the Preparation of a Draft Code of Offences Against Peace and Security on the Other”, U.N. Doc.
E/AC.25/3/Rev.1, 12 April 1948, p. 6. Nehemia Robinson set forth this essential characteristic of genocide very
explicitly in his commentary on the Convention: “The main characteristic of Genocide is its object: the act must be
directed toward the destruction of a group. Groups consist of individuals, and therefore, destructive action must, in the
last analysis, be taken against individuals. However, these individuals are important not per se but only as members of
the group to which they belong” (op.cit. p. 63).
1223 Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Reports
(1951), p. 23.
1224 ILC Draft Code, p. 88.
194
Case No.: IT-98-33-T 2 August 2001
553. The Convention thus seeks to protect the right to life of human groups, as such. This
characteristic makes genocide an exceptionally grave crime and distinguishes it from other serious
crimes, in particular persecution, where the perpetrator selects his victims because of their
membership in a specific community but does not necessarily seek to destroy the community as
such.1227
554. However, the Genocide Convention does not protect all types of human groups. Its
application is confined to national, ethnical, racial or religious groups.
555. National, ethnical, racial or religious group are not clearly defined in the Convention or
elsewhere. In contrast, the preparatory work on the Convention and the work conducted by
international bodies in relation to the protection of minorities show that the concepts of protected
groups and national minorities partially overlap and are on occasion synonymous. European
instruments on human rights use the term “national minorities”,1228 while universal instruments
more commonly make reference to “ethnic, religious or linguistic minorities”;1229 the two
expressions appear to embrace the same goals.1230 In a study conducted for the Sub-Commission on
Prevention of Discrimination and Protection of Minorities in 1979, F. Capotorti commented that
“the Sub-Commission ?on Prevention of Discrimination and Protection of Minoritiesg decided, in
1950, to replace the word 'racial’ by the word 'ethnic’ in all references to minority groups described
by their ethnic origin”.1231 The International Convention on the Elimination of All Forms of Racial
Discrimination1232 defines racial discrimination as “any distinction, exclusion, restriction or
1225 Akayesu Judgement, para. 522: “The perpetration of the act charged therefore extends beyond its actual
commission, for example, the murder of a particular individual, for the realisation of an ulterior motive, which is to
destroy, in whole or in part, the group of which the individual is just one element”.
1226 Kayishema, Ruzindana Judgement, para. 99 : “'Destroying’ has to be directed at the group as such, that is, qua
group”.
1227 See in particular the Kupre{ki} Judgement, para. 636 and the Jelisi} Judgement, para. 79.
1228 See in particular Article 14 of the European Convention on Human Rights: “The enjoyment of the rights and
freedoms set forth in this Convention shall be secured without discrimination on any ground such as ?…g association
with a national minority ?…g”. See also the Framework Convention for the Protection of National Minorities, ETS 157,
or principle VII of the Final Act of the Conference on Security and Co-operation in Europe (1975), point 105, para. 2.
1229 See in particular Article 27 of the International Covenant on Civil and Political Rights: “In those States in which
ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in
community with the other members of their group, to enjoy their own culture, to profess and practise their own religion,
or to use their own language”.
1230 See in particular the definition suggested by the European Commission for Democracy through Law, The Protection
of Minorities, Strasbourg: Council of Europe Press, 1994, p. 12: a national minority is “a group which is smaller in
number than the rest of a population of a State, whose members, who are nationals of that State, have ethnical, religious
or linguistic features different from those of the rest of the population, and are guided by the will to safeguard their
culture, traditions, religion or language”.
1231 F. Capotorti, Study on the Rights of the Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc.
E/CN.4/Sub.2/384/Rev.1 (1979), paras. 197, referring to the debates held on a draft resolution on the definition of
minorities (E/CN. 4/Sub. 2/103).
1232 UNTS, vol. 660, no. 9646.
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Case No.: IT-98-33-T 2 August 2001
preference based on race, colour, descent, or national or ethnic origin”.1233 The preparatory work on
the Genocide Convention also reflects that the term “ethnical” was added at a later stage in order to
better define the type of groups protected by the Convention and ensure that the term “national”
would not be understood as encompassing purely political groups.1234
556. The preparatory work of the Convention shows that setting out such a list was designed
more to describe a single phenomenon, roughly corresponding to what was recognised, before the
second word war, as “national minorities”, rather than to refer to several distinct prototypes of
human groups. To attempt to differentiate each of the named groups on the basis of scientifically
objective criteria would thus be inconsistent with the object and purpose of the Convention.
557. A group’s cultural, religious, ethnical or national characteristics must be identified within
the socio-historic context which it inhabits. As in the Nikoli}1235 and Jelisi}1236 cases, the Chamber
identifies the relevant group by using as a criterion the stigmatisation of the group, notably by the
perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious
characteristics.
558. Whereas the indictment in this case defined the targeted group as the Bosnian Muslims, the
Prosecution appeared to use an alternative definition in its pre-trial brief by pleading the intention to
eliminate the “Bosnian Muslim population of Srebrenica” through mass killing and deportation.1237
In its final trial brief, the Prosecution chose to define the group as the Bosnian Muslims of
Srebrenica,1238 while it referred to the Bosnian Muslims of Eastern Bosnia in its final arguments.1239
The Defence argued in its final brief that the Bosnian Muslims of Srebrenica did not form a specific
national, ethnical, racial or religious group. In particular, it contended that “one cannot create an
artificial ‘group’ by limiting its scope to a geographical area”.1240 According to the Defence, the
Bosnian Muslims constitute the only group that fits the definition of a group protected by the
Convention.1241
559. Originally viewed as a religious group, the Bosnian Muslims were recognised as a “nation”
by the Yugoslav Constitution of 1963. The evidence tendered at trial also shows very clearly that
the highest Bosnian Serb political authorities and the Bosnian Serb forces operating in Srebrenica in
1233 Article 1.
1234 UN Doc. A/C.6/SR.73 (Petren, Sweden); UN Doc. A/C.6/SR.74 (Petren, Sweden).
1235 The Prosecutor v. Nikoli}, Review of the indictment pursuant to Rule 61, Decision of Trial Chamber I, 20 October
1995, case no. IT-94-2-R61 (hereinafter “the Nikoli} Decision”), para. 27.
1236 Jelisi} Judgement, para. 70.
1237 Prosecutor’s pre-trial brief pursuant to Rule 65 ter (E) (i), 25 February 2000, para. 12.
1238 Prosecution Final Trial Brief, para. 412.
1239 Closing argument, T. 9983.
1240 Final Submissions of the Accused, para. 104.
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July 1995 viewed the Bosnian Muslims as a specific national group. Conversely, no national,
ethnical, racial or religious characteristic makes it possible to differentiate the Bosnian Muslims
residing in Srebrenica, at the time of the 1995 offensive, from the other Bosnian Muslims. The only
distinctive criterion would be their geographical location, not a criterion contemplated by the
Convention. In addition, it is doubtful that the Bosnian Muslims residing in the enclave at the time
of the offensive considered themselves a distinct national, ethnical, racial or religious group among
the Bosnian Muslims. Indeed, most of the Bosnian Muslims residing in Srebrenica at the time of
the attack were not originally from Srebrenica but from all around the central Podrinje region.
Evidence shows that they rather viewed themselves as members of the Bosnian Muslim group.
560. The Chamber concludes that the protected group, within the meaning of Article 4 of the
Statute, must be defined, in the present case, as the Bosnian Muslims. The Bosnian Muslims of
Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group under
Article 4. The question of whether an intent to destroy a part of the protected group falls under the
definition of genocide is a separate issue that will be discussed below.
561. The Prosecution and the Defence, in this case, concur in their belief that the victims of
genocide must be targeted by reason of their membership in a group.1242 This is the only
interpretation coinciding with the intent which characterises the crime of genocide. The intent to
destroy a group as such, in whole or in part, presupposes that the victims were chosen by reason of
their membership in the group whose destruction was sought. Mere knowledge of the victims’
membership in a distinct group on the part of the perpetrators is not sufficient to establish an
intention to destroy the group as such. As the ILC noted:
?…g the intention must be to destroy a group and not merely one or more individuals who are
coincidentally members of a particular group. The ?…g act must be committed against an
individual because of his membership in a particular group and as an incremental step in the
overall objective of destroying the group.1243
562. As a result, there are obvious similarities between a genocidal policy and the policy
commonly known as ''ethnic cleansing''. In this case, acts of discrimination are not confined to the
events in Srebrenica alone, but characterise the whole of the 1992-95 conflict between the Bosnian
Serbs, Muslims and Croats. The Report of the Secretary-General comments that “a central
objective of the conflict was the use of military means to terrorise civilian populations, often with
1241 Final Submissions of the Accused, paras. 102-107.
1242 Prosecutor’s pre-trial brief pursuant to Rule 65 ter (E) (i), 25 February 2000, para. 92, p. 33.
1243 ILC Draft Code, p. 109. See also Pieter Drost, The Crime of State, Genocide, p. 124, for a commentary on the
Convention: “It is an externally perceptible quality or characteristic which the victim has in common with the other
members of the group, which makes him distinct from the rest of society in the criminal mind of his attacker and which
for that very reason causes the attacker to commit the crime against such marked and indicated individual”.
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the goal of forcing their flight in a process that came to be known as 'ethnic cleansing'”.1244 The
Bosnian Serbs’ war objective was clearly spelt out, notably in a decision issued on 12 May 1992 by
Mom~ilo Kraji{nik, then President of the National Assembly of the Bosnian Serb People. The
decision indicates that one of the strategic objectives of the Serbian people of Bosnia-Herzegovina
was to reunite all Serbian people in a single State, in particular by erasing the border along the
Drina which separated Serbia from Eastern Bosnia, whose population was mostly Serbian.1245
563. The accused himself defined the objective of the campaign in Bosnia during an interview in
November 1995, when he explained that the Podrinje region should remain “Serbian for ever, while
the Eastern part of Republika Srpska and the Drina river w?ouldg be an important meeting point for
the entire Serbian people from both sides of the Drina”.1246
564. In this goal, the cleansing of Bosnian Muslims from Srebrenica had special advantages.
Lying in the central Podrinje region, whose strategic importance for the creation of a Bosnian Serb
Republic has frequently been cited in testimony,1247 Srebrenica and the surrounding area was a
predominantly Muslim pocket within a mainly Serbian region adjoining Serbia.1248 Given the war
objectives, it is hardly surprising that the Serbs and Bosnian Muslims fought each other bitterly in
this region from the outbreak of the conflict.1249
565. Many attacks were launched by both parties against villages controlled by the other side in
the region. The Bosnian Muslim forces committed apparent violations of humanitarian law directed
against the Bosnian Serb inhabitants of the region, especially from May 1992 to January 1993.1250
In response, operations were conducted by the Bosnian Serb forces, notably, a large-scale attack
launched in January 1993. The attack forced the Bosnian Muslim population from the surrounding
villages to flee to the areas of Srebrenica and @epa. As a result, the population of Srebrenica
climbed from 37,000 in 1991 to 50,000 or 60,000 in 1993 while, at the same time, the territory
shrank from 900 to 150 square km.1251 A significant majority of the Muslim population, residing in
the territory of the Drina Corps’ zone of responsibility, had already been displaced by April 1993.
By that date, the Bosnian Serb forces had ethnically cleansed the towns and villages of Zvornik,
1244 para. 19.
1245 P746/a.
1246 P743, p. 2.
1247 Radinovi}, T. 7812. supra, para. 12.
1248 See para. 11, referring to the Report of the Secretary-General, para. 33.
1249 The Report of the Secretary-General, para. 33, lists the crimes committed by the Bosnian Serb forces against the
Bosnian Muslim population from the very outset of the conflict.
1250 Report of the Secretary-General, paras. 34 to 37.
1251 Supra, para. 13-14.
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[ekovi}i, Kalesija, Bratunac, Vlasenica, Kladanj, Olovo, Han Pijesak, Rogatica and Sokolac.1252
The over-populated municipality of Srebrenica was then subjected to constant shelling before the
Security Council decided, on 16 April 1993, to declare the enclave a safe area.1253 Despite a period
of relative stability, the living conditions remained dreadful. The Security Council Mission, set up
pursuant to resolution 819, described Srebrenica on 30 April 1993 as an “open jail” 1254 and stated
that 50% of the dwellings had been demolished. The Mission further lamented the Bosnian Serb
forces’ harassment of the humanitarian convoys heading for Srebrenica and the obstacles
confronted in transporting the sick and wounded out of the enclave.1255 Until 1995, the water and
electricity networks were unusable, having been either destroyed or cut. There was an extreme
shortage of food and medicines.1256
566. Even before the offensive of July 1995 and as early as January 1995, the Bosnian Serb
forces tried to prevent the humanitarian convoys from getting through to the enclave.1257 The Trial
Chamber has previously described the catastrophic humanitarian situation which was born out of
the policy of systematically hampering humanitarian convoys.1258 In particular, several persons died
from starvation on 7 and 8 July 1995 and a report from the command of the 28th Division, dated 8
July 1995, warned that the civilian population would very soon be forced to flee the enclave if it
wished to survive.1259
567. However, the Trial Chamber has found that, on its face, the operation Krivaja 95 did not
include a plan to overrun the enclave and expel the Bosnian Muslim population.1260 The Trial
Chamber heard credible testimony on the chronic refusal of Bosnian Muslim forces to respect the
demilitarisation agreement of 1993.1261 Defence witnesses accused the Bosnian Muslim forces of
using the safe area as a fortified base from which to launch offensives against the Bosnian Serb
forces. In particular, on 26 June 1995, several weeks prior to the offensive of the VRS on
Srebrenica, the Bosnian Muslim forces launched an assault from the enclave on the Serbian village
1252 Statement of General Had`ihasanovi} made on 24 January 2001, para. 4, corroborated by General Krsti}’s
statement in a press article published in November 1995 (P744/c, p. 1).
1253 Resolution 819 (1993), 16 April 1993.
1254 P 126: Report of the Security Council Mission set up pursuant to resolution 819 (1993), UN Doc. S/25700 (30 April
1993), para. 18.
1255 Ibid, para. 10 and 11.
1256 Supra, para. 15.
1257 Supra, para. 26.
1258 Supra, para. 28.
1259 P 901, p. 2.
1260 Supra, para. 120.
1261 Supra, p ara. 24. First agreement signed on 18 April 1993, followed by the agreement of 8 May 1993.
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Case No.: IT-98-33-T 2 August 2001
of Vi{nica 5km away.1262 Such acts could well have motivated an attack designed to cut
communications between the enclaves of @epa and Srebrenica.
568. The operation, however, was not confined to mere retaliation. Its objective, although
perhaps restricted initially to blocking communications between the two enclaves and reducing the
Srebrenica enclave to its urban core, was quickly extended. Realising that no resistance was being
offered by the Bosnian Muslim forces or the international community, President Karad`i}
broadened the operation’s objective by issuing, on 9 July, the order to seize the town.1263 By 11
July, the town of Srebrenica was captured, driving 20,000 to 25,000 Muslim refugees to flee
towards Poto~ari. Operation Krivaja 1995 then became an instrument of the policy designed to
drive out the Bosnian Muslim population. The humanitarian crisis caused by the flow of refugees
arriving at Poto~ari, the intensity and the scale of the violence, the illegal confinement of the men in
one area, while the women and children were forcibly transferred out of the Bosnian Serb held
territory, and the subsequent death of thousands of Bosnian Muslim civilian and military men, most
of whom clearly did not die in combat, demonstrate that a purposeful decision was taken by the
Bosnian Serb forces to target the Bosnian Muslim population in Srebrenica, by reason of their
membership in the Bosnian Muslim group. It remains to determine whether this discriminatory
attack sought to destroy the group, in whole or in part, within the meaning of Article 4 of the
Statute.
(b) Intent to destroy the group in whole or in part
(i) Intent to destroy
569. The Prosecution urges a broad interpretation of Article 4’s requirement of an intent to
destroy all or part of the group. It contends that the acts have been committed with the requisite
intent if “?the accusedg consciously desired ?hisg acts to result in the destruction, in whole or in part,
of the group, as such; or he knew his acts were destroying, in whole or in part, the group, as such; or
he knew that the likely consequence of his acts would be to destroy, in whole or in part, the group,
as such”.1264 The Prosecution is of the opinion that, in this case, General Krsti} and others
“consciously desired their acts to lead to the destruction of part of the Bosnian Muslim people as a
?…g group”.1265
1262 Report of the Secretary-General, para. 225.
1263 Supra, para. 33.
1264 Prosecutor’s pre-trial brief pursuant to Rule 65 ter(E)(i), 25 February 2000, para. 90.
1265 Ibid, para. 91, p. 33.
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570. Conversely, the Defence claims that the perpetrator of genocide must “have the specific
intent to destroy the ... group” and concludes that “the dolus specialis constitutes a higher form of
premeditation”.1266
571. The preparatory work of the Genocide Convention clearly shows that the drafters envisaged
genocide as an enterprise whose goal, or objective, was to destroy a human group, in whole or in
part. United Nations General Assembly resolution 96 (I) defined genocide as “the denial of the
right of existence of entire human groups”.1267 The draft Convention prepared by the Secretary-
General presented genocide as a criminal act which aims to destroy a group, in whole or in part,1268
and specified that this definition excluded certain acts, which may result in the total or partial
destruction of a group, but are committed in the absence of an intent to destroy the group.1269 The
International Law Commission upheld this interpretation and indicated that “a general intent to
commit one of the enumerated acts combined with a general awareness of the probable
consequences of such an act with respect to the immediate victim or victims is not sufficient for the
crime of genocide. The definition of this crime requires a particular state of mind or a specific
intent with respect to the overall consequence of the prohibited act”.1270 The International Court of
Justice insisted, in its Opinion on the Legality of the Threat or Use of Nuclear Weapons,1271 that
specific intent to destroy was required and indicated that “the prohibition of genocide would be
pertinent in this case if the recourse to nuclear weapons did indeed entail the element of intent,
towards a group as such, required by the provision quoted above”.1272 The ICTR adopted the same
interpretation. In The Prosecutor v. Jean Kambanda, the Trial Chamber stated: “the crime of
genocide is unique because of its element of dolus specialis (special intent) which requires that the
crime be committed with the intent ‘to destroy in whole or in part, a national, ethnic, racial or
1266 Final Submissions of the Accused, 21 June 2001, para. 94.
1267 UN Doc. A/96 (I), 11 December 1946 (Emphasis added).
1268 UN Doc. E/447 (1947), p. 20 “the word genocide means a criminal act directed against any one of the aforesaid
groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or
development”.
1269 UN Doc. E/447 (1947), p. 23. See also “Relations Between the Convention on Genocide on the One Hand and the
Formulation of the Nurnberg Principles and the Preparation of a Draft Code of Offences Against Peace and Security on
the Other”, UN Doc. E/AC.25/3/Rev.1, 12 April 1948, p. 6: “The destruction of the human group is the actual aim in
view. In the case of foreign or civil war, one side may inflict extremely heavy losses on the other but its purpose is to
impose its will on the other side and not to destroy it.”
1270 ILC Draft Code, p. 88 (emphasis added).
1271 ICJ Repors (1996), p. 240.
1272 Para. 26. The Chamber notes however that several dissenting opinions criticised the Opinion on the issue by holding
that an act whose foreseeable result was the destruction of a group as such and which did indeed cause the destruction
of the group did constitute genocide. In particular, Judge Weeramantry observes that the use of nuclear weapons
inevitably brings about the destruction of entire populations and constitutes, as such, genocide. He thus challenges the
interpretation that “there must be an intention to target a particular national, ethnical, racial or religious group qua such
group, and not incidentally to some other act” (Reports p. 502). In the same vein, Judge Koroma comments on “the
abhorrent shocking consequences that a whole population could be wiped out by the use of nuclear weapons during an
armed conflict”. He claims that such a situation constitutes genocide “if the consequences of the act could have been
foreseen” (Reports, p. 577).
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religious group as such’”.1273 In Kayishema, Ruzindana, the Trial Chamber also emphasised that
“genocide requires the aforementioned specific intent to exterminate a protected group (in whole or
in part)”.1274 Moreover, the Chamber notes that the domestic law of some States distinguishes
genocide by the existence of a plan to destroy a group.1275 Some legal commentators further
contend that genocide embraces those acts whose foreseeable or probable consequence is the total
or partial destruction of the group without any necessity of showing that destruction was the goal of
the act.1276 Whether this interpretation can be viewed as reflecting the status of customary
international law at the time of the acts involved here is not clear. For the purpose of this case, the
Chamber will therefore adhere to the characterisation of genocide which encompass only acts
committed with the goal of destroying all or part of a group.
572. Article 4 of the Statute does not require that the genocidal acts be premeditated over a long
period.1277 It is conceivable that, although the intention at the outset of an operation was not the
destruction of a group, it may become the goal at some later point during the implementation of the
operation. For instance, an armed force could decide to destroy a protected group during a military
operation whose primary objective was totally unrelated to the fate of the group. The Appeals
Chamber, in a recent decision, indicated that the existence of a plan was not a legal ingredient of the
crime of genocide but could be of evidential assistance to prove the intent of the authors of the
criminal act(s).1278 Evidence presented in this case has shown that the killings were planned: the
number and nature of the forces involved, the standardised coded language used by the units in
communicating information about the killings, the scale of the executions, the invariability of the
killing methods applied, indicate that a decision was made to kill all the Bosnian Muslim military
aged men.1279
573. The Trial Chamber is unable to determine the precise date on which the decision to kill all
the military aged men was taken. Hence, it cannot find that the killings committed in Poto~ari on
12 and 13 July 1995 formed part of the plan to kill all the military aged men. Nevertheless, the
Trial Chamber is confident that the mass executions and other killings committed from 13 July
onwards were part of this plan.
1273 ICTR 97-23-S, 4 September 1998 (hereinafter The “Kambanda Judgement”), para. 16.
1274 21 May 1999, para. 89.
1275 Article 211-1 of the French Criminal Code states that the crime must be committed “in the execution of a concerted
plan to destroy wholly or partially a group”.
1276 See in particular Eric David, Droit des conflits armés, p. 615; Alexander K.A. Greenawalt, “Rethinking genocidal
intent: the case for a knowledge-based interpretation”, Columbia Law Review, December 1999, pp. 2259-2294; Gil Gil
Derecho penal internacional, especial consideracion del delito de genicidio, 1999.
1277 The element of premeditation was dismissed at the proposal of Belgium (UN Doc. A/C.6/217) on the ground that
such a provision was superfluous in light of the special intent already incorporated into the definition of the crime (UN
Doc. A/C.6/SR.72, p. 8).
1278 Jelisi} Appeal Judgement, para. 48.
1279 Supra, para. 85-87.
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574. The manner in which the destruction of a group may be implemented so as to qualify as a
genocide under Article 4 must also be discussed. The physical destruction of a group is the most
obvious method, but one may also conceive of destroying a group through purposeful eradication of
its culture and identity resulting in the eventual extinction of the group as an entity distinct from the
remainder of the community.
575. The notion of genocide, as fashioned by Raphael Lemkin in 1944, originally covered all
forms of destruction of a group as a distinct social entity.1280 As such, genocide closely resembled
the crime of persecution. In this regard, the ILC stated, in its 1996 report, that genocide as currently
defined corresponds to the second category of crime against humanity established under Article 6(c)
of the Nuremberg Tribunal’s Statute, namely the crime of persecution.1281 There is consensus that
the crime of persecution provided for by the Statute of the Nuremberg Tribunal was not limited to
the physical destruction of the group but covered all acts designed to destroy the social and/or
cultural bases of a group. Such a broad interpretation of persecution was upheld inter alia in the
indictment against Ulrich Greifelt et al., before the United States Military Tribunal in Nuremberg.
The accused were charged with implementing a systematic programme of genocide which sought to
destroy foreign nations and ethnic groups. The indictment interpreted destruction to mean not only
the extermination of the members of those groups but also the eradication of their national
characteristics.1282 It should be noted that this interpretation was supported by the working group
established to report on the human rights violations in South Africa in 1985. While recognising that
the Convention literally covered only the physical or material destruction of the group, the report
explained that it was adopting a broader interpretation that viewed as genocidal any act which
prevented an individual "from participating fully in national life", the latter being understood "in its
more general sense".1283
576. Although the Convention does not specifically speak to the point, the preparatory work
points out that the “cultural” destruction of a group was expressly rejected after having been
seriously contemplated.1284 The notion of cultural genocide was considered too vague and too
1280 Axis Rule in Occupied Europe, p. 79, pp. 87-89.
1281 ILC Draft Code, op. cit., commentary of article 17, p. 106.
1282 USA v. Ulrich Greifelt et al, Trials of War Criminals, vol. XIV (1948), p. 2: “The acts, conduct, plans and
enterprises charged in Paragraph 1 of this Count were carried out as part of a systematic program of genocide, aimed at
the destruction of foreign nations and ethnic groups, in part by murderous extermination, and in part by elimination and
suppression of national characteristics”. See also the judgements rendered by the Polish Supreme Court against Amon
Leopold Goeth (Trials of War Criminals, vol. VII, no. 37, p. 8) and Rudolf Franz Ferdinand Hoess (Trials of War
Criminals, vol. VII, no. 38, p. 24).
1283 Violations of Human Rights in Southern Africa: Report of the Ad Hoc Working Group of Experts, UN Doc.
E/CN.4/1985/14, 28 January 1985, paras. 56 and 57.
1284 The notion of a cultural genocide was rejected by the General Assembly Sixth Committee by 25 votes to 6, with 4
abstentions and 13 delegations absent.
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removed from the physical or biological destruction that motivated the Convention. The ILC noted
in 1996:
As clearly shown by the preparatory work for the Convention, the destruction in question is the
material destruction of a group either by physical or by biological means, not the destruction of the
national, linguistic, religious, cultural or other identity of a particular group. The national or
religious element and the racial or ethnic element are not taken into consideration in the definition
of the word “destruction”, which must be taken only in its material sense, its physical or biological
sense.1285
577. Several recent declarations and decisions, however, have interpreted the intent to destroy
clause in Article 4 so as to encompass evidence relating to acts that involved cultural and other non
physical forms of group destruction.
578. In 1992, the United Nations General Assembly labelled ethnic cleansing as a form of
genocide.1286
579. The Federal Constitutional Court of Germany said in December 2000 that:
the statutory definition of genocide defends a supra-individual object of legal protection, i.e. the
social existence of the group ... the intent to destroy the group ... extends beyond physical and
biological extermination ... The text of the law does not therefore compel the interpretation that
the culprit’s intent must be to exterminate physically at least a substantial number of the members
of the group.1287
580. The Trial Chamber is aware that it must interpret the Convention with due regard for the
principle of nullum crimen sine lege. It therefore recognises that, despite recent developments,
customary international law limits the definition of genocide to those acts seeking the physical or
biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or
sociological characteristics of a human group in order to annihilate these elements which give to
that group its own identity distinct from the rest of the community would not fall under the
definition of genocide. The Trial Chamber however points out that where there is physical or
biological destruction there are often simultaneous attacks on the cultural and religious property and
symbols of the targeted group as well, attacks which may legitimately be considered as evidence of
an intent to physically destroy the group. In this case, the Trial Chamber will thus take into account
as evidence of intent to destroy the group the deliberate destruction of mosques and houses
belonging to members of the group.
1285 ILC Draft Code, pp. 90-91.
1286 UN Doc. AG/Res./47/121 of 18 December 1992.
1287 Federal Constitutional Court, 2 BvR 1290/99, 12 December 2000, para. (III)(4)(a)(aa). Emphasis added.
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(ii) “In part”
581. Since in this case primarily the Bosnian Muslim men of military age were killed, a second
issue is whether this group of victims represented a sufficient part of the Bosnian Muslim group so
that the intent to destroy them qualifies as an “intent to destroy the group in whole or in part” under
Article 4 of the Statute.
582. Invoking the work of the ILC and the Jelisi} Judgement, the Prosecution interprets the
expression “in whole or in part” to mean a “substantial” part in quantitative or qualitative terms.1288
However, the Prosecution states that “it is not necessary to consider the global population of the
group. The intent to destroy a multitude of persons because of their membership in a particular
group constitutes genocide even if these persons constitute only part of a group either within a
country or within a region or within a single community”.1289 The Prosecution relies on, inter alia,
the Akayesu Judgement which found the accused guilty of genocide for acts he committed within a
single commune and the Nikoli} Decision taken pursuant to Rule 61, which upheld the
characterisation of genocide for acts committed within a single region of Bosnia-Herzegovina, in
that case, the region of Vlasenica.1290 The Prosecution further cites the Jelisi} Judgement which
declared that “international custom admit?tedg the characterisation of genocide even when the
exterminatory intent only extend?edg to a limited geographic zone”.1291
583. The Defence contends that the term "in part" refers to the scale of the crimes actually
committed, as opposed to the intent, which would have to extend to destroying the group as such,
i.e. in its entirety.1292 The Defence relies for this interpretation on the intention of the drafters of the
Convention, which it contends was confirmed by the subsequent commentary of Raphael Lemkin in
1950 before the American Congress during the debates on the Convention's ratification1293 and by
the implementing legislation proposed by the United States during the Nixon and Carter
administrations.1294 That is, any destruction, even if only partial, must have been carried out with
the intent to destroy the entire group, as such.
1288 Prosecutor’s pre-trial brief pursuant to Rule 65 ter (E)(i), 25 February 2000, para. 100.
1289 Prosecutor’s pre-trial brief pursuant to Rule 65 ter (E)(i), 25 February 2000, para. 101.
1290 Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Decision of Trial Chamber I,
20 October 1995, IT-94-2-R61, para. 34.
1291 Jelisi} Judgement, para. 83.
1292 Final Submissions of the Accused, paras. 96-101.
1293 Letter of Raphael Lemkin published in “Executive Sessions of the U.S. Senate Foreign Relations Committee”,
Historical Series 781-805 (1976), p. 370, quoted in the Defence Final Trial Brief, para. 97. Raphael Lemkin explained
that partial destruction must target a substantial part in such a way that it affects the group as a whole.
1294 Senate Executive Report No. 23, 94th Cong., 2nd Session (1976), pp. 34-35.
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584. The Trial Chamber does not agree. Admittedly, by adding the term “in part”, some of the
Convention’s drafters may have intended that actual destruction of a mere part of a human group
could be characterised as genocide, only as long as it was carried out with the intent to destroy the
group as such.1295 The debates on this point during the preparatory work are unclear, however, and
a plain reading of the Convention contradicts this interpretation. Under the Convention, the term
''in whole or in part'' refers to the intent, as opposed to the actual destruction, and it would run
contrary to the rules of interpretation to alter the ordinary meaning of the terms used in the
Convention by recourse to the preparatory work which lacks clarity on the issue. The Trial
Chamber concludes that any act committed with the intent to destroy a part of a group, as such,
constitutes an act of genocide within the meaning of the Convention.
585. The Genocide Convention itself provides no indication of what constitutes intent to destroy
“in part”. The preparatory work offers few indications either. The draft Convention submitted by
the Secretary-General observes that “the systematic destruction even of a fraction of a group of
human beings constitutes an exceptionally heinous crime”.1296 Early commentaries on the
Genocide Convention opined that the matter of what was substantial fell within the ambit of the
Judges’ discretionary evaluation. Nehemia Robinson was of the view that the intent to destroy
could pertain to only a region or even a local community if the number of persons targeted was
substantial.1297 Pieter Drost remarked that any systematic destruction of a fraction of a protected
group constituted genocide.1298
586. A somewhat stricter interpretation has prevailed in more recent times. According to the
ILC, the perpetrators of the crime must seek to destroy a quantitatively substantial part of the
protected group:
1295 In this regard, see especially the commentary of the representative of the United Kingdom, Fitzmaurice, UN Doc.
A/C.6/SR. 73. The preparatory work is unclear on the issue. It does indeed seem that there was confusion between the
actus reus and the mens rea in this respect.
1296 Draft Convention for the Prevention and Punishment of Genocide presented by the Secretary-General, 26 June
1947, UN Doc. E/447, p. 24.
1297 Nehemia Robinson, The Genocide Convention, p. 63: “the intent to destroy a multitude of persons of the same
group must be classified as genocide even if these persons constitute only part of a group either within a country or
within a region or within a single community, provided the number is substantial”. The writer also noted before the
Foreign Relations Commission of the American Senate: “the intent to destroy a multitude of persons of the same group
must be classified as genocide even if these persons constitute only part of a group either within a country or within a
single community, provided the number is substantial because the aim of the convention is to deal with action against
large numbers, not individual events if they happen to possess the same characteristics. It will be up to the court to
decide in every case whether such intent existed” (The Genocide Convention - Its Origins and Interpretation, reprinted
in Hearings on the Genocide Convention Before a Subcomm. of the Senate Comm. on Foreign Relations, 81st Cong., 2nd
Sess., 487, 498 (1950) ).
1298 Pieter Drost, The Crime of State, Book II, Genocide, Sythoff, Leyden, p. 85: “Acts perpetrated with the intended
purpose to destroy various people as members of the same group are to be classified as genocidal crimes although the
victims amount to only a small part of the entire group present within the national, regional or local community”.
206
Case No.: IT-98-33-T 2 August 2001
It is not necessary to intend to achieve the complete annihilation of a group from every corner of
the globe. None the less the crime of genocide by its very nature requires the intention to destroy
at least a substantial part of a particular group.1299
The Kayishema and Ruzindana Judgement stated that the intent to destroy a part of a group must
affect a “considerable” number of individuals.1300 The Judgement handed down on Ignace
Bagilishema, on 7 June 2001, also recognised that the destruction sought must target at least a
substantial part of the group.1301
587. Benjamin Whitaker's 1985 study on the prevention and punishment of the crime of genocide
holds that the partial destruction of a group merits the characterisation of genocide when it concerns
a large portion of the entire group or a significant section of that group.
'In part' would seem to imply a reasonably significant number, relative to the total of the group as
a whole, or else a significant section of a group, such as its leadership.1302
The “Final Report of the Commission of Experts established pursuant to Security Council
resolution 780 (1992)” (hereinafter “ Report of the Commission of Experts”) confirmed this
interpretation, and considered that an intent to destroy a specific part of a group, such as its
political, administrative, intellectual or business leaders, “may be a strong indication of genocide
regardless of the actual numbers killed”. The report states that extermination specifically directed
against law enforcement and military personnel may affect “a significant section of a group in that
it renders the group at large defenceless against other abuses of a similar or other nature”.
However, the Report goes on to say that “the attack on the leadership must be viewed in the context
of the fate of what happened to the rest of the group. If a group suffers extermination of its
leadership and in the wake of that loss, a large number of its members are killed or subjected to
other heinous acts, for example deportation, the cluster of violations ought to be considered in its
entirety in order to interpret the provisions of the Convention in a spirit consistent with its
purpose”.1303
588. Judge Elihu Lauterpacht, the ad hoc Judge nominated by Bosnia-Herzegovina in the case
before the International Court of Justice regarding the application of the Convention on the
1299 Ibid., p. 89.
1300 Kayishema and Ruzindana case, para. 97: “'in part' requires the intention to destroy a considerable number of
individuals who are part of the group”.
1301 The Prosecutor v. Ignace Bagilishema, case no. ICTR-95-1A-T, 7 June 2001 (hereinafter “Bagilishema Judgement”)
para. 64: “Although the destruction sought need not be directed at every member of the targeted group, the Chamber
considers that the intention to destroy must target at least a substantial part of the group”.
1302 Para. 29.
1303 Report of the Commission of Experts, UN Doc. S/1994/674, para. 94 (emphasis added).
207
Case No.: IT-98-33-T 2 August 2001
Prevention and Punishment of the Crime of Genocide, spoke similarly in his separate opinion.1304
Judge Lauterpacht observed that the Bosnian Serb forces had murdered and caused serious mental
and bodily injury to the Bosnian Muslims and had subjected the group to living conditions meant to
bring about its total or partial physical destruction. He went on to take into account “the forced
migration of civilians, more commonly known as ‘ethnic cleansing’” in order to establish the intent
to destroy all or part of the group. In his view, this demonstrated the Serbs’ intent “to eliminate
Muslim control of, and presence in, substantial parts of Bosnia-Herzegovina”. Judge Lauterpacht
concluded that the acts which led to the group's physical destruction had to be characterised as “acts
of genocide” since they were “directed against an ethnical or religious group as such, and they
were intended to destroy that group, if not in whole certainly in part, to the extent necessary to
ensure that that group would no longer occupy the parts of Bosnia-Herzegovina coveted by the
Serbs”.1305
589. Several other sources confirm that the intent to eradicate a group within a limited
geographical area such as the region of a country or even a municipality may be characterised as
genocide. The United Nations General Assembly characterised as an act of genocide the murder of
approximately 800 Palestinians1306 detained at Sabra and Shatila, most of whom were women,
children and elderly.1307 The Jelisi} Judgement held that genocide could target a limited geographic
zone.1308 Two Judgements recently rendered by German courts took the view that genocide could
be perpetrated within a limited geographical area. The Federal Constitutional Court of Germany, in
the Nikola Jorgi} case, upheld the Judgement of the Düsseldorf Supreme Court,1309 interpreting the
intent to destroy the group “in part” as including the intention to destroy a group within a limited
geographical area.1310 In a Judgement against Novislav Djaji} on 23 May 1997, the Bavarian
1304 Application of the Convention of the Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina v.
Yugoslavia (Serbia and Montenegro), Order on further Requests for the Indication of Provisional Measures, ICJ
Reports (1993), pp. 325- 795.
1305 Separate Opinion of Judge Lauterpacht, ICJ Reports (1993), p. 431.
1306 There are varying estimates as to the number of victims. The Israeli commission of inquiry put the number of
victims at 800. However, according to the ICRC, no less than 2,400 people were massacred. The massacre was
perpetrated over two days, on 16 and 17 September 1982.
1307 UN Doc. AG/Res.37/123D (16 December 1982), para. 2. It should however be noted that the resolution was not
adopted unanimously, notably, the paragraph characterising the massacre as an act of genocide was approved by 98
votes to 19, with 23 abstentions. See UN Doc. A/37/PV.108, para. 151.
1308 Jelisi} Judgement, para. 83.
1309 Düsseldorf Supreme Court, Nikola Jorgi} case, 30 April 1999, 3StR 215/98.
1310 Federal Constitutional Court, 2BvR 1290/99, 12 December 2000, par. 23: “The courts also do not go beyond the
possible meaning of the text by accepting that the intent to destroy may relate to a geographically limited part of the
group. There is support for that interpretation in the fact that STGB para. 220a the national law integrating the
Convention penalises the intent to destroy partially as well as entirely”.
208
Case No.: IT-98-33-T 2 August 2001
Appeals Chamber similarly found that acts of genocide were committed in June 1992 though
confined within the administrative district of Fo~a.1311
590. The Trial Chamber is thus left with a margin of discretion in assessing what is destruction
“in part” of the group. But it must exercise its discretionary power in a spirit consonant with the
object and purpose of the Convention which is to criminalise specified conduct directed against the
existence of protected groups, as such. The Trial Chamber is therefore of the opinion that the intent
to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as
opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide
need not seek to destroy the entire group protected by the Convention, they must view the part of
the group they wish to destroy as a distinct entity which must be eliminated as such. A campaign
resulting in the killings, in different places spread over a broad geographical area, of a finite number
of members of a protected group might not thus qualify as genocide, despite the high total number
of casualties, because it would not show an intent by the perpetrators to target the very existence of
the group as such. Conversely, the killing of all members of the part of a group located within a
small geographical area, although resulting in a lesser number of victims, would qualify as genocide
if carried out with the intent to destroy the part of the group as such located in this small
geographical area. Indeed, the physical destruction may target only a part of the geographically
limited part of the larger group because the perpetrators of the genocide regard the intended
destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue.
In this regard, it is important to bear in mind the total context in which the physical destruction is
carried out.
591. The parties have presented opposing views as to whether the killings of Bosnian Muslim
men in Srebrenica were carried out with intent to destroy a substantial part of the Bosnian Muslim
group. It should be recalled that the Prosecution at different times has proposed different
definitions of the group in the context of the charge of genocide. In the Indictment, as in the
submission of the Defence, the Prosecution referred to the group of the Bosnian Muslims, while in
the final brief and arguments it defined the group as the Bosnian Muslims of Srebrenica or the
Bosnian Muslims of Eastern Bosnia. The Trial Chamber has previously indicated that the protected
group, under Article 4 of the Statue, should be defined as the Bosnian Muslims.
592. The Prosecution first argues that “causing at least 7,475 deaths of mainly Bosnian Muslim
men in Srebrenica, the destruction of this part of the group, which numbered in total approximately
1311 Bavarian Appeals Court, Novislav Djaji} case, 23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation.
209
Case No.: IT-98-33-T 2 August 2001
38,000 to 42,000 prior to the fall”,1312 constitutes a substantial part of the group not only because it
targeted a numerically high number of victims, but also because the victims represented a
significant part of the group. It was common knowledge that the Bosnian Muslims of Eastern
Bosnia constituted a patriarchal society in which men had more education, training and provided
material support to their family. The Prosecution claims that the VRS troops were fully cognisant
that by killing all the military aged men, they would profoundly disrupt the bedrock social and
cultural foundations of the group. The Prosecution adds that the mass executions of the military
aged men must be viewed in the context of what occurred to the remainder of the Srebrenica group.
The offensive against the safe area aimed to ethnically cleanse the Bosnian Muslims1313 and
progressively culminated in the murder of the Bosnian Muslim men as well as the evacuation of the
women, children and elderly.1314 In the Prosecution’s view, the end result was purposeful, as shown
by the longstanding plan of Republika Sprska to eliminate the Bosnian Muslims from the area.
Specifically, Radovan Karadzi}, in Directive 7 of 7 March 1995,1315 ordered the Drina Corps to
“?...g create an unbearable situation of total insecurity with no hope of further survival or life for the
inhabitants of Srebrenica and @epa”.1316 General Krsti} and his superiors also manifested genocidal
intent by using inflammatory rhetoric and racist statements that presented the VRS as defending the
Serbian people from a threat of genocide posed by “Ustasha-Muslim hords”.1317 According to the
Prosecution, “by killing the leaders and defenders of the group and deporting the remainder of it,
the VRS and General Krsti} had assured that the Bosnian Muslim community of Srebrenica and its
surrounds would not return to Srebrenica nor would it reconstitute itself in that region or indeed,
anywhere else”.1318 The Prosecution points us to the terrible impact the events of 11-16 July had
upon the Bosnian Muslim community of Srebrenica : “what remains of the Srebrenica community
survives in many cases only in the biological sense, nothing more. It’s a community in despair; it’s
a community clinging to memories; it’s a community that is lacking leadership; it’s a community
that’s a shadow of what it once was”.1319 The Prosecution concludes that “the defendant’s crimes
have not only resulted in the death of thousands men and boys, but have destroyed the Srebrenica
Muslim community”.1320
593. The Defence argues in rejoinder that, “although the desire to condemn the acts of the
Bosnian Serb Army at Srebrenica in the most pejorative terms is understandably strong”, these acts
1312 Prosecutor’s final Trial Brief, para. 412.
1313 Prosecutor’s final Trial Brief, para. 420.
1314 Prosecutor’s final Trial Brief, para. 423.
1315 P425.
1316 cited in the Prosecutor’s final Trial Brief, para. 425.
1317 P750, cited in the Prosecutor’s final Trial Brief, para. 416.
1318 Prosecutor’s final Trial Brief, para. 438.
1319 T. 10004-10005.
1320 Closing arguments, T. 10009.
210
Case No.: IT-98-33-T 2 August 2001
do not fall under the legal definition of genocide because it was not proven that they were
committed with the intent to destroy the group as an entity.1321 First, the killing of up to 7,500
members of a group, the Bosnian Muslims, that numbers about 1,4 million people, does not
evidence an intent to destroy a “substantial” part of the group. To the Defence, the 7,500 dead are
not even substantial when compared to the 40,000 Bosnian Muslims of Srebrenica.1322 The
Defence also points to the fact that the VRS forces did not kill the women, children and elderly
gathered at Poto~ari but transported them safely to Kladanj, as opposed to all other genocides in
modern history, which have indiscriminately targeted men, women and children.1323 The Defence
counters the Prosecution’s submission that the murder of all the military aged men would constitute
a selective genocide, as the VRS knew that their death would inevitably result in the destruction of
the Muslim community of Srebrenica as such.1324 According to the Defence, had the VRS actually
intended to destroy the Bosnian Muslim community of Srebrenica, it would have killed all the
women and children, who were powerless and already under its control, rather than undertaking the
time and manpower consuming task of searching out and eliminating the men of the column.1325
The Defence rejects the notion that the transfer of the women, children and elderly can be viewed
cynically as a public relations cover-up for the planned execution of the men. First, it says the
decision to transfer the women, children and elderly was taken on 11 July, i.e. before the VRS
decided to kill all the military aged men. Further, the Defence points out, by the time the
evacuation started, the world community was already aware of, and outraged by, the humanitarian
crisis caused by the VRS in Srebrenica, and the VRS was not concerned with covering up its true
intentions.1326 The Defence also argues that the VRS would have killed the Bosnian Muslims in
@epa, a neighbouring enclave, as well, if its intent was to kill the Bosnian Muslims as a group.1327
Furthermore, the Defence claims that none of the military expert witnesses “could attribute the
killings to any overall plan to destroy the Bosnian Muslims as a group”.1328 To the Defence, a true
genocide is almost invariably preceded by propaganda that calls for killings of the targeted group
and nothing similar occurred in the present case. Inflammatory public statements made by one
group against another – short of calling for killings - are common practice in any war and cannot be
taken as evidence of genocidal intent.1329 The Defence argues that, despite the unprecedented
access to confidential material obtained by the Prosecution, none of the documents submitted, not
even the intercepted conversations of VRS Army officers involved in the Srebrenica campaign,
1321 Final Submissions of the Accused, para. 131.
1322 Closing arguments, T. 10113.
1323 Final Submissions of the Accused, para. 133.
1324 Closing arguments, T. 10118.
1325 Closing arguments, T. 10118.
1326 Closing arguments, T. 10118-10119.
1327 Final Submissions of the Accused, paras. 141-145.
1328 Final Submissions of the Accused, para. 156.
211
Case No.: IT-98-33-T 2 August 2001
show an intent to destroy the Bosnian Muslims as a group.1330 The Defence contends that the facts
instead prove that the VRS forces intended to kill solely all potential fighters in order to eliminate
any future military threat. The wounded men were spared.1331 More significantly, 3,000 members
of the column were let through after a general truce was concluded between the warring parties.1332
The Defence concludes that the killings were committed by a small group of individuals within a
short period of time as a retaliation for failure to meet General Mladi}’s demand of surrender to the
VRS of the BiH Army units in the Srebrenica area. The Defence recognises that “the consequences
of the killings of 7,500 people on those who survived are undoubtedly terrible”. However, it argues
that these consequences would remain the same, regardless of the intent underlying the killings and
thus “do not contribute to deciding and determining what the true intent of the killing was”.1333 The
Defence concludes that “there is no proof and evidence upon which this Trial Chamber could
conclude beyond all reasonable doubt that the killings were carried out with the intent to destroy, in
whole or in part, the Bosnian Muslims as an ethnic group”.1334
594. The Trial Chamber concludes from the evidence that the VRS forces sought to eliminate all
of the Bosnian Muslims in Srebrenica as a community. Within a period of no more than seven
days, as many as 7,000- 8,000 men of military age were systematically massacred while the
remainder of the Bosnian Muslim population present at Srebrenica, some 25,000 people, were
forcibly transferred to Kladanj. The Trial Chamber previously described how the VRS attempted to
kill all the Bosnian Muslim men of military age, regardless of their civilian or military status;
wounded men were spared only because of the presence of UNPROFOR and the portion of the
column that managed to get through to government-held territory owed its survival to the fact that
the VRS lacked the military resources to capture them.
595. Granted, only the men of military age were systematically massacred, but it is significant
that these massacres occurred at a time when the forcible transfer of the rest of the Bosnian Muslim
population was well under way. The Bosnian Serb forces could not have failed to know, by the
time they decided to kill all the men, that this selective destruction of the group would have a
lasting impact upon the entire group. Their death precluded any effective attempt by the Bosnian
Muslims to recapture the territory. Furthermore, the Bosnian Serb forces had to be aware of the
catastrophic impact that the disappearance of two or three generations of men would have on the
1329 Final Submissions of the Accused, para. 161, Closing arguments, T. 10129.
1330 Final Submissions of the Accused, para. 157, 166.
1331 Closing arguments, T. 10120.
1332 Final Submissions of the Accused, paras. 146-147.
1333 Closing arguments, T. 10139.
1334 Closing arguments, T. 10140.
212
Case No.: IT-98-33-T 2 August 2001
survival of a traditionally patriarchal society, an impact the Chamber has previously described in
detail.1335 The Bosnian Serb forces knew, by the time they decided to kill all of the military aged
men, that the combination of those killings with the forcible transfer of the women, children and
elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at
Srebrenica. Intent by the Bosnian Serb forces to target the Bosnian Muslims of Srebrenica as a
group is further evidenced by their destroying homes of Bosnian Muslims in Srebrenica and
Poto~ari1336 and the principal mosque in Srebrenica soon after the attack.1337
596. Finally, there is a strong indication of the intent to destroy the group as such in the
concealment of the bodies in mass graves, which were later dug up, the bodies mutilated and
reburied in other mass graves located in even more remote areas, thereby preventing any decent
burial in accord with religious and ethnic customs and causing terrible distress to the mourning
survivors, many of whom have been unable to come to a closure until the death of their men is
finally verified.
597. The strategic location of the enclave, situated between two Serb territories, may explain why
the Bosnian Serb forces did not limit themselves to expelling the Bosnian Muslim population. By
killing all the military aged men, the Bosnian Serb forces effectively destroyed the community of
the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever reestablish
itself on that territory.1338
598. The Chamber concludes that the intent to kill all the Bosnian Muslim men of military age in
Srebrenica constitutes an intent to destroy in part the Bosnian Muslim group within the meaning of
Article 4 and therefore must be qualified as a genocide.
599. The Trial Chamber has thus concluded that the Prosecution has proven beyond all
reasonable doubt that genocide, crimes against humanity and violations of the laws or customs of
war were perpetrated against the Bosnian Muslims, at Srebrenica, in July 1995. The Chamber now
proceeds to consider the criminal responsibility of General Krsti} for these crimes in accordance
with the provisions of Article 7 of the Statute.
1335 Supra, paras. 90-94.
1336 Supra, paras. 41, 123, 153.
1337 It was eventually turned into a parking lot. P4/4 to P4/6; Ruez, T. 542-543.
1338 See Witness Halilovi}, Supra para. 94.
Annex 994
Prosecutor v. Kunarac et al., Case No it-96-23/1-A, Appeals Judgment (12 June 2002)
UNITED
NATIONS
Case No.:
IT-96-23&
IT-96-23/1-A
Date: 12 June 2002
International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations of
International Humanitarian Law
Committed in the Territory of the
Former Yugoslavia since 1991 Original: French
IN THE APPEALS CHAMBER
Before: Judge Claude Jorda, Presiding
Judge Mohamed Shahabuddeen
Judge Wolfgang Schomburg
Judge Mehmet Güney
Judge Theodor Meron
Registrar:
Judgement of:
Mr. Hans Holthuis
12 June 2002
PROSECUTOR
V
DRAGOLJUB KUNARAC
RADOMIR KOVAC
AND
ZORAN VUKOVIC
JUDGEMENT
Counsel for the Prosecutor:
Mr. Anthony Carmona
Ms. Norul Rashid
Ms. Susan Lamb
Ms. Helen Brady
Counsel for the Accused:
Mr. Slavi{a Prodanovic and Mr. Dejan Savatic for the accused Dragoljub Kunarac
Mr. Momir Kolesar and Mr. Vladimir Rajic for the accused Radomir Kovac
Mr. Goran Jovanovic and Ms. Jelena Lopicic for the accused Zoran Vukovic
44
Trial Chamber reasonably concluded that the Appellant Vukovic intended to discriminate against
his victim because she was Muslim.191 She further submits that, in this case, all the acts of torture
could be considered to be discriminatory, based on religion, ethnicity or sex.192 Moreover, all the
acts of sexual torture perpetrated on the victims resulted in their intimidation or humiliation.193
2. Discussion
(a) The Definition of Torture by the Trial Chamber
142. With reference to the Torture Convention 194 and the case-law of the Tribunal and the ICTR,
the Trial Chamber adopted a definition based on the following constitutive elements: 195
(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.
(ii) The act or omission must be intentional.
(iii) The act or omission must aim at obtaining information or a confession, or at punishing,
intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the
victim or a third person.
143. The Trial Chamber undertook a comprehensive study of the crime of torture, including the
definition which other Chambers had previously given,196 and found the Appellant Kunarac197 and
the Appellant Vukovi}198 guilty of the crime of torture. The Trial Chamber did not, however, have
recourse to a decision of the Appeals Chamber rendered seven months earlier199 which addressed
the definition of torture.200
191 Ibid.
192 Prosecution Conso lidated Respondent’s Brief, para 6.145. According to the Prosecutor, the evidence, in particular
the discriminatory statements, establish that FWS-75 was tortured with the purpose of humiliating her because she
was a Muslim woman: see Prosecution Consolidated Respondent’s Brief, para 6.146.
193 Prosecution Consolidated Respondent’s Brief, para 6.145.
194 Article 1 of the Torture Convention: “For the purposes of this Convention, torture means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.”
195 Trial Judgement, para 497.
196 Ibid., paras 465-497. The Chamber concurs with, in particular, the quite complete review carried out in the ^elebi}i
and Furund`ija cases where torture was not prosecuted as a crime against humanity.
197 Counts 1 (crime against humanity), 3 and 11 (violation of the laws or customs of war), Trial Judgement, para 883.
198 Counts 33 (crime against humanity) and 35 (violation of the laws or customs of war), Trial Judgement, para 888.
199 Furund`ija Appeal Judgement.
200 In the Aleksovski Appeal Judgement at para 113 it was stated “that a proper construction of the Statute requires that
the ratio decidendi of its decisions is binding on Trial Chambers.”
45
144. The Appeals Chamber largely concurs with the Trial Chamber’s definition but wishes to
hold the following.
145. First, the Appeals Chamber wishes to provide further clarification as to the nature of the
definition of torture in customary international law as it appears in the Torture Convention, in
particular with regard to the participation of a public official or any other person acting in a nonprivate
capacity. Although this point was not raised by the parties, the Appeals Chamber finds that
it is important to address this issue in order that no controversy remains about this appeal or its
consistency with the jurisprudence of the Tribunal.
146. The definition of the crime of torture, as set out in the Torture Convention, may be
considered to reflect customary international law.201 The Torture Convention was addressed to
States and sought to regulate their conduct, and it is only for that purpose and to that extent that the
Torture Convention deals with the acts of individuals acting in an official capacity. Consequently,
the requirement set out by the Torture Convention that the crime of torture be committed by an
individual acting in an official capacity may be considered as a limitation of the engagement of
States; they need prosecute acts of torture only when those acts are committed by “a public
official...or any other person acting in a non-private capacity.” So the Appeals Chamber in the
Furund`ija case was correct when it said that the definition of torture in the Torture Convention,
inclusive of the public official requirement, reflected customary international law.202
147. Furthermore, in the Furund`ija Trial Judgement, the Trial Chamber noted that the definition
provided in the Torture Convention related to “the purposes of the Convention”.203 The accused
in that case had not acted in a private capacity, but as a member of armed forces during an armed
conflict, and he did not question that the definition of torture in the Torture Convention reflected
customary international law. In this context, and with the objectives of the Torture Convention in
mind, the Appeals Chamber in the Furund`ija case was in a legitimate position to assert that “at
least one of the persons involved in the torture process must be a public official or must at any rate
act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding
201 See Furund`ija Appeal Judgement, para 111; ^elebi}i Trial Judgement, para 459; Furund`ija Trial Judgement, para
161 and Trial Judgement, para 472. The ICTR comes to the same conclusion: see Akayesu Trial Judgement, para
593. It is interesting to note that a similar decision was rendered very recently by the German Supreme Court (BGH
St volume 46, p 292, p 303).
202 Furund`ija Appeal Judgement, para 111: “The Appeals Chamber supports the conclusion of the Trial Chamber that
“there is now general acceptance of the main elements contained in the definition set out in Article 1 of the Torture
Convention ?Furund`ija Trial Judgement, para 161g and takes the view that the definition given in Article 1 ?of the
said Conventiong reflects customary international law.”
203 Furund`ija Trial Judgement, para 160, quoting Article 1 of the Torture Convention.
Annex 995
Prosecutor v. Semanza, Case No. ICTR-97-20-T, Trial Judgment (15 May 2003)
ic7&-7-20-7
15-s-2003
(744 7260
International Criminal Tribunal for Rwanda
Tribunal P~nal International pour le Rwanda
TRIAL CHAMBER III
Original: English
Before Judges:
Registrar:
Judgement of:
Yakov Ostrovsky, Presiding
Lloyd G. Williams, QC
Pavel Dolenc
AdamaDieng
15 May2003
THE PROSECUTOR
v.
LAURENT SEMANZA
Case No. ICTR-97-20-T
JUDGEMENT AND SENTENCE
..
'
H
%
!} .o
Counsel for the Prosecution:
Chile Eboe-Osuji
Counsel for the Defence:
Charles Acheleke Taku
Sadikou Ayo Alao
The Prosecutor v. Laurent Semanza, Case No. ICTR-97.20.T
I. Mens Rea
93
31 l. ln order to find an accused guilty of the crime of genocide it must be proved
that he possessed the requisite mens rea of the genocidal acts listed in Article 2 of the
Statue. Accordingly, it must be demonstrated that the alleged perpetrator committed
any of the enumerated acts with the intent to destroy, in whole or in part, a group, as
such, that is defined by one of the protected categories, nationality, race, ethnicity or
religion.
312. The determination of mens rea in the case of genocide requires the following:
firstly, it must be established that a person, who killed or caused serious bodily or
mental harm to another person, did so on the basis of the victim's membership in a
protected group; secondly, it must be established that the perpetrator's intent was to
destroy that group as such in whole or in part.
313. A perpetrator's mens rea may be inferred from his actions. While noting the
inherent difficulty of finding an accused's genocidal intent in the absence of a
confession or other admissions, the Akayesu Judgement presents various factors that a
Chamber may examine to infer the accused's mental state:
[It is possible to deduce the genocidal intent inherent in a particular act charged
from the general context of the perpetration of other culpable acts systematically
directed against that same group, whether these acts were committed by the same
offender or by others. Other factors, such as the scale of atrocities committed,
their general nature, in a region or a country, or furthermore, the fact of
deliberately and systematically targeting victims on account of their membership
of a particular group, while excluding the members of other groups, can enable
the Chamber to infer the genocidal intent of a particular aet""
314. The Chamber adopts the methods enumerated in Akayesu for assessing the
specific genocidal intent of an accused.
statute, art. 2(2). See Ntakirutimana, Judgement, TC, para. 784; Bagilishema, Judgement, TC, paras.
60-61; Musema, Judgement, TC, para. 164; Rutaganda, Judgement, TC, para. 49; Kayishema and
Ruzindana, Judgement, TC, para. 91; Akayesu, Judgement, TC, para. 517.
" 4ayesu, Judgement, TC, para. 523. See also Bagilishema, Judgement, TC, paras. 62-63; Musema,
Judgement, TC, paras. 166-167; Rutaganda, Judgement, TC, paras. 61-63; Kayishema and Ruzindana,
Judgement, TC, para. 93; Jelisic, Judgement, TC, para. 73.
6
The Prosecutor v. Laurent Semanza, Case No. ICTR.97-20-T
a. "To Destroy"
94
733
315. Article 2 of the Statute indicates that the perpetrator must be shown to have
committed the enumerated prohibited acts with the intent to "destroy" a group. The
drafters of the Genocide Convention, from which the Tribunal's Statute borrows the
definition of genocide verbatim, unequivocally chose to restrict the meaning of
"destroy" to encompass only acts that amount to physical or biological genocide.535
b. "In Whole or in Part"
316. Although there is no numenc threshold of victims necessary to establish
genocide, the Prosecutor must prove beyond a reasonable doubt that the perpetrator
acted with the intent to destroy the group as such, in whole or in pant." Te intention
to destroy must be, at least, to destroy a substantial part of the group.
c. Protected Groups
317. The Statute of the Tribunal does not provide any insight into whether the
group that is the target of an accused's genocidal intent is to be detennined by
objective or subjective criteria or by some hybrid formulation. The various Trial
Chambers of this Tribunal have found that the determination of whether a group
comes within the sphere of protection created by Article 2 of the Statute ought to be
assessed on a case-by-case basis by reference to the objective particulars of a given
social or historical context, and by the subjective perceptions of the perpetrators. 3°
The Chamber finds that the determination of a protected group is to be made on a
case-by-case basis, consulting both objective and subjective criteria.
peport of the International Law Commission on the Work of its Forty-Eighth Session 6 May - 26
July 1996, UN GAOR International Law Commission, 51st Sess., Supp. No. 10, p. 90, UN Doc.
A/51/10 (1996) ("As clearly shown by the preparatory work for the Convention, the destruction in
question is the material destruction of a group either by physical or by biological means, not the
destruction of the national, linguistic, religious, cultural or other identity of a particular group.").
Bagilishema, Judgement, TC, para. 58; Musema, Judgement, TC, para. 165; Rutaganda, Judgement,
TC, para. 60; Kayishema and Ruzindana, Judgement, TC, paras. 95, 96, 98; Akayesu, Judgement, TC,
para. 521.
Bagilishema, Judgement, TC, para. 64.
8 gee, e.g., Bagilishema, Judgement, TC, para. 65; Musema, Judgement, TC, paras. 161-163;
Rutaganda, Judgement, TC, paras. 56-58; Kayishema and Ruzindana, Judgement, TC, para. 98;
Akayesu, Judgement, TC, para. 702. See also Jelisic, Judgement, TC, paras. 69-72 (using a subjective
approach to determine definition of a group while holding that the intent of the drafters of the Genocide
convention was that groups were to be defined objectively).
Annex 996
Prosecutor v. Kajelijeli, Case No. ICTR-98-44A, Trial Judgment (1 December 2003)
International Criminal Tribunal for Rwanda
Tribunal Pénal International pour le Rwanda
UNITED NATIONS
NATIONS UNIES
TRIAL CHAMBER II
Original: English
Before Judges: William H. Sekule, Presiding
Winston C. Matanzima Maqutu
Arlette Ramaroson
Registrar: Adama Dieng
Judgment of: 1 December 2003
THE PROSECUTOR
v.
Juvénal KAJELIJELI
Case No. ICTR-98-44A-T
JUDGMENT AND SENTENCE
Counsel for the Prosecution:
Ifeoma Ojemeni
Counsel for the Defence:
Lennox S. Hinds
Nkeyi M. Bompaka
The Prosecutor v. J. Kajelijeli Judgment and Sentence
179
the intent of the perpetrator to destroy the target group in whole or in part, there is no
numeric threshold of victims necessary to establish genocide.1047
810. The Kayishema and Ruzindana Trial Chamber quoted the Report of the Sub-
Commission on Genocide where the Special Rapporteur stated that, “[t]he relative
proportionate scale of the actual or attempted destruction of a group, by any act listed in
Articles II and III of the Genocide Convention, is strong evidence to prove the necessary
intent to destroy a group in whole or in part.”1048
Protected groups
811. It is required to show under Article 2 that the Accused, in committing genocide
intended to destroy ‘a national, ethnical, racial or religious’ group. Trial Chambers of this
Tribunal have noted that the said concept enjoys no generally or internationally accepted
definition, rather each concept must be assessed in the light of a particular political, social,
historical and cultural context.1049 Accordingly, “[f]or purposes of applying the Genocide
Convention, membership of a group is, in essence, a subjective rather than an objective
concept [where] the victim is perceived by the perpetrator of genocide as belonging to a
group slated for destruction.”1050 A determination of the categorized groups should be
made on a case-by-case basis, by reference to both objective and subjective criteria.1051
The acteus reus
812. The acteus reus for the crime of genocide is provided for under Article 2(2) of the
Statute. As the issues arising in the present case are so limited, the Chamber shall only
review the meaning of the requirements: (a) “killing members of the group”; and (b)
“causing serious bodily or mental harm to members of the group”.
o Killing Members of the Group
813. It is clear from judgments of this Tribunal that in order to be held liable for
genocide by killing members of the group, the Prosecutor must show that the perpetrator,
killed one or more members of the group, while the perpetrator possessed an intent to
destroy the group, as such, in whole or in part. Given that the element of mens rea in the
killing has been addressed in the special intent for genocide, there is no requirement to
prove a further element of premeditation in the killing.1052 An analysis or the case law of
this Tribunal also requires the evidence to show that such victim or victims either (a)
1047 Semanza, Judgment (TC), para. 316.
1048 Kayishema and Ruzindana, Judgment (TC), para. 93.
1049Bagilishema, Judgment (TC), para. 65; Musema, Judgment (TC), para. 161.
1050Rutaganda, Judgment (TC), para. 56; Musema, Judgment (TC), para. 161; Semanza, Judgment (TC), para. 317.
1051 Semanza, Judgment (TC), para. 317.
1052 Semanza,Judgment (TC), para. 319; Bagilishema, Judgment (TC), para. 55, 57 and 58; Musema, Judgment (TC),
para. 155; Rutaganda, Judgment (TC), para. 49 and 50; Kayishema and Ruzindana, Judgment (TC), para. 103 ;
Kayishema and Ruzindana, Judgment (AC), para. 151; Akayesu, Judgment (TC), para. 501.
Annex 997
Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Trial Judgment (22 January 2004)
OR: ENG
TRIAL CHAMBER II
Before:
Judge William H. Sekule, Presiding
Judge Winston C. Matanzima Maqutu
Judge Arlette Ramaroson
Registrar: Adama Dieng
Date: 22 January 2004
The PROSECUTOR
v.
Jean de Dieu KAMUHANDA
Case No. ICTR-95-54A-T
Table of Contents
PART I - Introduction 4
A. The Tribunal and its Jurisdiction 4
B. Procedural Background 5
C. Evidentiary Matters 9
D. Witness Protection Issues 13
PART II – The Defence Case 14
A. Introduction 14
B. Vagueness of the Indictment 14
C. In and out of Court Identification of the Accused by the Prosecution. 17
D. The Defence Contention that the Citizens of Gikomero Were Surprised by the Attacks
and That the Assailants Came from Rubungo. 18
E. Defence Contention that Prosecution Witnesses Bore False Testimony against the
Accused and That the Charges against the Accused are Fabrication 19
F. The Alleged Influence of the Accused. 20
(:a., 1<{,.\ International Criminal Tribunal for Rwanda
kl;/mow»eowaea+or soowe moo»
r'
his words and deeds and his actual purposeful conduct, especially when his intention is
not clear from what he says or does.
To Destroy
627. An Accused may be liable under Article 2 if he “intends to destroy a […] group.”
According to the Report of the International Law Commission, destruction within the
meaning of Article 2 is “[t]he material destruction of a group either by physical and
biological means and not the destruction of the national, linguistic, religious, cultural or
other identity of a particular group.”
In Whole or in Part
628. Under Article 2, an accused may be liable if he “intends to destroy in whole or in
part a […] group.” As has been explained in judgments of this Tribunal, in order to
establish an intent to destroy “in whole or in part”, it is not necessary to show that the
perpetrator intended to achieve the complete annihilation of a group from every corner of
the globe. It is sufficient to prove that the perpetrator have intended to destroy more than
an imperceptible number of the targeted group. In effect, the Chamber endorses the
opinion expressed in the Semanza Judgment: the Prosecution must establish, beyond
reasonable doubt, the intent of the perpetrator to destroy the target group in whole or in
part, there is no numeric threshold of victims necessary to establish genocide.
629. In the Report of the Sub-Commission on Genocide, the Special Rapporteur stated:
“The relative proportionate scale of the actual or attempted destruction of a group, by any
act listed in Articles II and III of the Genocide Convention, is strong evidence to prove
the necessary intent to destroy a group in whole or in part.”
o Protected Groups
630. It is required to show under Article 2 that the Accused, in committing genocide
intended to destroy “a national, ethnical, racial or religious” group. Trial Chambers of
this Tribunal have noted that the concept of a group enjoys no generally or internationally
accepted definition, rather each group must be assessed in the light of a particular
political, social, historical and cultural context. Accordingly, “[f]or purposes of applying
the Genocide Convention, membership of a group is, in essence, a subjective rather than
an objective concept [where] the victim is perceived by the perpetrator of genocide as
belonging to a group slated for destruction.” A determination of the categorized groups
should be made on a case-by-case basis, by reference to both objective and subjective
criteria.
o The Acteus Reus
631. The acteus reus for the crime of genocide is provided for under Article 2(2) of the
Statute. As the issues arising in the present case are limited, the Chamber shall review
only the meaning of the requirements for the crime: (a) “killing members of the group”;
and (b) “causing serious bodily or mental harm to members of the group”.
Killing Members of the Group
632. It is clear from the established jurisprudence of this Tribunal that the Prosecution
bears the burden of proof to show that the perpetrator participated in the killing of one or
Annex 998
Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Trial Judgment (17 June 2004)
commune
A. THE TRIBUNAL AND ITS JURISDICTION
The Prosecutor v. Sylvestre Gacumbitsi
ratione materiae
B. THE ACCUSED
secteur
communepréfecture
préfecture
Banque Populaire debourgmestre
commune
C. PROCEDURAL BACKGROUND
bis
Gacumbitsi
prima facie
bis
Akayesu
Akayesu
Gacumbitsi
Gacumbitsi.
Gacumbitsi
The Prosecutor v. Jean-Paul Akayesu,
Prosecutor’s Motion for Admission of Testimony
of an Expert Witness Pursuant to Rules 54, 73, 92 cf
Gacumbitsi
Akayesu
bis
bis
D. EVIDENTIARY MATTERS
Gacumbitsi
E. WITNESS PROTECTION
Semanza
A. PARAGRAPHS 1, 2, 3 AND 26 OF THE INDICTMENT (GENERAL ALLEGATIONS)
Akayesu
Interahamwe
ibyitso
Gacumbitsi
Akayesu
commune
commune
B. PARAGRAPHS 4 TO 7 AND 9 TO 14 OF THE INDICTMENT (MEETINGS IN
RUSUMO AND KIBUNGO, THE ACCUSED’S MOVEMENTS WITHIN
RUSUMO AND THE DISTRIBUTION OF WEAPONS)
commune préfecture
conseillers de secteur responsables de cellule
communebureau
communal Bourgmestre
bourgmestres préfecture
bourgmestre
préfecture
secteur
responsables de cellule nyumbakumi
responsables de cellule nyumbakumi
commune
commune
Interahamwe
secteur nyumbakumi
nyumbakumi
nyumbakumi
cellules
commune
secteur
Thursday, 7 April 1994
gendarmerie
gendarmerie
Gendarmerie
communeconseillerssecteur
souspréfet
souspréfet
commune
Friday 8 April 1994
communesouspréfet
préfecture
préfet
bourgmestrespréfecture
Interahamwe
Interahamwe
Interahamwe
préfet
bourgmestre
commune bourgmestres
communes
communebourgmestres
conseillers
bourgmestres
commune conseillers
Saturday, 9 April 1994
commune
commune
conseillers
commune
Conseillers secteur secteur
secteur secteur
secteursecteur
secteursecteur secteur
Conseillersecteur
commune
commune
conseillers secteurs commune
secteurs
Inkotanyi
Inkotanyi
bourgmestre
conseillers de secteurs
cellules
secteurs
secteur
commune
conseillers
conseillers de secteurcellule
conseillers de secteur
conseillers
secteur
secteurconseiller
Sunday 10 April 1994
commune
bourgmestre commune commune
communes
bourgmestres
commune
commune
commune
commune
commune
cellulesecteur
secteur
Coalition pour la defense de la République
Conseiller
Monday, 11 April 1994
Interahamwe
commune
secteur
secteur
Maréchal
Inspecteur de police juridiciaire
commune
commune
commune
Tuesday, 12 April 1994
secteurcommuneconseillers
conseillersecteur
secteurs
conseillers
bourgmestre commune Inspecteur de
police judiciairesecteur
Maréchal bourgmestre
bourgmestre
bourgmestreconseillersecteur
cellule
Maréchal
bourgmestre
bourgmestresecteur
bourgmestre souspréfet
bourgmestre
bourgmestre souspréfet
Inkotanyi
Wednesday, 13 April 1994
Interahamwe
commune
bourgmestre
commune
commune
secteur
commune
secteur
commune
commune
commune
Interahamwe
Interahamwe
commune
bourgmestre
bourgmestre
Inkotanyi
souspréfet
Thursday, 14 April 1994
gacaca
bourgmestre
commune
cellule
cellules
cellule
bourgmestre
bourgmestre
gacaca
commune
Gacaca
commune
bourgmestre
bourgmestre
conseillersecteur
conseiller
conseiller
secteurBourgmestre
commune gendarmerie
Interahamwe
gendarmerie
Gendarmerie
préfetGendarmerie
Interahamwe
bourgmestrepréfecture
bourgmestre commune
conseillerssecteurcommune
communeconseillerssecteur
commune conseiller
conseillers
secteur
Inkotanyi
gendarmerie
commune
commune
Interahamwe secteur
communeconseillers
Inkotanyi
commune
conseillers secteur
bourgmestrepréfecture
commune
commune
commune
commune
conseillerssecteur
conseillerssecteur
Interahamwe
Interahamwepréfecture
cellules
commune
commune
C. PARAGRAPHS 15 TO 19 AND 27 OF THE INDICTMENT (ATTACKS ON
NYARUBUYE PARISH)
paroisse
Interahamwe kitenge
Interahamwe
Interahamwe
Interahamwe
Interahamwe
paroisse
paroisse
Interahamwe
paroisse
15 April 1994
communes
Conseiller
Interahamwe
Interahamwe
Conseiller
Interahamwe
commune
commune
Interahamwe
Interahamwe
Interahamwe
Interahamwe
Interahamwe
ex parte
Interahamwe
Interahamwe
Interahamwe
Interahamwe
gendarmes, Interahamwe
communes
commune
gendarmes
Interahamwe
Interahamwe
Interahamwe
Ibid
bourgmestre,
secteur
commune
commune
gendarmes
gendarmes
communegendarmes
gendarmes
gendarmes
gendarmes
communes
gendarmes
cuvette
commune
gendarmes
gendarmes
gendarmes
préfecture
gendarmes
communes
gendarmes
gendarmes
commune
gendarmes,
commune gendarmes
commune
communes.
sous-préfetsous-préfet
sous-préfet
sous-préfet
sous-préfet
Inkotanyi sous-préfet
sous-préfet
sous-préfet
communecommunes
communes Inkotanyi
16 April 1994
Interahamwe
kitenge
kitenge
gendarmes.
commune
sous-préfet
sous-préfet
sous-préfet
17 April 1994
Interahamwe
Interahamwe
Interahamwe
supra,
sous-préfet
bourgmestres
bourgmestrecommunepréfecture
commune
After 17 April 1994
Forces armées rwandaises
commune
Bourgmestre
et seq.
et seq.
15 April 1994
Interahamwe
Interahamwe
Interahamwe
communeInterahamwe
Interahamwe
communessecteurs
Interahamwe
conseiller
secteurInterahamwe
conseiller
Interahamwe
InterahamweInterahamwe
Interahamwe
gendarmes
16 April 1994
Interahamwe
commune
commune
17 April 1994
secteur
secteur
The Defence Case: massacres committed by RPF
secteur
Inkotanyi
Inkotanyi
commune
tu quoque
commune
InterahamweInterahamwe
Kupreški
Interahamwe
commune
Interahamwe gendarmes
Interahamwe
commune
paroisse
D. PARAGRAPHS 31 TO 36 OF THE INDICTMENT (MURDERS)
préfecture
paroisse
supra
13 April 1994 – Murder of Marie and Béatrice
Interahamwe
bourgmestre Inkotanyi
bourgmestre
bourgmestre’
bourgmestre
bourgmestre ,
Banque populaire
14 April 1994 – The murder of Kanyogote
15 April 1994 – Attack on the Nyabitare Catholic Centre
commune
Interahamwe
secteur,Conseiller
Paragraph 33 of the Indictment
commune.
Paragraph 34 of the Indictment
locus in quo
Paragraph 36 of the Indictment
E. PARAGRAPHS 20, 21 AND 37 TO 40 OF THE INDICTMENT (RAPES)
commune
commune
secteur
secteur cellule
cellulecellule
Conseiller
Conseiller
cellule
conseiller
secteur
Conseiller
conseiller
conseiller
conseiller
Conseiller
conseiller
secteur
conseiller
bourgmestre
et seq
et seq
supraet seq.
cellule secteur
bourgmestre
Conseiller
Conseiller
cellule
conseiller
secteur
conseiller
supraet seq.
Ibuka
Ibuka
Gacumbitsi,
supra
commune
commune
commune
F. PARAGRAPHS 8, 22, 23 AND 24 OF THE INDICTMENT (AUTHORITY
OF THE ACCUSED)
bourgmestre,
commune, conseillers de secteur, responsables de cellule
nyumbakumi;
bourgmestre commune
gendarmes
commune.
prefecture, bourgmestres conseillers de secteur,
Interahamwe,
Interahamwe,
bourgmestre
The Prosecutor v. Jean-Paul Akayesu
bourgmestre
bourgmestre
bourgmestrecommune
bourgmestre
bourgmestre bourgmestre
bourgmestre
bourgmestre
bourgmestre
bourgmestre
commune de jure de facto
conseillers de secteur bourgmestre
commune
communegendarmerie
gendarmeriepréfetde facto
de facto
bourgmestrepréfet
préfet bourgmestre
préfet bourgmestre
bourgmestrecommune
bourgmestre
bourgmestre
AkayesuAkayesu,
Akayesu
Akayesu Akayesu,
Akayesu,
bourgmestre
bourgmestre
conseillers de secteur
préfetbourgmestre
sous-préfetsouspréfet
bourgmestrepréfet
préfetsous-préfet
communes bourgmestre
bourgmestre
bourgmestre
bourgmestre de jurede
facto
bourgmestre
bourgmestres
Bourgmestre
communebourgmestre
commune
Interahamwe
bourgmestre commune
Interahamwe
Interahamwe
bourgmestre
conseillerssecteurs
conseillerscommune
conseillers
conseiller Bourgmestre
bourgmestre
communesous-préfecture
sous-préfet
sous-préfecturecommunes
bourgmestre
bourgmestre
bourgmestre
commune
bourgmestre
bourgmestre’s
conseillerscommune
bourgmestre
bourgmestre
commune
commune
bourgmestre
bourgmestre
commune
conseillers gendarmes Interahamwe
commune
per se
commune
ipso facto
A. GENOCIDE AND RELATED OFFENCES
AkayesuKajelijeliKamuhanda
mens readolus specialis
actus reus
Akayesu Ntagerura and Others , Kajelijeli
Kayishema and RuzindanaKajelijeli
Semanza Kayishema and
Ruzindana
Semanza
Kayishema and Ruzindana
Rutanga MusemaSemanza
Semanza
AkayesuKajelijeliSemanza
Semanzaibidibid. Rutaganda
Kayishema and RuzindanaAkayesu
infra
supra
conseillers de secteur
commune
commune
supra
supra
gendarmesInterahamwe
Semanza Kayishema and Ruzindana Musema
RutagandaKayishema and Ruzindana
AkayesuKajelijeli
seriatim
bourgmestrecommuneconseillers
de secteurssecteur
gendarmerie
secteurs
Interahamwe
commune
secteursconseillers
Bla{ki} MusemaAkayesu
supra:
commune
commune
commune
actus reus
commune
Kajelijeli Bagilishema Akayesu
Semanza Akayesu
Bagilishemaibid
supra
AkayesuKajelijeli
de jure de facto
de facto
ipso facto
de jure
de facto
conseillers Interahamwe gendarmes
Semanza Ntagerura and others
Kordi} and CerkezKajelijeli
supra
Aiding Abetting
commune
Kayishema and Ruzindana Tadi}
Kunarac Semanza
SemanzaAkayesu
NtakirutimanaAkayesuKajelijeli
supra:
commune
Causing Serious Bodily or Mental Harm to members of the Tutsi Ethnic Group
B. CRIMES AGAINST HUMANITY
Akayesu Kayishema and Ruzindana Semanza
Semanza
Musema Rutaganda Akayesu
systématique et généralisé
Semanza Niyitegeta Akayesu
NiyitegetaNtakirutimana
Semanza
Ibid., citing Kunarac and Others,
commune
commune
Interahamwe
Akayesu
Akayesu
KajelijeliSemanza
SemanzaNtagerura and Others
supra
commune
supra
supra
AkayesuSemanza Nahimana and Others
Kayishema and Ruzindana Nahimana
and Others
Semanza
commune
commune
supra
supra
supra
supra
Akayesu Kunarac and Others
supra
supra
secteurs
bourgmestre
commune
enquire
A. GENERAL PRINCIPLES GOVERNING DETERMINATION OF
SENTENCES
B. AGGRAVATING CIRCUMSTANCES
commune,
commune
bourgmestre
Interahamwe
Ibid.,
Ibid.,
Ibid.,
Ibid.,
Ibid.,
Ibid.,
Ibid.,
Ibid.,
Ibid.,
bourgmestre
commune,
commune
C. MITIGATING CIRCUMSTANCES
commune
Semanza
bourgmestre,commune
commune
bourgmestre
communes
KajelijeliMedia
bourgmestre
Kajelijeli
Nahimana et al.
commune
commune
.
D. SCALE OF SENTENCES
A. International Criminal Tribunal for Rwanda, ICTR Reports of Orders,
Decisions and Judgments
ICTR, Reports of Orders, Decisions and Judgments 1998
ICTR, Reports of Orders, Decisions and Judgments 1999
B. List of Cited Judgments
The Prosecutor v. Jean-Paul Akayesu
The Prosecutor v. Jean-Paul Akayesu
Akayesu
The Prosecutor v. Jean-Paul Akayesu
Akayesu
The Prosecutor v. Ignace Bagilishema
The Prosecutor v. Ignace Bagilishema
Bagilishema
The Prosecutor v. Ignace Bagilishema
Bagilishema
The Prosecutor v. Juvénal Kajelijeli
The Prosecutor v. Juvénal Kajelijeli
Kajelijeli
The Prosecutor v. Jean de Dieu Kamuhanda
The Prosecutor v. Jean de Dieu Kamuhanda
Kamuhanda
The Prosecutor v. Clément Kayishema and Obed Ruzindana
The Prosecutor v. Clément Kayishema and Obed Ruzindana
Kayishema and
Ruzindana
The Prosecutor v. Clément Kayishema and Obed Ruzindana
Kayishema et
Ruzindana
The Prosecutor v. Alfred Musema
The Prosecutor v. Alfred Musema
Musema
The Prosecutor v. Alfred Musema
Musema
The Prosecutor v. Ferdinand Nahimana et al.
The Prosecutor v. Ferdinand Nahimana, Jean-Bosco
Barayagwiza and Hassan Ngeze
Nahimana et al.
The Prosecutor v. André Ntagerura et al.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki and
Samuel Imanishimwe
Cyangugu
The Proseutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana
The Prosecutor v. Elizaphan Ntakirutimana and Gérard
Ntakirutimana
Ntakirutimana
The Prosecutor v. Eliezer Niyitegeka
The Prosecutor v. Eliezer Niyitegeka Niyitegeka
The Prosecutor v. Georges Anderson Nderubumwe Rutaganda
The Prosecutor v. Georges Rutaganda,
Rutaganda,
The Prosecutor v. Georges Rutaganda,
Rutaganda, Judgment
The Prosecutor v. Laurent Semanza
The Prosecutor v. Laurent Semanza
Semanza
Prosecutor v. Zlatko Aleksovski
Prosecutor v. Zlatko Aleksovski
Aleksovski
The Prosecutor v. Zlatko Aleksovski
Aleksovski
Prosecutor v. Tihomir Blaški}
Prosecutor v. Tihomir Blaški}
Blaški}
Prosecutor v. Zejnil Delali} et al.
Prosecutor v. Zejnil Delali}, Zdravko Muci} also known as
“Pavo”, Hazim Deli}, Esad Landzo also known as “Zenga”
Celebici Case
Prosecutor v. Zejnil Delali}, Zdravko Muci} also known as
“Pavo”, Hazim Deli}, Esad Landzo also known as “Zenga”
Celebici Case
Prosecutor v. Anto Furundzija
Prosecutor v. Anto Furundzija
Furundzija
Prosecutor v. Goran Jelisi}
Prosecutor v. Goran Jelisi}
Jelisi}
Prosecutor v. Dario Kordi} and Mario Cerkez
Prosecutor v. Dario Kordi} and Mario Cerkez
Kordi} and Cerkez
Prosecutor v. Milorad Krnojelac
Prosecutor v. Milorad Krnojelac
Krnojelac
Prosecutor v. Radislav Krsti}
Prosecutor v. Radislav Krsti}
Krsti}
Prosecutor v. Radislav Krsti}
Krsti}
Prosecutor v. Dragoljub Kunarac et al.
Prosecutor v. Dragoljub Kunarac et al.
Kunarac et al.
Prosecutor v. Dragoljub Kunarac et al.
Kunarac et al.
Prosecutor v. Zoran Kupre{ki} et al.
Prosecutor v. Zoran Kupre{ki} et al.
Kupre{ki} et al.
Prosecutor v. Zoran Kupre{ki} et al.
Kupre{ki} et al.
Prosecutor v. Miroslav Kvo~ka et al.
Prosecutor v. Miroslav Kvo~ka et al.
Kvo~ka et al.
Prosecutor v. Milomir Staki}
Prosecutor v. Milomir Staki}
Staki}
Prosecutor v. Dusko Tadi}
Prosecutor v. Dusko Tadic
Tadi}
Prosecutor v. Dusko Tadi}
Tadi}
Prosecutor v. Mitar Vasiljevi}
Prosecutor v. Mitar Vasiljevi}
Vasiljevi}
C. List of Cited Decisions and Orders
The Prosecutor v. Sylvestre Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
bis
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Décision relative à la requête du Procureur aux fins
d’admission du témoignage d’un témoin expert
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
Le Procureur c. Sylvestre Gacumbitsi
Décision relative à la requête de la Défense aux fins
d’acquittement partiel (Ch.), 2 octobre 2003
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi
Décision relative à la requête de la Défense aux fins de
modification de la date de dépôt des conclusions écrites de la
Défense
Gacumbitsi
Prosecutor v. Milan Milutinovi} et al.
Prosecutor v. Milan Milutinovi} et al.
Milutinovi} et al.
D. List of Other Sources Cited
E. List of Cited Rwandan Laws
List of Abreviations and Conventions
The Prosecutor v. Jean-Paul Akayesu
Akayesu
Mouvement Révolutionnaire National pour le Développement
Mouvement républicain national pour la démocratie et le
développement
Mouvement démocratique républicain
Armée patriotique rwandaise
Rwandan Patriotic Front
Forces armées rwandaises
INDICTMENT
commune,
préfecture,
bourgmestre commune
préfecture.
GENOCIDE, a crime stipulated in Article 2(3)(a) of the
Statute,
prefecture,
Pursuant to Article 6(1) of the Statute:
and
Pursuant to Article 6(3) of the Statute:
Interahamwe,
or alternatively,
COMPLICITY IN GENOCIDE, a crime stipulated in Article
2(3)(e) of the Statute,
préfecture,
Pursuant to Article 6(1) of the Statute:
Concise Statement of Facts for Counts 1 & 2:
Interahamwe
ibyitso,
commune, préfecture.
conseillers de secteur, responsables de
cellule commune.
bureau communal.
bourgmestre
bourgmestres
préfecture.
bourgmestre.
préfecture.
secteur
bourgmestre,
commune, conseillers de secteur,
responsables de cellule nyumbakumi;
bourgmestre
commune
gendarmes
commune.
responsables de cellule
nyumbakumi
responsables de cellule nyumbakumi
commune.
conseillers de secteur responsables de cellule
inkotanyi,
snakes,
commune.
Interahamwe,
secteur nyumbakumi
nyumbakumi
nyumbakumi
commune
.
paroisse
Interahamwe. kitenge
Interahamwe
Interahamwe
Interahamwe
Interahamwe
paroisse
commune,
commune
“rape Tutsi girls that had always refused to
sleep with Hutu search in the bushes, do not save a single
snake
préfecture, bourgmestres
conseillers de secteur,
Interahamwe,
Interahamwe, bourgmestre
.
EXTERMINATION as a CRIME AGAINST HUMANITY as
stipulated in Article 3(b) of the Statute,
prefectures,
Pursuant to Article 6(1) of the Statute:
and
Pursuant to Article 6(3) of the Statute:
Interahamwe,
paroisse.
Interahamwe
paroisse
paroisse,
paroisse
commune, préfecture,
commune
MURDER as a CRIME AGAINST HUMANITY, as stipulated
in Article 3(a) of the Statute,
préfecture,
Pursuant to Article 6(l) of the Statute:
and
Pursuant to Article 6(3) of the Statute:
Interahamwe,
préfecture
paroisse
RAPE as a CRIME AGAINST HUMANITY as stipulated in
Article 3(g) of the Statute,
préfecture,
Pursuant to Article 6(1) of the Statute:
and
Pursuant to Article 6(3) of the Statute:
Interahamwe,
'Search in the bushes, do not save a single snake Hutu
that save Tutsi should be killed Tutsi girls that have always refused to
sleep with Hutu should be raped and sticks placed in their genitals..."
The acts and omissions of Sylvestre GACUMBITSI detailed herein are
punishable in reference to Articles 22 and 23 of the Statute.
Annex 999
Prosecutor v. Branin, Case No. IT-99-36-T, Trial Judgment (1 September 2004)
Case No.: IT-99-36-T 1 September 2004
UNITED
NATIONS
Case No. IT-99-36-T
Date: 1 September 2004
International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations of
International Humanitarian Law
Committed in the Territory of
Former Yugoslavia since 1991 Original: English
IN THE TRIAL CHAMBER II
Before: Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Registrar: Mr. Hans Holthuis
Judgement of: 1 September 2004
PROSECUTOR
v.
RADOSLAV BR\ANIN
JUDGEMENT
The Office of the Prosecutor:
Ms. Joanna Korner
Ms. Anna Richterova
Ms. Ann Sutherland
Mr. Julian Nicholls
Counsel for the Accused:
Mr. John Ackerman
Mr. David Cunningham
24
Case No.: IT-99-36-T 1 September 2004
IV. GENERAL OVERVIEW
A. Background to the armed conflict in Bosnia and Herzegovina
53. Following the occupation of the Kingdom of Yugoslavia in 1941 by the German Nazi
regime, the independent State of Croatia, which included BiH, was established. The State was
governed by a group of extreme Croat nationalists, known as Ustaša. The Usta{a regime was
particularly brutal in the Bosnian Krajina, where tens of thousands of Serbs, Jews and Roma were
systematically killed in extermination camps because of their religion and ethnicity.90 A significant
number of members of the Bosnian Muslim community collaborated with the Usta{a and the
Germans during the war.91
54. After the Second World War, the People’s Republic of Bosnia and Herzegovina, later
renamed Socialist Republic of Bosnia and Herzegovina (“SRBH”)92 was created as one of the six
republics in the Socialist Federal Republic of Yugoslavia (“SFRY”), the successor state of the
Kingdom of Yugoslavia. The SRBH was the only republic without a single majority nationality. It
was populated primarily by Bosnian Serbs, Bosnian Muslims and Bosnian Croats.93 While there
were differences in their cultural heritage and religious tradition, the three groups had much in
common and peacefully coexisted for most of the time.94
55. Marshal Tito’s death in 1980 and the disintegration of the ruling League of Communists of
Yugoslavia in the first months of 1990 resulted in a power vacuum and the emergence of nationalist
parties throughout the country.95 The Party for Democratic Action (“SDA”), established by Bosnian
Muslims, was formed in early spring 1990 as the first of the three main nationalist parties of the
SRBH.96 The Croatian Democratic Union (“HDZ”) and the Serbian Democratic Party (“SDS”) were
90 Robert Donia, T. 832-833, 1203-1204; ex. P53, “Expert Report of Robert Donia”, pp. 21-23; Jovica Radojko,
T. 20069; ex. DB376, “Expert Report of Paul Shoup”, pp. 10-11.
91 Ex. P53, “Donia Report”, p. 21.
92 While the abbreviation BiH refers to a territorial unit, the acronym SRBH refers to a political unit.
93 In 1953, the ethnic composition of BiH was as follows: Muslims constituted 31.3% of the population, Serbs
constituted 44.4% of the population and Croats constituted 23.0% of the population. According to the 1991 census,
during which it was possible to declare “Yugoslav” as an ethnicity, the ethnic composition of BiH has changed to some
extent: Muslims constituted 43.7% of the population, Serbs constituted 31.4% of the population and Croats constituted
17.3% of the population of BiH: Ex. DB1, “The War in Bosnia and Herzegovina”, book co-written by Paul Shoup, p.
27. The Trial Chamber recognises that the terms "ethnic identity" or "ethnicity" may not describe the distinguishing
features of Bosnian Muslims, Bosnian Croats and Bosnian Serbs in their entirety, since other factors, such as religion
and nationality, are of importance. Nevertheless, for the sake of brevity and following the trend of other Trial
Chambers of the Tribunal, this Trial Chamber has opted for this term for the purposes of this judgement.
94 Robert Donia, T. 824-827, 1207, 1313; ex. P53, “Expert Report of Robert Donia”, pp. 23-24; BT-19, T. 20696
(closed session).
95 Robert Donia, T. 822-823; ex. P53, “Expert Report of Robert Donia”, pp. 25-26.
96 The Constitution of SRBH was amended in 1989 and 1990 to allow for the holding of multi-party elections. In the
early months of 1990, the SRBH Parliament approved the formation of political parties, but prohibited the organisation
of parties on the basis of nationality or religion. However, in June 1990, this restriction was deemed unconstitutional by
the SRBH Constitutional Court: Robert Donia, T. 839-840, 1215-1216; Patrick Treanor, T. 20881-20890.
244
Case No.: IT-99-36-T 1 September 2004
and III are reproduced in Article 4(2) and (3) of the Statute. It is widely recognised that these
provisions of the Genocide Convention reflect customary international law and that the norm
prohibiting genocide constitutes jus cogens.1690
(b) Genocide
681. Article 4 of the Statute characterises genocide by the following constitutive elements:
1. the underlying act of the offence, which consists of one or several of the actus reus
enumerated in subparagraphs (a) to (e) of Article 4(2) carried out with the mens rea required
for the commission of each;
2. the specific intent of the offence, which is described as the intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such.1691
(i) The protected groups
682. The Genocide Convention and, correspondingly, Article 4 of the Statute, protects national,
ethnical, racial or religious groups. These groups are not clearly defined in the Genocide
Convention or elsewhere.1692 The Trial Chamber agrees with the Krsti Trial Chamber that:
[t]he preparatory work of the Convention shows that setting out such a list was designed more to
describe a single phenomenon, roughly corresponding to what was recognised, before the second
world war, as “national minorities”, rather than to refer to several distinct prototypes of human
groups. To attempt to differentiate each of the named groups on the basis of scientifically
objective criteria would thus be inconsistent with the object and purpose of the Convention.1693
683. In accordance with the jurisprudence of the Tribunal, the relevant protected group may be
identified by means of the subjective criterion of the stigmatisation of the group, notably by the
perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious
characteristics.1694 In some instances, the victim may perceive himself or herself to belong to the
aforesaid group.1695
Federal Council held on 28 September 1976 and declared by decree of the President of the Republic on
28 September 1976; published in the SFRY Official Gazette No.44 of 8 October 1976 (correction in the Official
Gazette SFRY No.36 of 15 July 1977) and which came into effect on 1 July 1977.
1690 See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
(1951) ICJ Reports 23. See also Secretary-General’s Report, para. 45; Staki Trial Judgement, para. 500; Krsti Trial
Judgement, para. 541; Jelisi Trial Judgement, para. 60; Akayesu Trial Judgement, para. 495; Kayishema Trial
Judgement, para. 88; Rutaganda Trial Judgement, para. 46; Bagilishema Trial Judgement, para. 54.
1691 See Krsti Trial Judgement, para. 542; Jelisi Trial Judgement, para. 62; Kayishema Trial Judgement, para. 90.
1692 Krsti Trial Judgement, para. 555; Rutaganda Trial Judgement, para. 56; Bagilishema Trial Judgement, para. 65;
Kajelijeli Trial Judgement, para. 811.
1693 Krsti Trial Judgement, para. 556.
1694 Nikoli Rule 61 Decision, para. 27; Krsti Trial Judgement, para. 557; Jelisi Trial Judgement, para. 70.
1695 See Rutaganda Trial Judgement, para. 56; See also Krsti Trial Judgement, para. 559.
245
Case No.: IT-99-36-T 1 September 2004
684. The correct determination of the relevant protected group has to be made on a case-by-case
basis, consulting both objective and subjective criteria.1696 This is so because subjective criteria
alone may not be sufficient to determine the group targeted for destruction and protected by the
Genocide Convention, for the reason that the acts identified in subparagraphs (a) to (e) of
Article 4(2) must be in fact directed against “members of the group”.1697
685. In addition, the Trial Chamber agrees with the Staki Trial Chamber that, “[i]n cases where
more than one group is targeted, it is not appropriate to define the group in general terms, as for
example, 'non-Serbs'”.1698 It follows that the Trial Chamber disagrees with the possibility of
identifying the relevant group by exclusion, i.e.: on the basis of “negative criteria”.1699
686. Moreover, where more than one group is targeted, the elements of the crime of genocide
must be considered in relation to each group separately.1700
(ii) The underlying acts: their objective and subjective elements
687. The Indictment limits the charges of genocide and of complicity in genocide to the
underlying criminal acts listed in subparagraphs (a) to (c) of Article 4(2) of the Statute.
688. The acts in subparagraphs (a) and (b) of Article 4(2) require proof of a result.1701
a. Killing members of the group
689. The actus reus and mens rea required for “killing” in subparagraph (a) have been set out
earlier in this judgement.1702 The killing must be of members of the targeted national, ethnical,
racial or religious group.
1696 Semanza Trial Judgement, para. 317; Kajelijeli Trial Judgement, para. 811.
1697 See Schabas, Genocide in International Law, p. 110; See also Rutaganda Trial Judgement, para. 57, which reached
the same conclusion on a different reasoning: “it appears from a reading of the travaux préparatoires of the Genocide
Convention, that certain groups, such as political and economic groups, have been excluded from the protected groups”.
1698 Staki Trial Judgement, para. 512.
1699 “A ’negative approach’ would consist of identifying individuals as not being part of the group to which the
perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical,
racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group”:
Jelisi Trial Judgement, para. 71.
1700 Staki Trial Judgement, para. 512.
1701 Staki Trial Judgement, para. 514.
1702 See A.1. supra, “Wilful killing”. The word “killing” is understood to refer to intentional, but not necessarily to
premeditated, acts. See also Staki Trial Judgement, para. 515; Kayishema Appeal Judgement, para. 151.
Annex 1000
Prosecutor v. Muhimana, Case No. ICTR-95-1B-T (28 April 2005)
Judgement and Sentence i
Before: Judge Khalida Rachid Khan, Presiding
Judge Lee Gacuiga Muthoga
Judge Emile Francis Short
Registrar: Mr. Adama Dieng
Date: 28 April 2005
TRIAL CHAMBER III
THE PROSECUTOR
v.
MIKAELI MUHIMANA
Case No. ICTR- 95-1B-T
JUDGEMENT AND SENTENCE
Office of the Prosecutor:
Mr. Charles Adeogun-Philips
Mr. Wallace Kapaya
Ms. Renifa Madenga
Ms. Florida Kabasinga
Ms. Maymuchka Lauriston
Counsel for the Defence:
Professor Nyabirungu mwene Songa
Me Kazadi Kabimba
International Criminal Tribunal for Rwanda
Tribunal pénal international pour le Rwanda
UNITED NATIONS
NATIONS UNIES
The Prosecutor v. Mikaeli Muhimana, Case N° ICTR-95-1B-T
Judgement and Sentence 9 0 28 April 2005
CHAPTER III – LEGAL FINDINGS
485. Based on its factual findings set out above, the Chamber will present its legal findings
on the charges alleged against the Accused in the order of the Counts as they appear in
the Indictment.
486. The Indictment contains four counts: Count 1, Genocide; alternatively, Count 2,
Complicity in Genocide; Count 3, Rape as a Crime against Humanity; Count 4, Murder
as a Crime against Humanity. With the exception of Count 1 and Count 2 (Genocide
and Complicity in Genocide), the counts are charged cumulatively.
A. GENOCIDE (COUNT 1)
487. Count 1 of the Indictment charges the Accused with genocide, by acting individually or
in concert with others, to cause many Tutsi to be killed. In support of this charge, the
Prosecution, in Paragraph 5 of the Indictment, alleges the following acts committed by
the Accused:450
( ) Mobilisation and distribution of arms to assailants;
( ) Visit to Mubuga Church in preparation for an attack on Tutsi
refugees;
( ) Looting of food which was intended for civilians who had taken
refuge in Mubuga Church;
( ) Distribution of grenades and guns at Mubuga Church;
( ) Attacks against civilian Tutsi within Mubuga Church;
( ) Attack against Tutsi civilians at Mugonero Complex;
( ) Shooting twenty Tutsi civilians at Uwingabo;
( ) Pursuing and attacking Tutsi at Rushishi and Ngendombi, Gitwa,
and Muyira Hills.
488. The Defence contends that “by failing to indicate in the amended Indictment any of the
[material elements of genocide], the Prosecution made it impossible for the Accused to
identify the offence charged within the meaning of the Genocide Convention and the
Statute, and made it unnecessary for the Defence to analyse the actus reus of
genocide”.451
450 Indictment, para. 5.
451 Defence Closing Brief, para. 119; Defence Oral Closing arguments: T. 20 Janvier 2005, pp. 5 and 6 (in
French).
The Prosecutor v. Mikaeli Muhimana, Case N° ICTR-95-1B-T
Judgement and Sentence 91 28 April 2005
489. After carefully reviewing the Defence argument, the Chamber finds that the Indictment
provided the Accused with sufficient notice of the material elements of the crime of
genocide charged against him.
490. The Indictment charges the Accused with criminal responsibility, under Article 6 (1) of
the Statute, but fails to detail the form of his alleged participation in the crime of
genocide. Article 6 (1), which identifies five forms of criminal responsibility, provides:
A person who planned, instigated, ordered, committed, or otherwise aided
and abetted in the planning, preparation or execution of a crime referred to
in Articles 2 to 4 of the present Statute, shall be individually responsible for
the crime.
491. The Chamber considers that the Prosecution’s failure to indicate the precise form of the
Accused’s alleged participation is not fatal because the factual allegations of the
Indictment adequately describe the Accused’s role in the crimes.452 Accordingly, the
Chamber has considered all forms of participation, under Article 6 (1), relevant to its
factual findings, in making its legal findings on the Accused’s criminal responsibility.
1. Applicable Law
492. Rwanda is a Party to the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide, signed on 12 February 1975.453
493. Genocide means:
… any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.454
494. In the instant case, the Prosecution charges the Accused with two genocidal acts
enumerated in the Statute: killing members of the group; and causing serious bodily or
mental harm to members of the group. Therefore, the Chamber will apply the law to its
factual findings only in relation to these two forms of genocide.
495. In addition to these material elements, the specific intent for genocide requires that the
perpetrator target the victims with “intent to destroy, in whole or in part, a national,
ethnical, racial or religious group”.
496. The perpetrator’s specific genocidal intent may be inferred from deeds and utterances. It
may also be inferred from the general context of the perpetration, in consideration of
factors such as: the systematic manner of killing; the methodical way of planning; the
general nature of the atrocities, including their scale and geographical location,
weapons employed in an attack, and the extent of bodily injuries; the targeting of
452 Ntagerura et al. Judgement, (TC) para. 38; Semanza Judgement (TC), para. 59.
453 Gacumbitsi Judgement (TC), para. 248; Akayesu Judgement (TC), para. 496; Kajelijeli Judgement (TC),
para. 744; Kamuhanda Judgement (TC), para. 576.
454 ICTR Statute, Article 2 (2).
The Prosecutor v. Mikaeli Muhimana, Case N° ICTR-95-1B-T
Judgement and Sentence 9 2 28 April 2005
property belonging to members of the group; the use of derogatory language towards
members of the group; and other culpable acts systematically directed against the same
group, whether committed by the perpetrator or others.455
497. The notion of “destruction of a group” means “the material destruction of a group either
by physical or by biological means, not the destruction of the national, linguistic,
religious, cultural or other identity of a particular group”.456
498. In proving the intent to destroy “in whole or in part”, it is not necessary for the
Prosecution to establish that the perpetrator intended to achieve the complete
annihilation of a group. There is no numeric threshold of victims necessary to establish
genocide457, even though the relative proportionate scale of the actual or attempted
destruction of a group, by any act listed in Article 2 of the Statute, is strong evidence of
the intent to destroy a group, in whole or in part.458
499. To convict a person of genocide for killing members of a group requires that the
Prosecution establish that the accused, having the intent to destroy, in whole or in part,
the group as such:
committed, planned, ordered, or instigated the killing; or
as an accomplice, aided and abetted the killing of one or several
members of the group.459
500. The Prosecution also has the burden of proving either that the victim belongs to the
targeted ethnic, racial, national, or religious group or that the perpetrator of the crime
believed that the victim belonged to the group. 460
501. Pursuant to Article 2 (2) (b) of the Statute, an accused incurs criminal liability if he
causes serious bodily or mental harm to members of the group.461
502. Serious bodily harm is any serious physical injury to the victim, such as torture and
sexual violence. This injury need not necessarily be irremediable.462 Similarly, serious
mental harm can be construed as some type of impairment of mental faculties or harm
that causes serious injury to the mental state of the victim.463
503. Planning occurs when one or more persons contemplate and take any steps towards
commission of a crime.464
455 Gacumbitsi Judgement (TC), paras. 252-253; Akayesu Judgement (TC), para. 523; Kayishema and
Ruzindana Judgement (TC), para. 93; Ntagerura and Others Judgement (TC), para. 663.
456 See ILC Report (1996), para. 50; see also Gacumbitsi Judgement (TC), para. 253; Semanza Judgement (TC),
para. 315; Kayishema and Ruzindana Judgement (TC), para. 95.
457 Gacumbitsi Judgement (TC), para. 253; Semanza Judgement (TC), para. 316.
458 Gacumbitsi Judgement (TC), para. 253; Kayishema and Ruzindana Judgement (TC), para. 93.
459 Gacumbitsi Judgement (TC), para. 255; Akayesu Judgement (TC), para. 473; Kajelijeli Judgement (TC),
para. 757; Semanza Judgement, para. 377.
460 Gacumbitsi Judgement (TC), para. 255-256; Semanza Judgement, (TC), para. 319; Rutaganda Judgement
(TC), para. 60; Kayishema and Ruzindana Judgement (TC), para. 99; Akayesu Judgement (TC), para. 499.
461 Gacumbitsi Judgement (TC), para. 256; See ILC Report (1996), para. 8.
462 Gacumbitsi Judgement (TC), para. 291; Akayesu Judgement (TC), para. 502; Kayishema and Ruzindana
Judgement (TC), para. 110; Semanza Judgement (TC), paras. 320 -321.
463 Gacumbitsi Judgement (TC), para. 291; See ILC Report (1996), para. 14, under Article 17 of the Draft Code
of Crimes. Bodily harm is defined therein as “some type of physical injury”, while mental harm is defined as
“some type of impairment of mental faculties”.
464 Gacumbitsi Judgement (TC), para. 271.
The Prosecutor v. Mikaeli Muhimana, Case N° ICTR-95-1B-T
Judgement and Sentence 9 3 28 April 2005
504. Instigating involves prompting another person to commit an offence.465 Instigating need
not be direct or public, as required for direct and public incitement to commit genocide,
punishable pursuant to Article 2 (3) (c) of the Statute. Proof is required of a causal
connection between the instigation and the actus reus of the crime. 466
505. Ordering refers to a situation where an individual, in a position of authority, uses such
authority to compel another individual to commit an offence.467
506. Committing refers to the direct and physical perpetration of the crime by the offender.468
507. Aiding and abetting are distinct legal concepts. Aiding means assisting or helping
another to commit a crime. Abetting means facilitating, advising, or instigating the
commission of a crime.469
2. Legal Findings
508. In light of its factual findings with regard to the allegations of genocide set forth in
Paragraphs 5 (a), (b), (c), and (d) of the Indictment, the Chamber has considered the
criminal responsibility of the Accused under Count 1, Genocide, under Article 2 of the
Statute of the Tribunal.
The Tutsi Group
509. The Chamber has found that, during the period addressed by the Indictment, Rwandan
citizens were individually identified according to three ethnic groups: that is, Tutsi,
Hutu, and Twa.470
510. The Defence does not contest that the Tutsi were considered a distinct group in Rwanda
in 1994, stating that any question as to whether they constituted a national, ethnic,
racial, or religious group in the sense of the 1948 Convention against Genocide is
academic.471 According to its interpretation of Akayesu, the 1948 Convention protects
not only the explicitly mentioned groups, but all stable and permanent groups.472
511. The Chamber concludes - having noted that the question is not in dispute between the
Parties - that in Rwanda, in 1994, the Tutsi were a group protected by the 1948
Convention on the Prevention and Punishment of the Crime of Genocide.
465 Gacumbitsi Judgement (TC), para. 279; Kajelijeli Judgement (TC), para. 762; Bagilishema Judgement (TC),
para. 30; Akayesu Judgement (TC), para. 482.
466 Gacumbitsi Judgement (TC), para. 279; Semanza Judgement (TC). para. 381; Akayesu Judgement (AC),
paras. 478 to 482.
467 Gacumbitsi Judgement (TC), para. 281; Akayesu Judgement (TC), para. 483; Kajelijeli Judgement (TC),
para. 763.
468 Gacumbitsi Judgement (TC), para. 285; Kayishema and Ruzindana Judgement (AC), para. 187; ICTY, Tadic
Judgement (AC), para. 188; ICTY, Kunarac and Others Judgement (TC), para. 390; Semanza Judgement (TC),
para. 383.
469 Gacumbitsi Judgement (TC), para. 286; Ntakirutimana Judgement (TC), para. 787; Akayesu Judgement (TC),
para. 484; Kajelijeli Judgement (TC), para. 765.
470 See supra: Chapter II, Section B.
471 Defence Closing Brief, paras. 100, 104.
472 Defence Closing Brief, para. 111 : The Defence further states “In the Akayesu Judgement, ICTR considered
all Tutsis as an ethnic group and very reasonably and wisely observed that the Genocide Convention is
applicable to all stable and permanent groups. We are greatly indebted to ICTR for this interpretation which is
the most reasonable there could be”.
The Prosecutor v. Mikaeli Muhimana, Case N° ICTR-95-1B-T
Judgement and Sentence 9 4 28 April 2005
The Accused’s Actions
512. The Chamber has found that, during the months of April and May 1994, the Accused
participated in acts of killing members of the Tutsi ethnic group and causing serious
bodily or mental harm to members of the Tutsi ethnic group.
513. The Chamber finds that, through personal commission, the Accused killed and caused
serious bodily or mental harm to members of the Tutsi group :
( ) By taking part in attacks at Nyarutovu and Ngendombi Hills, where
he shot and wounded a Tutsi man called Emmanuel;473
( ) By taking part in an attack at Mubuga Church, where he shot at
Tutsi refugees and threw a grenade into the church where refugees
were gathered. The grenade explosion killed a Tutsi man called
Kaihura and seriously wounded many others. Many Tutsi refugees
died or were injured in the attack;474
( ) By taking part in attacks at Mugonero Complex, where he raped
Tutsi women and shot at Tutsi refugees. Many Tutsi refugees died
or were injured in the attack;475
( ) By taking part in attacks at Kanyinya Hill, where he pursued and
attacked Tutsi refugees and shot a Tutsi man called Nyagihigi;476
( ) By taking part in attacks at Muyira Hill, where he shot and killed the
sister of Witness W, a Tutsi.477
The Accused’s Intent
514. The Chamber notes that the phrase “destroy in whole or in part a[n] ethnic group” does
not imply a numeric approach. It is sufficient to prove that the Accused acted with
intent to destroy a substantial part of the targeted group.478
515. The Chamber finds that the attacks mentioned in Paragraph 513 above were
systematically directed against the Tutsi group. Before the attacks on Mubuga Church
commenced, Hutu refugees, who were intermingled with the Tutsi, were instructed to
come out of the church. Similarly, both Prosecution and Defence witnesses testified
that the refugees who had gathered on Kanyinya and Muyira Hills were predominantly
Tutsi.
516. Factors such as the sheer scale of the massacres, during which a great number of Tutsi
civilians died or were seriously injured, and the number of assailants who were
involved in the attacks against Tutsi civilians, lead the Chamber to the irresistible
conclusion that the massacres, in which the Accused participated, were intended to
destroy the Tutsi group in whole or in part.
517. The Accused targeted Tutsi civilians during these attacks by shooting and raping Tutsi
victims. He also raped a young Hutu girl, Witness BJ, whom he believed to be Tutsi,
473 See supra: Chapter II, Section E.
474 See supra: Chapter II, Section H.
475 See supra: Chapter II, Section L.
476 See supra: Chapter II, Section O.
477 See supra: Chapter II, Section P.
478 See ILC Report (1996), para. 8.
Annex 1001
DH v. Czech Republic Application No.57325/00 (2008) 47 E.H.R.R. 3 (ECHR (Grand Chamber)
GRAND CHAMBER
CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC
(Application no. 57325/00)
JUDGMENT
STRASBOURG
13 November 2007
This judgment is final but may be subject to editorial revision.
In the case of D.H. and Others v. the Czech Republic,
The European Court of Human Rights (Second Section), sitting as a Grand Chamber composed of:
Sir Nicolas Bratza, President,
Mr R. Türmen,
Mr K. Jungwiert,
Mr J. Casadevall,
Mrs M. Tsatsa-Nikolovska,
Mr K. Traja,
Mr V. Zagrebelsky,
Mrs E. Steiner,
Mr J. Borrego Borrego,
Mrs A. Gyulumyan,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr J. Šikuta,
Mrs I. Ziemele,
Mr M. Villiger, judges,
and Mr M. O'Boyle, Deputy Registrar,
Having deliberated in private on 17 January and 19 September 2007,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
1. The case originated in an application (no. 57325/00) against the Czech Republic lodged with the Court on 18 April
2000 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by eighteen Czech nationals (“the applicants”), whose details are set out in the annex to this judgment
(“the Annex”).
2. The applicants were represented before the Court by the European Roma Rights Centre based in Budapest, Lord
Lester of Herne Hill, Q.C, Mr J. Goldston, of the New York Bar, and Mr D. Strupek, a lawyer practising in the Czech
Republic. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm.
3. The applicants alleged, inter alia, that they had been discriminated against in the enjoyment of their right to
education on account of their race or ethnic origin.
4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in
Rule 26 § 1.
5. By a decision of 1 March 2005, following a hearing on admissibility and the merits (Rule 54 § 3), the Chamber
declared the application partly admissible.
(a) Interights and Human Rights Watch
161. Interights and Human Rights Watch stated that it was essential that Article 14 of the Convention should afford
effective protection against indirect discrimination, a concept which the Court had not yet had many occasions to
consider. They submitted that aspects of the Chamber's reasoning were out of step with recent developments in cases
such as Timishev v. Russia (judgment cited above), Zarb Adami v. Malta (judgment cited above) and Hoogendijk v. the
Netherlands (decision cited above). The Grand Chamber needed to consolidate a purposive interpretation of Article 14
and to bring the Court's jurisprudence on indirect discrimination in line with existing international standards.
162. Interights and Human Rights Watch noted that the Court itself had confirmed in Zarb Adami that discrimination
was not always direct or explicit and that a policy or general measure could result in indirect discrimination. It had also
accepted that intent was not required in cases of indirect discrimination (Hugh Jordan v. the United Kingdom, no.
24746/94, 4 May 2001, § 154). In their submission, it was sufficient in the case of indirect discrimination that the
practice or policy resulted in a disproportionate adverse effect on a particular group.
163. As to proof of indirect discrimination, it was widely accepted in Europe and internationally and also by the Court
(see Timishev, judgment cited above, § 57; and Hoogendijk, decision cited above) that the burden of proof had to shift
once a prima facie case of discrimination had been established. In cases of indirect discrimination, where the applicant
had demonstrated that significantly more people of a particular category were placed at a disadvantage by a given
policy or practice, a presumption of discrimination arose. The burden then shifted to the State to reject the basis for the
prima facie case, or to provide a justification for it.
164. It was therefore critical for the Court to engage with the type of evidence that might be produced in order to shift
the burden of proof. Interights and Human Rights Watch submitted on this point that the Court's position with regard to
statistical evidence, as set out in the Hugh Jordan judgment (cited above, § 154), was at variance with international
and comparative practice. In European Communities Directives and international instruments, statistics were the key
method of proving indirect discrimination. Where measures were neutral on their face, statistics sometimes proved the
only effective means of identifying their varying impact on different segments of society. Obviously, courts had to
assess the credibility, strength and relevance of the statistics to the case at hand, requiring that they be tied to the
applicant's allegations in concrete ways.
If, however, the Court were to maintain the position that statistics alone were not sufficient to disclose a discriminatory
practice, Interights and Human Rights Watch submitted that the general social context should be taken into account, as
it provided valuable insight into the extent to which the effects of the measure on the applicants were disproportionate.
(b) Minority Rights Group International, the European Network against Racism and the European Roma Information
Office
165. The Minority Rights Group International, the European Network against Racism and the European Roma
Information Office submitted that the wrongful assignment of Roma children to special schools for the mentally disabled
was the most obvious and odious form of discrimination against the Roma. Children in such special schools followed a
simplified curriculum considered appropriate for their lower level of intellectual development. Thus, for example, in the
Czech Republic, children in special schools were not expected to know the Czech alphabet or numbers up to 10 until the
third or fourth school-year, while their counterparts in ordinary schools acquired that knowledge in the first year.
166. This practice had received considerable attention, both at the European level and within the human-rights bodies
of the United Nations, which had expressed their concern in various reports as to the over-representation of Roma
children in special schools, the adequacy of the tests employed and the quality of the alleged parental consent. All
these bodies had found that no objective and reasonable justification could legitimise the disadvantage faced by Roma
children in the field of education. The degree of consistency among the institutions and quasi-judicial bodies was
persuasive in confirming the existence of widespread discrimination against Roma children.
167. The interveners added that whatever the merits of separate education for children with genuine mental disabilities,
the decision to place Roma children in special schools was in the majority of cases not based on any actual mental
disability but rather on language and cultural differences which were not taken into account in the testing process. In
order to fulfil their obligation to secure equal treatment for Roma in the exercise of their right to education, the first
requirement of States was to amend the testing process so that it was not racially prejudiced against Roma and to take
positive measures in the area of language training and social-skills training.
(c) International Step by Step Association, the Roma Education Fund and the European Early Childhood Education
Research Association
168. The International Step by Step Association, the Roma Education Fund and the European Early Childhood Education
Research Association sought to demonstrate that the assessment used to place Roma children in special schools in the
Ostrava region disregarded the numerous effective and appropriate indicators that were well-known by the mid-1990s
(see paragraph 44 above). In their submission, the assessment had not taken into account the language and culture of
the children, their prior learning experiences or their unfamiliarity with the demands of the testing situation. Single
rather than multiple sources of evidence had been used. Testing had been done in a single administration, not over
time. Evidence had not been obtained in realistic or authentic settings where children could demonstrate their learning.
Undue emphasis had been placed on individually administered, standardised tests normed on other populations.
169. Referring to various studies that had been carried out (see paragraph 44 above), the interveners noted that
minority children and those from vulnerable families were over-represented in special education in central and eastern
Europe. This resulted from an array of factors, including unconscious racial bias on the part of school authorities, large
resource inequalities, unjustifiable reliance on IQ and other evaluation tools, educators' inappropriate responses to the
pressures of “high-stakes” testing and power differentials between minority parents and school officials. School
placement through psychological testing often reflected racial biases in the society concerned.
170. The Czech Republic was notable for its placement of children in segregated settings because of “social
disadvantage”. According to a comparison of data on fifteen countries collected by the OECD in 1999 (see paragraph 18
in fine above) the Czech Republic ranked third in placing pupils with learning difficult disabilities in special school
settings. Of the eight countries that provided data on the placement of pupils as a result of social factors, the Czech
Republic was the only one to have recourse to special schools; the other countries almost exclusively used ordinary
schools for educating such pupils.
171. Further, the practice of referring children labelled as being of low ability to special schools at an early age
(educational tracking) frequently led, whether or not intentionally, to racial segregation and had particularly negative
effects on the level of education of disadvantaged children. This had long-term detrimental consequences for both them
and society, including premature exclusion from the education system with the resulting loss of job opportunities for
those concerned.
(d) Fédération internationale des ligues des droits de l'Homme (International Federation for Human Rights – FIDH)
172. The FIDH considered that the Chamber had unjustifiably placed significant weight in its judgment on the consent
which the applicants' parents had allegedly given to the situation forming the subject of their complaint to the Court. It
noted that under the Court's case-law there were situations in which the waiver of a right was not considered capable
of exempting the State from its obligation to guarantee to every person within its jurisdiction the rights and freedoms
laid down in the Convention. That applied, in particular, where the waiver conflicted with an important public interest,
or was not explicit or unequivocal. Furthermore, in order to be capable of justifying a restriction of the right or freedom
of the individual, the waiver of that guarantee by the person concerned had to take place in circumstances from which
it could be concluded that he was fully aware of the consequences, in particular the legal consequences, of his choice.
In the case of R. v. Borden ([1994] 3 RCS 145, p. 162) the Supreme Court of Canada had developed the following
principle on that precise point: “[i]n order for a waiver of the right ... to be effective, the person purporting to consent
must be possessed of the requisite informational foundation for a true relinquishment of the right. A right to choose
requires not only the volition to prefer one option over another, but also sufficient available information to make the
preference meaningful”.
173. The question therefore arose as to whether, in the light of the nature of the principle of equality of treatment, and
of the link between the prohibition of racial discrimination and the wider concept of human dignity, waiver of the right
to protection against discrimination ought not to be precluded altogether. In the instant case, the consent obtained
from the applicants' parents was binding not solely on the applicants but on all the children of the Roma community. It
was perfectly possible – indeed, in the FIDH's submission, probable – that all parents of Roma children would prefer an
integrated education for their children, but that, being uncertain as regards the choice that would be made by other
parents in that situation, they preferred the “security” offered by special education, which was followed by the vast
majority of Roma children. In a context characterised by a history of discrimination against the Roma, the choice
available to the parents of Roma children was between (a) placing their children in schools where the authorities were
reluctant to admit them and where they feared being the subject of various forms of harassment and of manifestations
of hostility on the part of their fellow pupils and of teachers, or (b) placing them in special schools where Roma children
were in a large majority and where, consequently, they would not have to fear the manifestation of such prejudices. In
reality, the applicants' parents had chosen what they saw as being the lesser of two evils, in the absence of any real
possibility of receiving an integrated education which would unreservedly welcome Roma. The disproportion between
the two alternatives was such that the applicants' parents had been obliged to make the choice for which the
Government now sought to hold them responsible
174. For the reasons set out above, the FIDH considered that in the circumstances of the instant case, the alleged
waiver by the applicants' parents of the right for their children to receive an education in normal schools could not
justify exempting the Czech Republic from its obligations under the Convention.
C. The Court's assessment
1. Recapitulation of the main principles
175. The Court has established in its case-law that discrimination means treating differently, without an objective and
reasonable justification, persons in relevantly similar situations (Willis v. the United Kingdom, no. 36042/97, § 48, ECHR
2002-IV; and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). However, Article 14 does not prohibit a
member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain
circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of
the Article (“Case relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium
(Merits), judgment of 23 July 1968, Series A no. 6, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-
IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-...). The Court has also accepted
that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered
discriminatory notwithstanding that it is not specifically aimed at that group (Hugh Jordan v. the United Kingdom, no.
24746/94, § 154, 4 May 2001; and Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005), and that
discrimination potentially contrary to the Convention may result from a de facto situation (Zarb Adami v. Malta, no.
17209/02, § 76, ECHR 2006-...).
176. Discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial
discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from
the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available
means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a
threat but as a source of enrichment (Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR
2005-...; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005-...). The Court has also held that no
difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being
objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different
cultures (Timishev, cited above, § 58).
177. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference
in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and
Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III; and Timishev, cited above, §
57).
178. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the
respondent State, the Court stated in Nachova and Others (cited above, § 147) that in proceedings before it there are
no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts
the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may
flow from the facts and the parties' submissions. According to its established case-law, proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.
Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution
of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the
Convention right at stake.
179. The Court has also recognised that Convention proceedings do not in all cases lend themselves to a rigorous
application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation –
Turkey (extracts), no. 24351/94, § 272, ECHR 2003-V). In certain circumstances, where the events in issue lie wholly,
or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on
the authorities to provide a satisfactory and convincing explanation (Salman v. Turkey [GC], no. 21986/93, § 100, ECHR
2000-VII; and Anguelova v. Bulgaria, no. 38361/97, § 111, ECHR 2002-IV). In the case of Nachova and Others, cited
above, § 157), the Court did not rule out requiring a respondent Government to disprove an arguable allegation of
discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case in
which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that
in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense
with the need to prove intent in respect of alleged discrimination in employment or in the provision of services.
180. As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in
themselves disclose a practice which could be classified as discriminatory (Hugh Jordan, cited above, § 154). However,
in more recent cases on the question of discrimination, in which the applicants alleged a difference in the effect of a
general measure or de facto situation (Hoogendijk, cited above; and Zarb Adami, cited above, §§ 77-78), the Court
relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men
and women) in similar situations.
Thus, in the Hoogendijk decision the Court stated: “[W]here an applicant is able to show, on the basis of undisputed
official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner
– in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this
is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a
difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government,
it will be in practice extremely difficult for applicants to prove indirect discrimination.”
181. Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration
should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching
decisions in particular cases (Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001-I; and Connors v.
the United Kingdom, no. 66746/01, § 84, 27 May 2004).
In Chapman (cited above, §§ 93-94), the Court also observed that there could be said to be an emerging international
consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an
obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the
minorities themselves but to preserve a cultural diversity of value to the whole community.
2. Application of the aforementioned principles to the instant case
182. The Court notes that as a result of their turbulent history and constant uprooting the Roma have become a specific
type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly's
Recommendation no. 1203 (1993) on Gypsies in Europe, cited in paragraph 56 above and point 4 of its
Recommendation no. 1557 (2002): 'The legal situation of Roma in Europe', cited in paragraph 58 above). As the Court
has noted in previous cases, they therefore require special protection (see paragraph 181 above). As is attested by the
activities of numerous European and international organisations and the recommendations of the Council of Europe
bodies (see paragraphs 54-61 above), this protection also extends to the sphere of education. The present case
therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants
were minor children for whom the right to education was of paramount importance.
183. The applicants' allegation in the present case is not that they were in a different situation from non-Roma children
that called for different treatment or that the respondent State had failed to take affirmative action to correct factual
inequalities or differences between them (Thlimmenos, cited above, § 44; and Stec and Others, cited above, § 51). In
their submission, all that has to be established is that, without objective and reasonable justification, they were treated
less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect
discrimination.
184. The Court has already accepted in previous cases that a difference in treatment may take the form of
disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms,
discriminates against a group (Hugh Jordan, cited above, § 154; and Hoogendijk, cited above). In accordance with, for
instance, Council Directives 97/80/EC and 2000/43/EC (see paragraphs 82 and 84 above) and the definition provided by
ECRI (see paragraph 60 above), such a situation may amount to “indirect discrimination”, which does not necessarily
require a discriminatory intent.
(a) Whether a presumption of indirect discrimination arises in the instant case
185. It was common ground that the impugned difference in treatment did not result from the wording of the statutory
provisions on placements in special schools in force at the material time. Accordingly, the issue in the instant case is
whether the manner in which the legislation was applied in practice resulted in a disproportionate number of Roma
children – including the applicants – being placed in special schools without justification, and whether such children
were thereby placed at a significant disadvantage.
186. As mentioned above, the Court has noted in previous cases that applicants may have difficulty in proving
discriminatory treatment (Nachova and Others, cited above, §§ 147 and 157). In order to guarantee those concerned
the effective protection of their rights, less strict evidential rules should apply in cases of alleged indirect discrimination.
187. On this point, the Court observes that Council Directives 97/80/EC and 2000/43/EC stipulate that persons who
consider themselves wronged because the principle of equal treatment has not been applied to them may establish,
before a domestic authority, by any means, including on the basis of statistical evidence, facts from which it may be
presumed that there has been discrimination (see paragraphs 82 and 83 above). The recent case-law of the Court of
Justice of the European Communities (see paragraphs 88-89 above) shows that it permits claimants to rely on statistical
evidence and the national courts to take such evidence into account where it is valid and significant.
The Grand Chamber further notes the information furnished by the third-party interveners that the courts of many
countries and the supervisory bodies of the United Nations treaties habitually accept statistics as evidence of indirect
discrimination in order to facilitate the victims' task of adducing prima facie evidence.
The Court also recognised the importance of official statistics in the aforementioned cases of Hoogendijk and Zarb
Adami and has shown that it is prepared to accept and take into consideration various types of evidence (Nachova and
Others, cited above, § 147).
188. In these circumstances, the Court considers that when it comes to assessing the impact of a measure or practice
on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient
to constitute the prima facie evidence the applicant is required to produce. This does not, however, mean that indirect
discrimination cannot be proved without statistical evidence.
189. Where an applicant alleging indirect discrimination thus establishes a rebuttable presumption that the effect of a
measure or practice is discriminatory, the burden then shifts to the respondent State, which must show that the
difference in treatment is not discriminatory (see, mutatis mutandis, Nachova and Others, cited above, § 157). Regard
being had in particular to the specificity of the facts and the nature of the allegations made in this type of case (ibid., §
147), it would be extremely difficult in practice for applicants to prove indirect discrimination without such a shift in the
burden of proof.
190. In the present case, the statistical data submitted by the applicants was obtained from questionnaires that were
sent out to the head teachers of special and primary schools in the town of Ostrava in 1999. It indicates that at the
time 56% of all pupils placed in special schools in Ostrava were Roma. Conversely, Roma represented only 2.26% of
the total number of pupils attending primary school in Ostrava. Further, whereas only 1.8% of non-Roma pupils were
placed in special schools, the proportion of Roma pupils in Ostrava assigned to special schools was 50.3%. According to
the Government, these figures are not sufficiently conclusive as they merely reflect the subjective opinions of the head
teachers. The Government also noted that no official information on the ethnic origin of the pupils existed and that the
Ostrava region had one of the largest Roma populations.
191. The Grand Chamber observes that these figures are not disputed by the Government and that they have not
produced any alternative statistical evidence. In view of their comment that no official information on the ethnic origin
of the pupils exists, the Court accepts that the statistics submitted by the applicants may not be entirely reliable. It
nevertheless considers that these figures reveal a dominant trend that has been confirmed both by the respondent
State and the independent supervisory bodies which have looked into the question.
192. In their reports submitted in accordance with Article 25 § 1 of the Framework Convention for the Protection of
National Minorities, the Czech authorities accepted that in 1999 Roma pupils made up between 80% and 90% of the
total number of pupils in some special schools (see paragraph 66 above) and that in 2004 “large numbers” of Roma
children were still being placed in special schools (see paragraph 67 above). The Advisory Committee on the Framework
Convention observed in its report of 26 October 2005 that according to unofficial estimates Roma accounted for up to
70% of pupils enrolled in special schools. According to the report published by ECRI in 2000, Roma children were
“vastly overrepresented” in special schools. The Committee on the Elimination of Racial Discrimination noted in its
concluding observations of 30 March 1998 that a disproportionately large number of Roma children were placed in
special schools (see paragraph 99 above). Lastly, according to the figures supplied by the European Monitoring Centre
on Racism and Xenophobia, more than half of Roma children in the Czech Republic attended special school.
193. In the Court's view, the latter figures, which do not relate solely to the Ostrava region and therefore provide a
more general picture, show that, even if the exact percentage of Roma children in special schools at the material time
remains difficult to establish, their number was disproportionately high. Moreover, Roma pupils formed a majority of the
pupils in special schools. Despite being couched in neutral terms, the relevant statutory provisions therefore had
considerably more impact in practice on Roma children than on non-Roma children and resulted in statistically
disproportionate numbers of placements of the former in special schools.
194. Where it has been shown that legislation produces such a discriminatory effect, the Grand Chamber considers that,
as with cases concerning employment or the provision of services, it is not necessary in cases in the educational sphere
(see, mutatis mutandis, Nachova and Others, cited above, § 157) to prove any discriminatory intent on the part of the
relevant authorities (see paragraph 184 above).
195. In these circumstances, the evidence submitted by the applicants can be regarded as sufficiently reliable and
significant to give rise to a strong presumption of indirect discrimination. The burden of proof must therefore shift to
the Government, which must show that the difference in the impact of the legislation was the result of objective factors
unrelated to ethnic origin.
(b) Objective and reasonable justification
196. The Court reiterates that a difference in treatment is discriminatory if “it has no objective and reasonable
justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of
proportionality” between the means employed and the aim sought to be realised (see, among many other authorities,
Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; and Stec and Others, cited above, § 51). Where the
difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification
must be interpreted as strictly as possible.
197. In the instant case, the Government sought to explain the difference in treatment between Roma children and
non-Roma children by the need to adapt the education system to the capacity of children with special needs. In the
Government's submission, the applicants were placed in special schools on account of their specific educational needs,
essentially as a result of their low intellectual capacity measured with the aid of psychological tests in educational
psychology centres. After the centres had made their recommendations regarding the type of school in which the
applicants should be placed, the final decision had lain with the applicants' parents and they had consented to the
placements. The argument that the applicants were placed in special schools on account of their ethnic origin was
therefore unsustainable.
For their part, the applicants strenuously contested the suggestion that the disproportionately high number of Roma
children in special schools could be explained by the results of the intellectual capacity tests or be justified by parental
consent.
198. The Court accepts that the Government's decision to retain the special-school system was motivated by the desire
to find a solution for children with special educational needs. However, it shares the disquiet of the other Council of
Europe institutions who have expressed concerns about the more basic curriculum followed in these schools and, in
particular, the segregation the system causes.
199. The Grand Chamber observes, further, that the tests used to assess the children's learning abilities or difficulties
have given rise to controversy and continue to be the subject of scientific debate and research. While accepting that it
is not its role to judge the validity of such tests, various factors in the instant case nevertheless lead the Grand
Chamber to conclude that the results of the tests carried out at the material time were not capable of constituting
objective and reasonable justification for the purposes of Article 14 of the Convention.
200. In the first place, it was common ground that all the children who were examined sat the same tests, irrespective
of their ethnic origin. The Czech authorities themselves acknowledged in 1999 that “Romany children with average or
above-average intellect” were often placed in such schools on the basis of the results of psychological tests and that the
tests were conceived for the majority population and did not take Roma specifics into consideration (see paragraph 66
above). As a result, they had revised the tests and methods used with a view to ensuring that they “were not misused
to the detriment of Roma children” (see paragraph 72 above).
In addition, various independent bodies have expressed doubts over the adequacy of the tests. Thus, the Advisory
Committee on the Framework Convention for the Protection of National Minorities observed that children who were not
mentally handicapped were frequently placed in these schools “[owing] to real or perceived language and cultural
differences between Roma and the majority”. It also stressed the need for the tests to be “consistent, objective and
comprehensive” (see paragraph 68 above). ECRI noted that the channelling of Roma children to special schools for the
mentally-retarded was reportedly often “quasi-automatic” and needed to be examined to ensure that any testing used
was “fair” and that the true abilities of each child were “properly evaluated” (see paragraphs 63-64 above). The Council
of Europe Commissioner for Human Rights noted that Roma children were frequently placed in classes for children with
special needs “without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic
origin” (see paragraph 77 above).
Lastly, in the submission of some of the third-party interveners, placements following the results of the psychological
tests reflected the racial prejudices of the society concerned.
201. The Court considers that, at the very least, there is a danger that the tests were biased and that the results were
not analysed in the light of the particularities and special characteristics of the Roma children who sat them. In these
circumstances, the tests in question cannot serve as justification for the impugned difference in treatment.
202. As regards parental consent, the Court notes the Government's submission that this was the decisive factor
without which the applicants would not have been placed in special schools. In view of the fact that a difference in
treatment has been established in the instant case, it follows that any such consent would signify an acceptance of the
difference in treatment, even if discriminatory, in other words a waiver of the right not to be discriminated against.
However, under the Court's case-law, the waiver of a right guaranteed by the Convention – in so far as such a waiver is
permissible – must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say
on the basis of informed consent (Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, §§ 37-
38) and without constraint (Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, § 51).
203. In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who
were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects
of the situation and the consequences of giving their consent. The Government themselves admitted that consent in
this instance had been given by means of a signature on a pre-completed form that contained no information on the
available alternatives or the differences between the special-school curriculum and the curriculum followed in other
schools. Nor do the domestic authorities appear to have taken any additional measures to ensure that the Roma
parents received all the information they needed to make an informed decision or were aware of the consequences that
giving their consent would have for their children's futures. It also appears indisputable that the Roma parents were
faced with a dilemma: a choice between ordinary schools that were ill-equipped to cater for their children's social and
cultural differences and in which their children risked isolation and ostracism and special schools where the majority of
the pupils were Roma.
204. In view of the fundamental importance of the prohibition of racial discrimination (see Nachova and Others, cited
above, § 145; and Timishev, cited above, § 56), the Grand Chamber considers that, even assuming the conditions
referred to in paragraph 202 above were satisfied, no waiver of the right not to be subjected to racial discrimination can
be accepted, as it would be counter to an important public interest (see, mutatis mutandis, Hermi v. Italy [GC], no.
18114/02, § 73, ECHR 2006-...).
(c) Conclusion
205. As is apparent from the documentation produced by ECRI and the report of the Commissioner for Human Rights of
the Council of Europe, the Czech Republic is not alone in having encountered difficulties in providing schooling for Roma
children: other European States have had similar difficulties. The Court is gratified to note that, unlike some countries,
the Czech Republic has sought to tackle the problem and acknowledges that, in its attempts to achieve the social and
educational integration of the disadvantaged group which the Roma form, it has had to contend with numerous
difficulties as a result of, inter alia, the cultural specificities of that minority and a degree of hostility on the part of the
parents of non-Roma children. As the Chamber noted in its admissibility decision in the instant case, the choice
between a single school for everyone, highly specialised structures and unified structures with specialised sections is
not an easy one. It entails a difficult balancing exercise between the competing interests. As to the setting and planning
of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule (Valsamis v.
Greece, judgment of 18 December 1996, Reports 1996-VI, § 28).
206. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on
national authorities, the procedural safeguards available to the individual will be especially material in determining
whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation
(see Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV, § 76; and Connors v. the
United Kingdom, judgment cited above, § 83).
207. The facts of the instant case indicate that the schooling arrangements for Roma children were not attended by
safeguards (see paragraph 28 above) that would ensure that, in the exercise of its margin of appreciation in the
education sphere, the State took into account their special needs as members of a disadvantaged class (see, mutatis
mutandis, Buckley, cited above, § 76; and Connors, cited above, § 84). Furthermore, as a result of the arrangements
the applicants were placed in schools for children with mental disabilities where a more basic curriculum was followed
than in ordinary schools and where they were isolated from pupils from the wider population. As a result, they received
an education which compounded their difficulties and compromised their subsequent personal development instead of
tackling their real problems or helping them to integrate into the ordinary schools and develop the skills that would
facilitate life among the majority population. Indeed, the Government have implicitly admitted that job opportunities are
more limited for pupils from special schools.
208. In these circumstances and while recognising the efforts made by the Czech authorities to ensure that Roma
children receive schooling, the Court is not satisfied that the difference in treatment between Roma children and non-
Roma children was objectively and reasonably justified and that there existed a reasonable relationship of
proportionality between the means used and the aim pursued. In that connection, it notes with interest that the new
legislation has abolished special schools and provides for children with special educational needs, including socially
disadvantaged children, to be educated in ordinary schools.
209. Lastly, since it has been established that the relevant legislation as applied in practice at the material time had a
disproportionately prejudicial effect on the Roma community, the Court considers that the applicants as members of
that community necessarily suffered the same discriminatory treatment. Accordingly, it does not need to examine their
individual cases.
210. Consequently, there has been a violation in the instant case of Article 14 of the Convention, read in conjunction
with Article 2 of Protocol No. 1, as regards each of the applicants.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Annex 1002
Oršuš v. Croatia (2011) 52 EHRR 7 (ECHR) Application No. 15766/03, Merits, 16 March 2010
Case of Oršuš and Others v. Croatia
(Application no. 15766/03)
Judgment
Strasbourg, 16 March 2010
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EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROP~ENNE DES DROITS DE L'HOMME
ORŠUŠ AND OTHERS v. CROATIA JUDGMENT 1
In the case of Oršuš and Others v. Croatia,
The European Court of Human Rights (Grand Chamber), sitting as a
Grand Chamber composed of:
Jean-Paul Costa, President,
Nicolas Bratza,
Françoise Tulkens,
Josep Casadevall,
Karel Jungwiert,
Nina Vaji,
Anatoly Kovler,
Elisabeth Steiner,
Alvina Gyulumyan,
Renate Jaeger,
Egbert Myjer,
David Thór Björgvinsson,
Ineta Ziemele,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Iıl Karaka,
Nebojša Vuini, judges,
and Vincent Berger, Jurisconsult,
Having deliberated in private on 1 April 2009 and 27 January 2010,
Delivers the following judgment, which was adopted on the lastmentioned
date:
PROCEDURE
1. The case originated in an application (no. 15766/03) against the
Republic of Croatia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by fifteen Croatian nationals (“the applicants”), on 8
May 2003.
2. The applicants were represented before the Court by the European
Roma Rights Center based in Budapest, Mrs L. Kušan, a lawyer practising
in Ivani-Grad and Mr J. Goldston, of the New York Bar. The Croatian
Government (“the Government”) were represented by their Agent, Mrs Š.
Stažnik.
3. The applicants alleged, in particular, that the length of proceedings
before the national authorities had been excessive and that they had been
denied the right to education and discriminated against in the enjoyment of
that right on account of their race or ethnic origin.
2 ORŠUŠ AND OTHERS v. CROATIA JUDGMENT
4. The application was allocated to the First Section of the Court
(Rule 52 § 1 of the Rules of Court). On 17 July 2008 the Chamber of that
Section, consisting of Judges Christos Rozakis, Nina Vaji, Khanlar
Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and
George Nicolaou and of Søren Nielsen, Section Registrar, found
unanimously that there had been a violation of Article 6 § 1 of the
Convention on account of the excessive length of the proceedings, and that
there had not been a violation of Article 2 of Protocol No. 1 taken alone or
in conjunction with Article 14 of the Convention. The Chamber also found
that the first applicant had withdrawn his application on 22 February 2007
and it therefore discontinued the examination of the application in so far as
it concerned the first applicant.
5. On 13 October 2008 the applicants requested, in accordance with
Article 43 of the Convention and Rule 73, that the case be referred to the
Grand Chamber. On 1 December 2008 a panel of the Grand Chamber
accepted that request.
6. The composition of the Grand Chamber was determined according to
the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
7. The applicants and the Government each filed observations on the
admissibility and merits of the case. In addition, third-party comments were
received from the Government of the Slovak Republic, Interights and Greek
Helsinki Monitor.
8. A hearing took place in public in the Human Rights Building,
Strasbourg, on 1 April 2009 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mrs Š. STAŽNIK, Agent,
Mr D. MARII, Co-agent,
Mrs N. JAKIR,
Mrs I. IVANIŠEVI, Advisers;
(b) for the applicants
Mrs L. KUŠAN,
Mr J.A. GOLDSTON, Counsel,
Mr A. DOBRUSHI,
Mr T. ALEXANDRIDIS, Advisers.
The Court heard addresses by Mr Goldston, Mrs Kušan and Mrs Stažnik.
ORŠUŠ AND OTHERS v. CROATIA JUDGMENT 3
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicants were born between 1988 and 1994 and live
respectively in Orehovica, Podturen and Trnovec. Their names and details
are set out in the Appendix.
10. As schoolchildren the applicants at times attended separate classes,
with only Roma pupils, the second to tenth applicant in primary school in
the village of Podturen and the eleventh to fifteenth applicants in primary
school in the village of Macinec, in Meimurje County. In Croatia primary
education consists of eight grades and children are obliged to attend school
from the age of seven to fifteen. The first four grades are considered as
lower grades and each class is assigned a class teacher who in principle
teaches all subjects. The fifth to eighth grades are upper grades in which, in
addition to a class teacher assigned to each class, different teachers teach
different subjects. The curriculum taught in any primary-school class,
including the Roma-only classes which the applicants attended, may be
reduced by up to thirty percent in comparison to the regular, full curriculum.
A. General overview of the two primary schools in question
1. Podturen Primary School
11. The proportion of Roma children in the lower grades (from first to
fourth grade) varies from 33 to 36%. The total number of pupils in the
Podturen Primary School in 2001 was 463, 47 of whom were Roma. There
was one Roma-only class, with seventeen pupils, while the remaining thirty
Roma pupils attended mixed classes.
12. In 2001 a pre-school programme called “Little School” (Mala škola)
was introduced in the Lonarevo settlement in Podturen. It included about
twenty Roma children and was designed as a preparatory programme for
primary school. Three educators were involved, who had previously
received special training. The programme lasted from 11 June to 15 August
2001. This programme has been provided on a permanent basis since
1 December 2003. It usually includes about twenty Roma children aged
from three to seven. The programme is carried out by an educator and a
Roma assistant in cooperation with the Podturen Primary School. An
evaluation test was carried out at the end of the programme.
13. In December 2002 the Ministry of Education and Sport adopted a
decision introducing Roma assistants in schools with Roma pupils from first
to fourth grades. However, in the Podturen Primary School a Roma assistant
4 ORŠUŠ AND OTHERS v. CROATIA JUDGMENT
had already been working since September 2002. A statement made by one
such assistant, Mr K.B., on 13 January 2009 reads:
“I began to work in the Podturen Primary School in September 2002. At that time
there were two classes in the fourth grade. Class four b) had Roma pupils only and it
was very difficult to work with that class because the pupils were agitated and
disturbed the teaching. I was contemplating leaving after only two months. At the
request of teachers, I would take written invitations to the parents or I would invite
them orally to come to talk with the teachers at school. Some parents would come, but
often not, and I had to go and ask them again. A lot of time was needed to explain
Croatian words to pupils because some of them continued to speak Romani and
teachers would not understand them. I warned the pupils to attend school regularly.
Some pupils would just leave classes or miss a whole day. I helped pupils with
homework after school. I helped the school authorities to compile the exact list of
pupils in the first grade. I do not work in the school any longer.”
14. Since the school-year 2003/2004 there have been no Roma-only
classes in the Podturen Primary School.
2. Macinec Primary School
15. The proportion of Roma children in the lower grades varies from
57 to 75%. Roma-only classes are formed in the lower grades and only
exceptionally in the higher grades. All classes in the two final grades
(seventh and eighth) are mixed. The total number of pupils in the Macinec
Primary School in 2001 was 445, 194 of whom were Roma. There were six
Roma-only classes, with 142 pupils in all, while the remaining fifty-two
Roma pupils attended mixed classes.
16. Since 2003 the participation of Roma assistants has been
implemented.
17. A “Little School” pre-school special programme was introduced in
2006.
B. Individual circumstances of each applicant
18. The applicants submitted that they had been told that they had to
leave school at the age of fifteen. Furthermore, the applicants submitted
statistics showing that in the school year 2006/2007 16% of Roma children
aged fifteen completed their primary education, compared with 91% for the
general primary school population in Meimurje County. The drop-out rate
of Roma pupils without completing primary school was 84%, which was 9.3
times higher than for the general population. In school year 2005/2006, 73
Roma children were enrolled in first grade and five in eighth.
19. The following information concerning each individual applicant is
taken from official school records.
Annex 1003
Case Against Hartmann, Case No. it-02-54-R77.5-A, Appeals Judgment (19 July 2011)
UNITED
NATIONS
Case No. IT-02-54-R77.5-A
Date: 19 July 2011
International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations of
International Humanitarian Law
Committed in the Territory of the
former Yugoslavia since 1991 Original: English
IN THE APPEALS CHAMBER
Before: Judge Patrick Robinson, Presiding
Judge Andrésia Vaz
Judge Theodor Meron
Judge Burton Hall
Judge Howard Morrison
Registrar: Mr. John Hocking
Judgement: 19 July 2011
IN THE CASE AGAINST FLORENCE HARTMANN
PUBLIC
JUDGEMENT
Amicus Curiae Prosecutor
Mr. Bruce MacFarlane
Counsel for Appellant
Mr. Karim A. A. Kahn, Lead Counsel
Mr. Guénaël Mettraux, Co-Counsel
Case No. IT-02-54-R77.5-A 19 July 2011
i
CONTENTS
I. INTRODUCTION..........................................................................................................................1
A. BACKGROUND..............................................................................................................................1
B. THE APPEAL .................................................................................................................................1
II. STANDARD OF REVIEW ON APPEAL..................................................................................2
III. RIGHT TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL – GROUND 3.............4
A. SUB-GROUNDS 3.1–3.8 ................................................................................................................5
1. Submissions .............................................................................................................................5
2. Discussion................................................................................................................................7
B. CONCLUSION ................................................................................................................................9
IV. NOTICE TO HARTMANN – GROUND 1.............................................................................10
A. SUB-GROUNDS 1.1–1.6, 1.8, AND 1.11–1.15..............................................................................11
1. Submissions ...........................................................................................................................11
2. Discussion..............................................................................................................................14
B. SUB-GROUNDS 1.16 AND 1.17 ....................................................................................................16
1. Submissions ...........................................................................................................................16
2. Discussion..............................................................................................................................17
C. CONCLUSION ..............................................................................................................................18
V. ACTUS CONTRARIUS – GROUND 4 ....................................................................................18
A. SUB-GROUNDS 4.1–4.5...............................................................................................................20
1. Submissions ...........................................................................................................................20
2. Discussion..............................................................................................................................21
B. SUB-GROUND 4.6........................................................................................................................24
C. SUB-GROUND 4.7........................................................................................................................25
D. SUB-GROUND 4.8........................................................................................................................25
E. CONCLUSION ..............................................................................................................................27
VI. WAIVER – GROUND 5 ...........................................................................................................27
A. SUB-GROUNDS 4.9–4.10 AND 5.1–5.6........................................................................................27
1. Submissions ...........................................................................................................................27
2. Discussion..............................................................................................................................29
B. CONCLUSION ..............................................................................................................................31
VII. SERIOUSNESS OF THE CONDUCT – GROUND 6..........................................................31
A. SUB-GROUND 6.1, 6.2, AND 6.4–6.6 ...........................................................................................32
B. CONCLUSION ..............................................................................................................................32
VIII. REAL RISK TO THE ADMINISTRATION OF JUSTICE – GROUND 7.....................32
A. SUB-GROUNDS 7.1, 7.2, AND 7.4–7.9 .........................................................................................33
1. Submissions ...........................................................................................................................33
2. Discussion..............................................................................................................................35
B. SUB-GROUND 7.3........................................................................................................................35
C. CONCLUSION ..............................................................................................................................36
IX. MENS REA – GROUND 8 .......................................................................................................36
A. SUB-GROUND 8.1–8.5 ................................................................................................................37
1. Submissions ...........................................................................................................................37
2. Discussion..............................................................................................................................39
3. Conclusion .............................................................................................................................40
B. SUB-GROUNDS 1.9–1.10, 6.3, AND 8.6–8.8 ................................................................................40
1. Submissions ...........................................................................................................................40
2. Discussion..............................................................................................................................41
C. CONCLUSION ..............................................................................................................................42
X. THE REGISTRAR’S LETTER – GROUND 9........................................................................42
XI. MISTAKE OF FACT AND LAW – GROUND 10.................................................................43
XII. RIGHT TO FREEDOM OF EXPRESSION – GROUND 2................................................45
A. SUBMISSIONS..............................................................................................................................45
B. DISCUSSION................................................................................................................................48
C. CONCLUSION ..............................................................................................................................51
XIII. SENTENCE – SUB-GROUNDS 2.11 (IN PART) AND 2.16 .............................................52
XIV. DISPOSITION........................................................................................................................53
XV. ANNEX – GLOSSARY .............................................................................................................1
A. APPEALS CHAMBER JUDGEMENTS................................................................................................1
1. ICTY ........................................................................................................................................1
2. ICTR ........................................................................................................................................2
B. TRIAL CHAMBER JUDGEMENTS ....................................................................................................2
1. ICTY ........................................................................................................................................2
C. APPEALS CHAMBER DECISIONS....................................................................................................2
1. ICTY ........................................................................................................................................2
2. ICTR ........................................................................................................................................2
D. TRIAL CHAMBER DECISIONS ........................................................................................................2
1. ICTY ........................................................................................................................................2
Case No. IT-02-54-R77.5-A 19 July 2011
ii
133. These sub-grounds of appeal are therefore dismissed.262
C. Conclusion
134. The Appeals Chamber therefore dismisses ground of appeal 8 in its entirety, as well as subgrounds
1.9, 1.10, and 6.3.
X. THE REGISTRAR’S LETTER – GROUND 9
135. In determining Hartmann’s mens rea, the Trial Chamber relied upon the Registrar’s Letter,
sent 19 October 2008, which stated that her Book appeared to make reference to official Tribunal
information and documents that were not public and of which she had knowledge in the context of
her official duties as an employee of the Tribunal from 13 October 2000 to 12 October 2006. At
trial, the Defence submitted that nothing in the Registrar’s Letter suggested that she had violated the
confidentiality of a court order in her Book and that the Letter contained no reference to Rule 77 of
the Rules or to the Appeal Decisions.
136. The Trial Chamber considered that, even without explicit references to the Appeal Decisions
or Rule 77 of the Rules, Hartmann was formally put on notice by the Registrar’s Letter that the
Registry was concerned about the disclosure of confidential information. The Trial Chamber also
found that the fact that Hartmann published essentially the same information in her Article after
having received the Registrar’s Letter was strongly suggestive of her state of mind.
137. Hartmann states under sub-ground 9.1 that the Trial Chamber, by permitting the Amicus
Prosecutor to tender the Registrar’s Letter into evidence and subsequently rely on it, violated her
fundamental rights, international law, and Rules 89(D) and 95 of the Rules.263 The Amicus
Prosecutor contends that Hartmann: (a) received a copy of the Registrar’s Letter on or about 19
October 2007; (b) consequently had notice of its contents 20 months prior to trial; and, (c) was
notified of the Amicus Prosecutor’s intention to rely upon the Letter as evidence during the
262 In sub-ground 6.3, the Appellant argues that, if the Trial Chamber found that the Appellant was acting in more than
a negligent manner, it erred and abused its discretion. Hartmann Final Appeal Brief, para. 69. For the reasons given in
this section, the Appeals Chamber dismisses this sub-ground of appeal. Sub-ground 1.9 (Hartmann Final Appeal Brief,
para. 6) is duplicative of the arguments set forth in this section and therefore is dismissed. In sub-ground 1.10,
(Hartmann Final Appeal Brief, para. 7) Hartmann argues that she was not validly charged in respect of the mens rea
requirement with respect to her awareness that her Book contained confidential information. Based upon paragraph 4 of
the Annex to the Order in Lieu of Indictment, which alleges that she “knew that the information was confidential at the
time disclosure was made, that the decisions from which the information was drawn were ordered to be filed
confidentially, and that by her disclosure she was revealing confidential information to the public”, the Appeals
Chamber is of the view that Hartmann was on adequate notice that she was charged with revealing confidential
information. Annex to Order in Lieu of Indictment, para. 4. Sub-grounds 1.9 and 1.10 are therefore dismissed.
263 Hartmann Final Appeal Brief, para. 91.
Case No. IT-02-54-R77.5-A 19 July 2011
42
proceedings at least eight months in advance of the trial date.264 In reply, Hartmann contests the
Respondent’s assertion that she was aware of the Amicus Prosecutor’s intention to rely on the
Registrar’s Letter as evidence in the trial proceedings and reiterates that she was prejudiced.265
138. Hartmann submits under sub-ground 9.2 that the Trial Chamber erred in fact by suggesting
that the Registrar’s Letter reflected Hartmann’s awareness of the fact that the information relevant
to the charges eventually filed against her was still considered confidential.266 The Amicus
Prosecutor responds that the Registrar’s Letter is of “considerable probative value” concerning
Hartmann’s mens rea.267
139. The Appeals Chamber recalls that, on appeal, the parties must limit their arguments to legal
errors that invalidate the Judgement of the Trial Chamber and to factual errors that result in a
miscarriage of justice within the scope of Article 25 of the Statute.268 An allegation of an error of
law that has no chance of changing the outcome of a Judgement may be rejected on that ground.269
Only an error of fact that has occasioned a miscarriage of justice will cause the Appeals Chamber to
overturn a decision by the Trial Chamber.270
140. The Appeals Chamber observes that the Trial Chamber found Hartmann’s admissions
concerning the confidentiality of the Appeal Decisions in her own publications to be the strongest
evidence of her mens rea.271 The Appeals Chamber therefore considers that any possible error in
relation to the Registrar’s Letter would not have changed the outcome of the Judgement or
occasioned a miscarriage of justice.
141. The Appeals Chamber therefore dismisses ground of appeal 9 is in its entirety.
XI. MISTAKE OF FACT AND LAW – GROUND 10
142. At trial, Hartmann raised mistake of fact and mistake of law as defences to the alleged acts
of contempt. She argued that disclosure by the Tribunal and the Applicant, as well as public
discussion in the media prior to the publication of her Book and Article, of the information she was
charged with disclosing could have led her to reasonably believe that the information was no longer
treated as confidential.272 The Trial Chamber held that Hartmann could not have been reasonably
264 Amicus Prosecutor Response Brief, paras 79-81.
265 Hartmann Final Reply Brief, para. 26.
266 Hartmann Final Appeal Brief, para. 92.
267 Amicus Prosecutor Response Brief, paras 82-83.
268 [e{elj Contempt Appeal Judgement, para. 9; Joki} Contempt Appeal Judgement, para. 11.
269 [e{elj Contempt Appeal Judgement, para. 10; Joki} Contempt Appeal Judgement, para. 12.
270 [e{elj Contempt Appeal Judgement, para. 11; Joki} Contempt Appeal Judgement, para. 13.
271 Trial Judgement, paras 58, 62.
272 Trial Judgement, para. 63.
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mistaken in fact with respect to the confidential status of the Appeal Decisions.273 In relation to the
mistake of law, the Trial Chamber found that a person’s misunderstanding of the law does not, in
itself, excuse a violation of it.274
143. Hartmann argues that the Trial Chamber erred in fact and law when it excluded or
disregarded the reasonable possibility that: (a) she was unaware of the criminal nature of her
conduct (if regarded as such) and (b) as a result of an error of fact or law, she believed or
understood that the facts in question were no longer treated as confidential at the time of
publication.275
144. The Amicus Prosecutor responds that this ground of appeal should fail for two reasons. First,
the Amicus Prosecutor submits that Hartmann is inviting the Appeals Chamber to reach a
conclusion on the basis of speculation and without supporting evidence. Second, the speculative
conclusions sought to be drawn by Hartmann are contrary to the Trial Chamber’s express findings
based on the evidence that Hartmann did not labour under a mistake of fact and that, in relation to
the law, the evidence demonstrated knowledge, rather than ignorance, of the law.276
145. Hartmann replies that the Amicus Prosecutor’s “suggestion” that there was no evidence to
support the conclusion that Hartmann might have laboured under a mistaken belief is contradicted
by the record.277
146. In respect of the mistake of fact defence, the Appeals Chamber observes that the Trial
Chamber, in reaching its conclusion on this issue, recalled: (a) that, in her Book, Hartmann
explicitly stated that the Appeal Decisions were confidential; (b) that, when asked about her
knowledge of this during the suspect interview, she replied, “it would appear that I had good
sources”; (c) that, despite claiming to know from her “sources” that the Appeal Decisions were
confidential, she nonetheless did not “regard any check as necessary” with the United Nations or
the Tribunal prior to the publication of her Book in order to inquire about potential problems with
disclosure; and, (d) that there was an absence in Hartmann’s Book and Article of any reference to
public sources in which she claimed the facts related to the Appeal Decisions were revealed. Based
upon the foregoing, the Appeals Chamber considers that the Trial Judgement analysed the evidence
273 Trial Judgement, para. 64.
274 Trial Judgement, para. 65.
275 Hartmann Final Appeal Brief, para. 93.
276 Amicus Prosecutor Response Brief, para. 85.
277 Hartmann Final Reply Brief, para. 27. The Appellant argues in her reply that this ground of appeal is not opposed by
the Amicus Prosecutor. Hartmann Final Reply Brief, para. 27. The Appeal Chamber considers that the Amicus
Prosecutor has indeed responded to this ground of appeal, contrary to the contention of the Appellant.
Case No. IT-02-54-R77.5-A 19 July 2011
44
in relation to the mistake of fact defence raised by Hartmann and acted reasonably when it rejected
this defence.
147. In respect of the mistake of law defence, the Appeals Chamber recalls its holding in the
Jovi case that:
Knowledge of the legality of the Trial Chamber’s order is not an element of the mens rea of
contempt; to hold otherwise would mean that an accused could defeat a prosecution for contempt
by raising the defence of a mistake of law. … It is not a valid defence that one did not know that
disclosure of the protected information in violation of an order of a Chamber was unlawful.278
The Trial Chamber accurately identified this principle, citing the Jovi Contempt Trial Judgement,
and applied it to the present case.279 Moreover, the Trial Chamber went even further and identified
evidence adduced at trial that clearly demonstrated that Hartmann was not ignorant of the relevant
law.280
148. The Appeals Chamber therefore dismisses ground of appeal 10 in its entirety.
XII. RIGHT TO FREEDOM OF EXPRESSION – GROUND 2281
149. The Trial Chamber considered the arguments raised by the Defence at trial regarding the
alleged infringement of Hartmann’s right to freedom of expression as a journalist, principally under
Article 10 of the European Convention on Human Rights (“ECHR”).282 The Trial Chamber
acknowledged Hartmann’s right to freedom of expression, but noted a qualification to that right in
relation to court proceedings.283 The Trial Chamber held that Hartmann, in openly publishing
confidential information, created a real risk of interference with the Tribunal’s ability to exercise its
jurisdiction to prosecute and punish serious violations of humanitarian law.284
A. Submissions
150. Under sub-ground 2.1, Hartmann argues that the Trial Chamber erred in law in holding that
the standard applied in assessing the contempt conviction against her was consistent with
jurisprudence from the European Court of Human Rights (“ECtHR”).285 Under sub-ground 2.2,
278 Jovi Contempt Appeal Judgement, para. 27.
279 Trial Judgement, para. 65.
280 Trial Judgement, para. 66.
281 The Appeals Chamber notes as a preliminary issue that, although the Appellant’s appeal brief indicates that ground
of appeal 2 contains 16 sub-grounds of appeal, the Appellant has omitted to present sub-ground 2.13 in her appeal
brief.
282 Trial Judgement, paras 68-74; Council of Europe, European Convention for the Protection of Human Rights and
Fundamental Freedoms, 1 November 1998, ETS 155 (“ECHR”).
283 Trial Judgement, para. 70.
284 Trial Judgement, para. 74.
285 Hartmann Final Appeal Brief, para. 15.
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Hartmann submits that the Trial Chamber erred in law by failing to consider the strong presumption
under international law of unrestricted publicity in criminal proceedings and by instead treating this
presumption as one of many “equally important” factors.286 Under sub-ground 2.4, Hartmann
asserts that the Trial Chamber erred in law or fact by failing to consider the increased protection
guaranteed to free expression regarding issues of public or general interest.287 In sub-ground 2.5,
Hartmann contends that the Trial Chamber erred in law or fact by failing to consider the right of the
public to receive information disclosed by her in assessing the proportionality of the interference
with her right to free expression.288
151. In sub-ground 2.9, Hartmann contends that the Trial Chamber erred in law or fact when it
failed to establish, or even failed to seek to establish, that the restrictions on her—and the
public’s—freedom of expression in the form of a criminal conviction were “necessary”.289 Under
sub-ground 2.10, she argues that the Trial Chamber erred in law or fact by misapplying the
requirement of proportionality when it balanced various irrelevant factors in the Trial Judgement.290
In sub-ground 2.11, Hartmann alleges that the Trial Chamber erred in law or fact when it failed to
apply the proportionality test in deciding whether a criminal conviction was appropriate in the
circumstances.291
152. In sub-ground 2.12, Hartmann contends that the Trial Chamber erred in law or fact when it
failed to consider facts relevant to determining the necessity or proportionality of the restriction on
her freedom of expression “as were favourable to her”.292 Finally, in sub-ground 2.15, she argues
that the Trial Chamber erred in law by merging two issues relevant to testing the permissibility of
restrictions on her freedom of expression. In her view, the Trial Chamber was required to note the
aim of the good administration of justice, take into account all facts relevant to the
proportionality/necessity test, and determine whether the restriction on her free speech through a
criminal conviction was necessary and proportionate.293
153. In response, the Amicus Prosecutor argues that the Trial Chamber applied the correct legal
standard in assessing the restriction on Hartmann’s freedom of expression. He submits that
Hartmann fails to acknowledge valid restrictions on what the Amicus Prosecutor terms the “open
286 Hartmann Final Appeal Brief, para. 16. The Appellant relies upon jurisprudence from the United Kingdom and the
European Court of Human Rights (“ECtHR”) to support her position. Hartmann Final Appeal Brief, notes 21-23, 26.
287 Hartmann Final Appeal Brief, para. 18.
288 Hartmann Final Appeal Brief, para. 19.
289 Hartmann Final Appeal Brief, para. 23.
290 Hartmann Final Appeal Brief, para. 24.
291 Hartmann Final Appeal Brief, para. 25.
292 Hartmann Final Appeal Brief, para. 26.
293 Hartmann Final Appeal Brief, para. 28.
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court principle”.294 The Amicus Prosecutor also states that the decision to displace the presumption
of openness is consistent with international law.295 The Amicus Prosecutor contends that Hartmann
selectively applies ECtHR jurisprudence and that, even if the ECtHR jurisprudence did apply, the
cases relied upon by Hartmann can be distinguished from the case at hand.296
154. In reply, Hartmann contends that the Amicus Prosecutor is wrong in his enunciation of the
appropriate legal standard in relation to legitimate curtailments on freedom of expression.297 She
contends that the standard of what is “necessary in a democratic society” is not whether the
restriction on freedom of expression pursues a legitimate aim, but rather whether the restriction is
imposed on a fundamental right.298 Hartmann notes that she “never contested that the protection of
the administration of justice could be a legitimate aim for the purpose of ordering confidentiality,
including in relation to information received from a state”.299 Instead, she contended that the errors
“pertain … to the additional requirements of (i) ‘necessity’, (ii) ‘proportionality’ and (iii)
sufficiency of reasons adduced and whether, in the circumstances, her criminal conviction … for
allegedly discussing confidential matters satisfied these requirements”.300 According to Hartmann,
the Amicus Prosecutor mistakenly argues that she objected to whether protective measures could be
ordered at all, when this was never her position.301
155. The amicus curiae brief submitted by ARTICLE 19 addresses freedom of expression
principles as developed in international law.302 ARTICLE 19 notes that the right to freedom of
expression is a fundamental human right guaranteed under, inter alia, the Universal Declaration of
Human Rights303 and the International Covenant on Civil and Political Rights (“ICCPR”).304
Reference is made also to additional jurisprudence, both international and national.305
156. ARTICLE 19 concludes its amicus brief by inviting the Appeals Chamber to consider
various principles regarding freedom of expression in deciding the Appeal.306 This includes the
294 Amicus Prosecutor Response Brief, paras 27-31.
295 Amicus Prosecutor Response Brief, para. 29.
296 Amicus Prosecutor Response Brief, para. 27.
297 Hartmann Final Reply Brief, para. 6.
298 Hartmann Final Reply Brief, para. 6.
299 Hartmann Final Reply Brief, para. 6.
300 Hartmann Final Reply Brief, para. 6.
301 Hartmann Final Reply Brief, para. 6.
302 Amicus Curiae Brief on Behalf of ARTICLE 19, 19 February 2010 (“ARTICLE 19 Amicus Brief”), para. 3.
303 U.N. General Assembly, Universal Declaration of Human Rights (“UDHR”), 10 December 1948, G.A. Res. 217
(III)A, Article 19.
304 U.N. General Assembly, International Covenant on Civil and Political Rights (“ICCPR”), 16 December 1966,
United Nations Treaty Series, vol. 999, p. 171, Article 19. See also ECHR, Article 10; American Convention on Human
Rights, published 22 November 1969, entered into force 18 July 1978, OAS Treaty Series No. 36; 9 I.L.M. 99 (1969),
Article 13; African Charter on Human and Peoples' Rights, adopted 27 June 1981, entered into force 21October 1986,
OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 9.
305 ARTICLE 19 Amicus Brief, paras 6-32.
306 ARTICLE 19 Amicus Brief, para. 34.
Case No. IT-02-54-R77.5-A 19 July 2011
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principle that any interference with freedom of expression must serve a legitimate aim and be
necessary and proportionate to the aim pursued, with any exceptions being narrowly interpreted and
convincingly established.307 ARTICLE 19 suggests that media reporting of criminal proceedings
must be protected to make sure that the public receives information on matters of public interest. It
also notes that media reporting enables public scrutiny of the functioning of the criminal justice
system.308
157. The Appeals Chamber permitted Hartmann and the Amicus Prosecutor to respond to
ARTICLE 19’s amicus brief.309 Hartmann responds by adopting and supporting the submissions
and conclusions of ARTICLE 19.310 The Amicus Prosecutor responds that the general principles in
the Trial Judgement are consistent with the jurisprudence cited by ARTICLE 19.311 The Amicus
Prosecutor notes that ARTICLE 19 fails to cite cases in support of the principles that prohibiting
publication of confidential information violates freedom of expression, criminal contempt of court
violates freedom of expression, or the exercise of the criminal contempt power to prosecute and
convict parties who have violated a court order violates the freedom of expression.312
B. Discussion
158. The Appeals Chamber considers that Hartmann appears to submit that, had the Trial
Chamber enforced a “strong” presumption in favour of unrestricted publicity, it would have ruled in
her favour and permitted her to disclose confidential information pursuant to her freedom of
expression rights. The Appeals Chamber considers that there is no merit in Hartmann’s submission.
There is no strong presumption of unrestricted publicity for matters a Chamber has ruled are not to
be disclosed to the public. This was made clear in the Jovi case, in which it was held that:
The effect of a closed session order is to exclude the public, including members of the press, from
the proceedings and to prevent them from coming into possession of the protected information
being discussed therein. In such cases, the presumption of public proceedings under Article 20(4)
of the Statute does not apply. 313
159. At the heart of Hartmann’s submission is the alleged inconsistency of the Trial Judgement
with freedom of expression principles recognised by the ECHR. The Appeals Chamber is not bound
307 ARTICLE 19 Amicus Brief, para. 33.
308 ARTICLE 19 Amicus Brief, para. 33.
309 Decision on Application for Leave to File Amicus Curiae Brief, 5 February 2010, para. 10(b).
310 Hartmann Response to Amicus Brief, paras 2, 62.
311 Annex to Motion to Replace with Revised Response, para. 4.
312 Annex to Motion to Replace with Revised Response, para. 4.
313 Jovi Contempt Appeal Judgement, para. 21.
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by the findings of regional or international courts and as such is not bound by ECtHR
jurisprudence.314
160. The Appeals Chamber notes that Article 21 of the Statute of the Tribunal mirrors the
provisions of Article 14 of the ICCPR.315 The ICCPR and its commentaries are thus among the
most persuasive sources in delineating the applicable protections for freedom of expression in the
context of the Tribunal’s proceedings.316 The Human Rights Committee of the United Nations
(“Human Rights Committee”) has interpreted Article 14(1) of the ICCPR to require that courts’
judgements be made public, with “certain strictly defined exceptions.”317 The Appeals Chamber
notes that, although Article 19(2) of the ICCPR states that “everyone shall have the right to
freedom of expression,” Article 19(3) recognises that
The exercise of the right provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or
morals.318
The travaux préparatoires of the ICCPR indicate that the “protection of … public order” in
Article 19(3) was intended to include the prohibition of the procurement and dissemination of
314 Prosecutor v. Jadranko Prli} et al., Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting
Transcript of Jadranko Prli}’s Questioning into Evidence, 23 November 2007, para. 51. In the Delali} et al. Appeal
Judgement, the Appeals Chamber stated that, “although the Appeals Chamber will necessarily take into consideration
other decisions of international courts, it may, after careful consideration, come to a different conclusion”. Delali} et al.
Appeal Judgement, para. 24.
315 See U.N. Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), U.N. Doc. S/25704, 3 May 1993, para. 106. This Report was issued pursuant to U.N. Security Council
Resolution 808, which requested the Secretary-General “to submit for consideration by the Security Council … a
report” on the establishment of the Tribunal. See U.N. Security Council Resolution 808, U.N. Doc, S/RES/808 (1993),
p. 2.
316 The ICCPR has 167 state parties and, as such, is considered to be closer to universal application than the European
Convention, which is a regional human rights instrument. See United Nations Treaty Collection,
<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>, accessed 11
July 2011. The Appeals Chamber in the Barayagwiza Decision stated that the ICCPR “is part of general international
law and is applied on that basis.” In contrast, the Appeals Chamber indicated that, “regional human rights treaties,
such as the ECHR and the American Convention on Human Rights, and the jurisprudence developed thereunder, are
persuasive authority which may be of assistance in applying and interpreting the Tribunal’s applicable law. Thus, they
are not binding of their own accord on the Tribunal. They are, however, authoritative as evidence of international
custom.” Jean-Bosco Barayagwiza v. The Prosecutor, Case. No. ICTR-97-19-AR72, Decision, 3 November 1999, para.
40.
317 CCPR General Comment No. 13: Article 14 (Administration of Justice) Equality before the Courts and the Right to a
Fair and Public Hearing by an Independent Court Established by Law, 13 April 1984, para. 6.
318 ICCPR, Article 19(3). Article 14(1) of the ICCPR also restricts a journalist’s right to report on court proceedings. It
states, inter alia, that “the press and the public may be excluded from all or part of a trial for reasons of morals, public
order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so
requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice”. This provision was cited in the Blaški and Jovi cases. See Jovi Contempt Trial
Judgement, para. 23, note 95; Prosecutor v. Tihomir Blaški, Case No. IT-95-14-PT, Decision on the Objection of the
Republic of Croatia to the Issuance of Subpoenae Duces Tecum, 18 July 1997, note 248.
Case No. IT-02-54-R77.5-A 19 July 2011
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confidential information.319 In respect of whether the restriction to an individual’s freedom of
expression is “necessary” to achieve its aim, the Human Rights Committee has considered whether
the action taken was proportionate to the sought-after aim.320
161. Based upon the foregoing, therefore, in order to legitimately restrict Hartmann’s freedom of
expression under Article 19 of the ICCPR, the restriction must have been provided by law and
proportionately necessary to protect against the dissemination of confidential information.321 The
two Appeal Decisions in the case of Prosecutor v. Slobodan Miloševi contained restrictions on the
freedom of expression that were “provided by law” because they were filed confidentially under
protective measures granted pursuant to Rule 54 bis of the Rules. Furthermore, restricting
Hartmann’s freedom of expression in this manner was both proportionate and necessary because it
protected the “public order” by guarding against the dissemination of confidential information.
These restrictions were therefore within the ambit of Article 19(3) of the ICCPR.
162. In this regard, the Appeals Chamber observes that the Trial Chamber found that the effect of
Hartmann’s disclosure of confidential information decreased the likelihood that states would
cooperate with the Tribunal in the future, thereby undermining its ability to exercise its jurisdiction
to prosecute and punish serious violations of humanitarian law.322 The Trial Chamber further found
that prosecuting an individual for contempt under these circumstances was proportionate to the
effect her actions had on the Tribunal’s ability to administer international criminal justice.323 The
Appeals Chamber is therefore of the view that the Trial Chamber was correct to conclude that Rule
54 bis of the Rules permits the Tribunal to impose confidentiality in an effort to secure the
cooperation of sovereign states.324 In light of the foregoing, the Appeals Chamber is satisfied that
the Trial Chamber adequately took into account all relevant considerations to ensure that its
Judgement was rendered in conformity with international law.325
319 See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 2nd Revised Edition N.P.
Engel, 2005, pp. 464-65 (stating that the term “public order” “covers the grounds for restriction set out in Art. 10(2) of
the ECHR and repeatedly proposed during the drafting of Art. 19 of the ICCPR, namely, the procurement and
dissemination of confidential information and endangering the impartiality of the judiciary”).
320 Jong-Choel v. The Republic of Korea (CCPR Communication No. 968/2001), U.N. Doc. A/60/40 vol. II (27 July
2005), p. 60, para. 8.3; see also Marques v. Angola (CCPR Communication No. 1128/2002), U.N. Doc. A/60/40 vol. II
(29 March 2005) p. 181, para. 6.8 (“The Committee observes that the requirement of necessity implies an element of
proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to
the value which the restriction serves to protect.”).
321 See CCPR General Comment No. 10: Freedom of Expression (Art. 19), 29 June 1983, para. 4; see also Kim Jong-
Cheol v. Republic of Korea, para. 8.3; Marques v. Angola, para. 6.8.
322 Trial Judgement, para. 74.
323 Trial Judgement, para. 74.
324 Trial Judgement, para. 72. The Trial Chamber relied upon testimony by Robin Vincent, who testified that the
confidentiality breaches would lead to less cooperation by sovereign states regarding the disclosure of information,
thereby affecting the Tribunal’s ability to administer international criminal justice. The Trial Chamber also noted that
“the testimony was not challenged by the Accused”. See Trial Judgement, para. 72, note 171.
325 ARTICLE 19’s brief discusses other human rights instruments that guarantee freedom of expression. See ARTICLE
19 Amicus Brief, para. 3. While the Appeals Chamber acknowledges that these instruments contain freedom of
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50
163. Hartmann also relies on an Appeals Chamber decision in Br|anin to support her argument
that the Trial Chamber erred by failing to consider the public’s right to receive information
disclosed by Hartmann in evaluating the proportionality of the interference with her freedom of
expression.326 In the instant case, however, the Appeals Chamber considers that the Trial Chamber
did explicitly consider the public’s right to receive information. In evaluating the proportionality of
the interference with Hartmann’s freedom of expression, it considered certain factors that were:
salient in weighing the public interests involved: namely, the public interest in receiving the
information and the protection of confidential information to facilitate the administration of
international criminal justice, which is also in the public interest, indeed, on an international
scale.327
164. Finally, the Appeals Chamber considers ARTICLE 19’s discussion of national legal
standards regarding freedom of expression.328 While ARTICLE 19 sets out different ways in which
domestic jurisdictions address freedom of expression in the context of contempt of court, it cites no
jurisprudence to support the position that contempt proceedings for disclosing confidential
information in violation of a court order impermissibly restrict an individual’s freedom of
expression.
C. Conclusion
165. The Appeals Chamber therefore dismisses ground of appeal 2 in its entirety.329
expression guarantees, they follow a similar approach to restrictions on freedom of expression as the European
Convention and the ICCPR. The UDHR states: “In the exercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the
rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a
democratic society.” UDHR, Article 29(2). The African Charter on Human Rights and Peoples states: “Every individual
shall have the right to express and disseminate his opinions within the law”. African Charter on Human and Peoples'
Rights, Article 9(2). The American Convention on Human Rights similarly notes: “Everyone has the right to freedom of
thought and expression”. American Convention on Human Rights, Article 13(1). In Article 13(2), it restricts that right
by noting, “The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but
shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary
to ensure (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or
public health or morals.” American Convention on Human Rights, Article 13(2).
326 Hartmann Final Appeal Brief, para. 19.
327 Trial Judgement, para. 73 (internal citations omitted).
328 See ARTICLE 19 Amicus Brief, paras 30-32.
329 For the reasons given in this section, sub-ground 7.8 is dismissed. In sub-ground 2.3, Hartmann contends that the
Trial Chamber erred in law by failing to apply the principle that restrictions to freedom of expression must be
interpreted strictly and instead interpreted such restrictions to be “expensive”. The Appeals Chamber assumes that this
was meant to read “expansive”. Hartmann Final Appeal Brief, para. 17. The Appeals Chamber considers that this
amounts to a vague, obscure, and undeveloped submission and therefore summarily dismisses it. In sub-ground 2.6,
Hartmann, referencing her final trial brief, argues that the Trial Chamber’s findings are inconsistent with the Tribunal’s
commitment to transparency and its responsibility to victims and criminalised any public discussion of the facts
contained in her publications. Hartmann Final Appeal Brief, para. 20. The Appeals Chamber considers that Hartmann
has not demonstrated a legal error that invalidates the Judgement of the Trial Chamber or that would result in a
miscarriage of justice within the scope of Article 25 of the Statute. In sub-ground 2.7, Hartmann contends that the Trial
Chamber erred in law when it failed to apply internationally accepted principles regarding freedom of expression,
referencing an entire section of the Trial Judgement. Hartmann Final Appeal Brief, para. 21, note 34. The Appeals
Chamber considers that it is insufficient to assert that an entire section of a Judgement is an error of law or fact, without
identifying further the purported error, and therefore summarily dismisses this sub-ground. Hartmann argues in sub-
Case No. IT-02-54-R77.5-A 19 July 2011
51
XIII. SENTENCE – SUB-GROUNDS 2.11 (IN PART) AND 2.16
166. In sub-ground 2.11, Hartmann argues that the Trial Chamber erred in law or fact when it
failed to apply a proportionality test to her sentence.330 In sub-ground 2.16, Hartmann argues that
the Trial Chamber erred in law when it failed to determine whether less intrusive sanctions, such as
conditional discharge, would have been sufficient and proportionate in the circumstances.331
167. The Appeals Chamber recalls that Trial Chambers are vested with broad discretion in
determining an appropriate sentence. In general, the Appeals Chamber will not revise a sentence
unless the appellant demonstrates that a Trial Chamber has committed a discernible error in
exercising its discretion or has failed to follow the applicable law.332
168. In this case, the Trial Chamber fined Hartmann €7,000.333 It reached this determination after
assessing the gravity of the offence and considering whether any aggravating or mitigating factors
existed. Regarding the gravity of the offence, the Trial Chamber noted that, by virtue of Hartmann’s
actions, there existed a real risk that states may not be as forthcoming in their cooperation with the
Tribunal where provision of evidentiary material was concerned.334 Consequently, this negatively
impacted the Tribunal’s ability to exercise its jurisdiction to prosecute and punish serious violations
of humanitarian law as prescribed by its mandate.335 Additionally, the Trial Chamber found that the
Book that gave rise to the criminal proceedings against Hartmann was still available for sale and
that evidence suggested that it had been translated into Bosnian for wider distribution.336
169. The Trial Chamber did not find any aggravating factors. In assessing mitigating factors in
the case, the Trial Chamber considered inter alia Hartmann’s character as a respected professional
and her indigence.337 Finally, it noted that, in determining the appropriate penalty, it took into
account the need to deter future wrongful disclosure of confidential information.338
ground 2.8 that the Trial Chamber erred in law and fact by failing to take into account certain factual considerations
relevant to the case, principally those identified in the testimony of Mr. Joinet, a witness of fact for Hartmann.
Hartmann Final Appeal Brief, para. 22. The Trial Chamber stated in note 176 of its Judgement that it had considered the
evidence of Louis Joinet, but that his testimony largely consisted of policy considerations and legal opinions and thus
did not advance the Defence case. Trial Judgement, note 176. The Appeals Chamber is satisfied that the Trial Chamber
did not ignore his testimony and therefore dismisses this sub-ground. Sub-ground 2.14 is duplicative of sub-grounds
5.1-5.3 and is therefore dismissed.
330 Hartmann Final Appeal Brief, para. 25.
331 Hartmann Final Appeal Brief, para. 29.
332 Šešelj Contempt Appeal Judgement, para. 37.
333 Trial Judgement, para. 90.
334 Trial Judgement, para. 80.
335 Trial Judgement, para. 80.
336 Trial Judgement, para. 82.
337 Trial Judgement, para. 85.
338 Trial Judgement, para. 88.
Case No. IT-02-54-R77.5-A 19 July 2011
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170. Hartmann has identified no error with the reasoning of the Trial Chamber. She simply
asserts that the Trial Chamber erred in issuing a disproportionate sentence and that it erred in not
finding that a conditional discharge was a more appropriate sentence. Therefore, she has not
demonstrated that the Trial Chamber gave weight to extraneous considerations, failed to give
weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which
it exercised its discretion, or issued a decision so unreasonable or unjust that the Appeals Chamber
could infer that the Trial Chamber must have failed to exercise its discretion properly.339
171. The Appeals Chamber therefore dismisses sub-grounds of appeal 2.11 (in part) and 2.16.
XIV. DISPOSITION
172. For the foregoing reasons, the Appeals Chamber,
PURSUANT to Article 25 of the Statute and Rules 77, 77 bis, 117, and 118 of the Rules;
NOTING the respective submissions of the Parties;
DISMISSES all the grounds of appeal advanced by the Appellant, Ms. Florence Hartmann;
AFFIRMS the imposition of a fine of €7,000, payable to the Registrar of the Tribunal in two
instalments of €3,500 on 18 August 2011 and 19 September 2011; and
339 See Br|anin Appeal Judgement, para. 500.
Case No. IT-02-54-R77.5-A 19 July 2011
53
INSTRUCTS the Registrar of the Tribunal to take the necessary measures to enforce the
Judgement.
Done in English and French, the English text being authoritative.
________________________ ________________________
Judge Patrick Robinson, Presiding Judge Andrésia Vaz
__________________ __________________ ___________________
Judge Theodor Meron Judge Burton Hall Judge Howard Morrison
Dated this nineteenth day of July 2011
At The Hague
The Netherlands
Seal of the Tribunal
Case No. IT-02-54-R77.5-A 19 July 2011
54
Annex 1004
Prosecutor v Tolimir Case No. IT-O5-88/2-T,Trials Chamber (12 December 2012),
(s)
[]
−
[]
Annex 1005
Prosecutor v Tolimir Case No. IT-O5-88/2-A,Appeals Chamber (8 April 2015),
Annex 1006
Annex 1007
Michael Rostovtzeff, Iranians and Greeks in South Russia (1922)
Pursuant to Rules of the Court Article 50(2), Ukraine has provided only an extract of the
original document constituting this Annex. In further compliance with this Rule, Ukraine has
provided two certified copies of the full document with its submission.
IRANIANS GREEKS
SOUTH
IN
RUSSIA
BY
M. ROSTOVTZEFF, HON. D.LITT.
PROFESSOR IN THE UNIVERSITY OF WISCONSIN
MEMBER OF THE RUSSIAN ACADEMY OF SCIENCE
OXFORD
AT THE CLARENDON PRESS
1922
•
TO
COUNT A. BOBRINSKOY, PROFESSOR N. KONDAKOV,
DR. ELLIS H. MINNS
AND
TO THE MEMORY OF
V. V. LATYSHEV + 1921, J. I. SMIRNOV + 1918,
V. V. SKORPIL + 1919, N. I. VESELOVSKY 1918.
CONTENTS
I. INTRODUCTORY
II. THE PREHISTORIC CIVILIZATIONS
III. THE CIMMERIANS AND THE SCYTHIANS IN
SOUTH RUSSIA (EIGHTH TO FIFTH CENTURIES
B.C.).
IV. THE GREEKS ON THE SHORES OF THE BLACK
SEA, DOWN TO THE ROMAN PERIOD. 61
V. THE SCYTHIANS AT THE END OF THE
FOURTH AND IN THE THIRD CENTURY B.C. 83
VI. THE SARMATIANS 113
VII. THE GREEK CITIES OF SOUTH RUSSIA IN
15
35
PAGE
I
THE ROMAN PERIOD 147
VIII. THE POLYCHROME STYLE AND THE ANIMAL
STYLE 181
IX. THE ORIGIN OF THE RUSSIAN STATE ON
THE DNIEPER.
BIBLIOGRAPHY
INDEX .
210
223
239
] ]
THE PREHISTORIC CIVILIZATIONS
THROUGHOUT the classic East-in Mesopotamia, in Elam, in
Turkestan, and in Egypt-the dawn of civilized life is marked by
two phenomena, one characteristic of the neolithic age, the other
of the earliest metal periods. I refer to the splendid development
of pottery in the neolithic period, especially painted pottery with
naturalistic and geometric decoration ; and to the wonderful impetus
which civilization received, in all these places, at the metal epoch.
The painted pottery of Central Asia, of Susa, of Turkestan, of Mesopotamia,
of Asia Minor, of Egypt, still belongs to the prehistoric
period ; but in several of these regions the age of metals inaugurates
a historic period which is accompanied not only by artistic development
but also by written documents. The proto-historic epoch is
marked by rich civilizations which make copious use of metals,
especially copper and, later, bronze-never iron-and which we are
accustomed to call copper and bronze civilizations, on the analogy of
the prehistoric epochs in Central Europe, although the names are
singularly inappropriate to the abundant and varied life of the East
in the third millennium B.C.
Southern Europe passed through the same stages. No need to
speak of the brilliant Cretan or Aegean civilization, in which a period
of neolithic painted pottery, and a chalcolithic period, were succeeded
by a rich historic life, with which we are ill acquainted it is true,
but only because we are unable to decipher Aegean texts. We must
examine, however, the corresponding phenomena in the civilized life
of Central and Eastern Europe, seeing that the region of the Russian
steppes was one of prime importance, as the home not only of a
neolithic painted pottery but of a metal civilization of particular
splendour.
The two areas do not coincide. The painted pottery is characteristic
of the neolithic and chalcolithic epoch on the banks of the
great western rivers, the Dniester, the Bug, and the Dnieper, whereas
the metal culture principally flourished on the banks of the Kuban
at the other extremity of the steppes.
16 THE PREHISTORIC CIVILIZATIONS
The neolithic painted pottery of the Ukrainian or Trip6lye type,
so called from a hamlet near Kiev where Chvojka found the first
examples, belongs to a group of Central and South European pottery
which we call spiral and maeander pottery. Wherever it is found, it is
partly painted and partly incised. Its presence has been observed 1n
several districts from the shores of the Adriatic to the shores of the
Black Sea. Its expansion coincides approximately with the basins of
the Danube and its tributaries, of the Dniester, the Bug, and the
Dnieper. I cannot deal with all the difficult and delicate questions
which have been raised by the various types of this ware : which
came first, incised or painted decoration ; what was the principal
centre, the shores of the Adriatic, or the shores of the Black Sea ; and
what is the relation between this pottery and the different racial groups
which subsequently formed the population of Western Europe.
What concerns us chiefly is the generally accepted fact that the
Tripolye type of painted pottery-the pottery of South Russia,
Galicia, and Rumania--is the richest and most highly developed
branch of the family, and the most original as well. The shapes show
great wealth and variety compared with those on the Danube and its
tributaries. The ornamentation is by no means restricted to spiral
and maeander. As in the contemporary pottery of Susa, the geometric
decoration is combined with geometrizing animal and vegetable decoration
which uses as ornaments figures of men, animals, and plants.
Even the arrangement of the ornament in parallel zones, and the
so-called metopic style of decoration, is not unknown in the painted
pottery of South Russia. In South Russia, as everywhere else, the
spiral and maeander pottery is accompanied by numerous clay figures
of very various primitive types, representing human beings-especially
women -animals, pieces of furniture, and sacred implements.
The systematic excavations of Chvojka and of Volkov on the
Dnieper, of-Ernst von Stern in Bessarabia, of Hubert Schmidt in
Rumania, and of Hadaczek in Galicia, have shown that the men who
produced the painted pottery were by no means wholly primitive :
they were no longer hunters or nomads : they dwelt in villages,
sometimes fortified ; owned houses of a common neolithic form,
half cave, half hut ; lived on agriculture ; and had a great number of
domestic animals at their disposal. We have no decisive evidence as
to their mode of burial. The best-preserved pots and figurines were
found neither in houses nor in tombs, but in curious structures
suggesting, on the one hand, a Roman columbarium, on the other
a temple for religious ceremonies connected with funerals. 'These
structures are sometimes of considerable size; they were roofed, and
THE PREHISTORIC CIVILIZATIONS 27
significantly enough by means of geometric patterns as in the second
Maikop vase.
Before proceeding I must point out the close resemblance, in
general ornamentation and in the treatment of animals, between the
Nubian handle and, on the one hand, the Maikop objects, on the
other the Egyptian ivories. The embossed work of the Maikop gold
plaques and of the Nubian handle finds a parallel outside Egypt in the
Sumerian objects from Astarabad recently published by myself.
We may also notice the great similarity between the panthers on the
second Maikop vase and on the Nubian handle : in both we find a
tendency to render the fur of the animal by means of geometric ornaments.
'The same peculiarity may be observed in the well-known gold
plaques, forming the mounting of a stone knife, in the Cairo Museum.
The bulls of the Maikop find do not differ from each other or
from the Staromyshastovskaya figurine. The type is constant : a
huge head with an exceedingly long, almost square muzzle, enormous
lyre-shaped horns, a massive body with drooping hind-quarters, short
heavy legs, big round eyes with a dot in the middle. This type of
bull is entirely foreign to Egypt. The only parallels are furnished by
Elamitic and by one or two Sumerian monuments ; especially
Elamitic seals, and seal-impressions on proto-Elamitic tablets. Very
curious, the wild ass or Przhevalski's horse, the oldest representation
of a horse on monuments. The animal on the Maikop vase is certainly
not an ass : a glance at the rows of asses on Egyptian palettes
makes that clear. The only counterpart to our animal is the probably
contemporary figure on an ivory plaque from Susa. The likeness is
conspicuous : the same muscular body and expressive head, the same
treatment of the mane and tail by means of straight lines.
The wild boar and the bear are peculiar to our find. There are
no representations of these animals on early monuments of the Near
East or of Egypt. The types of bird are almost identical with those
on various bone and ivory objects from Egypt. The Maikop birds
are of course rougher and less individual than the Egyptian, but the
stylistic treatment of the plumage is the same in every detail.
The analysis of the artistic monuments of Maikop has shown
throughout a very close affinity with the earliest monuments of the
Near East and of Egypt, which belong to a period when the arts of
Egypt and Asia were still closely related, an did not present any of
the very marked differences observable during the historic period. The
monuments of Maikop, though very similar to those of Elam, Sumer,
and Egypt, are as original as any of these groups. I have no ground
for affirming that the monuments of Elam were imported from
34 THE P R E H I STO R I C C I V I L I Z A TI O N S
Supreme Goddess of the banks of the Dnieper, the mother of the
mythical Scythian chiefs. She appears, therefore, to have been a
Mother Goddess goddess of the productive forces of Nature, like
the Mother of the Gods and the Potnia Theron of Asia Minor.
As far as I know almost all students of the Amazonian legend, led
astray by the semi-historic character of the story, have been induced
to explain it by an historical misconception. The beardless Hittitesthat
is the latest explanation -were taken for women and so gave rise
to the legend. Others consider that the Cimmerians were, so to speak,
the proto-Amazons. Nothing is less likely. Why not adopt a much
simpler explanation ? The Amazons are localized wherever there
was an ancient cult of the Mother Goddess ; wherever that cult was
connected, as it regularly was, with a social and political organization of
matriarchal type; wherever women were not only mothers and nurses,
but warriors and chieftains as well. The matriarchal stratum and the
cult of the Mother Goddess are very ancient in Asia Minor. They are
the mark of the pre-Semitic and pre-Inda-European population-the
autochthonous population,if we care to use the word. Semites and IndaEuropeans
brought with them patriarchal society and the cult of the
supreme God. This cult imposed itself on that of the Mother Goddess,
but did not destroy it, least of all in Asia Minor. With the cult of the
goddess, the Amazons, her warrior priestesses, likewise survived.
Not only the cult of the Mother Goddess, but also the matriarchal
structure, persisted for a very Jong time in certain places, especially
on the shores of the Black Sea-in the immediate neighbourhood of
the Greeks-among the Sindians, the Maeotians, the Sauromatians,
and, in the Crimea, among the 'Taurians, who sacrificed travellers to
their Parthenos, their virgin goddess. It is quite natural that the
Greeks, who created the legend of the Amazons on their first contact
with the matriarchal tribes of Asia Minor, should have made the
Amazons of Asia Minor emigrate to South Russia and the Caucasus,
where matriarchy, the cult of the Mother Goddess, and the specific
ritual of that cult remained in full vigour.
This somewhat lengthy digression was necessary in order to show
that the Sauromatians, the Sindians, the Maeotians, and the TaUrians
were really the oldest inhabitants of the Kuban, and that it was probably
they who created the civilization of the copper age, and who were
able to infuse it into their conquerors, the Cimmerians, and later the
Scythians. To show, also, that civilized life never ceased on the banks of
the Kuban, and that the Maeotian tribes were the element in the population
which developed that civilization,under the influence of their neighbours,
often their masters, the Cimmerians, the Scythians, the Greeks.
I I I
THE CIMMERIANS AND THE SCYTHIANS IN SOUTH
RUSSIA (VIII-VT CENTURIES B.C.)
THE oldest historical allusions, Greek and Assyrian, to South
Russia belong or refer to the eighth and seventh centuriesB.c., and
tell us of two peoples who played a prominent part at that period,
and not in the history of South Russia alone : the Cimmerians and the
Scythians. The Assyrian documents-oracles, letters, and chronicles
belong to the reigns of Sargon II, Sennacherib, Esarhaddon, and
Ashurbanipal, that is, to the second half of the eighth and to the
seventh century, and reveal to us a somewhat troubled period in the
annals of the two great states in the basin of Euphrates-the Chaldian
kingdom of Van (Armenia), and Assyria.
Inda-European tribes were advancing from the east and north to
the frontiers of these kingdoms. The tribes which are constantly
being named are the Gimirrai (Cimmerians) and the Ashguzai
(Scythians), the former attacking the Chaldian kingdom from the
north, the latter pressing forward, step by step, into the eastern
portions of the Vannie and Assyrian kingdoms.
I cannot dwell long upon the history of these movements. We
know that the Cimmerians forced their way to the Vannie frontier as
early as the end of the eighth century ; invaded part of the kingdom,
which was enfeebled by contests with Sargon II, in the last years of
the century, after 714 ; and probably succeeded in mingling with the
Vannie population. At the beginning of the seventh century, when
Rusas I was king of Van (680--645 B.C.), and Esarhaddon and Assurbanipal
of Assyria, the Cimmerians, in alliance with Rusas II and with
several Indo-European tribes, such as the Medes (Madai), the Mannaeans,
the Sakerdians, began a fierce struggle with Assyria. There
is good reason to suppose that this struggle was partly caused by the
heavy pressure of the Scythians, advancing eastwards in force on the
Vannie kingdom and its eastern neighbours. The common interest
of the Scythians and of the Assyrians accounts for the alliance concluded
between Esarhaddon and the Scythian king, Bartatua, which
was undoubtedly aimed at the allied Chaldians and Cimmerians. The
36 THE CIMMERIANS AND THE
defeats which the enemies of Assyria sustained in this conflict, and
the subsequent advance of the Scythians, forced the Cimmerians,
about 66o, to invade Asia Minor, where they encountered resistance
from the kingdom of Lydia, assisted by Assyria. Repulsed, the Cimmerians
renewed their onslaught in 652, and succeeded in destroying
the Lydian kingdom and pillaging the whole of Eastern Asia Minor.
A fresh Assyrian attack, and the victorious advance of the Scythians
about 637, broke the power of the Cimmerians, and reduced their
kingdom to a fraction of Cappadocia, which remained permanently
Cimmerian : Cappadocia was always called Gimir by the Armenians.
It was now the turn of the Scythians : they carried terror and destruction
all over Asia Minor, especially the southern and eastern parts,
which they ruled for twenty-eight years. Some parts of the country
were occupied by the Scythians permanently : Sakasene and Skythene
in Armenia were always peopled by Scythian tribes. It was the
Medes, and after them the Persians, who put an end to the anarchy
which these two terrible invasions had caused in Asia Minor.
Parallel with this Assyrian tradition, which is confirmed by the
archaeological data mentioned in the first chapter, we have another
tradition, this time Greek, referring to the same events, not, however,
from the point of view of Asiatic history, but from that of the Greeks
who dwelt on the northern shore of the Black Sea. We hear in the
Odyssey of a people called Cimmerians who lived in a mythical
country of fog and darkness on the shore of the Euxine. Greek
mythology always connected the Black Sea, the Euxine, with the
world of departed spirits. The White Island of Achilles, the land of
the Hyperboreans, the Crimea, were at once real countries and regions
peopled with the souls of heroes. It is the same in the Odyssey,
although the writer of the passage may well have heard of real Cimmerians
inhabiting the northern shore of the Black Sea. A little later,
Greek historic tradition incorporated in its historical and geographical
treatises distant memories of the events which took place in the Asia
of the seventh century B. c. I mean the traditions which tell the story
of the world empires of Ninus and Sesostris. Many attempts have
been made to reconcile these historic legends with the established
facts of Mesopotamian and Egyptian history. For my own part,
I believe that the legends do reflect historical tendencies in these
countries, but that it is very difficult to assign them to a definite
period. Had I to choose among_more or less probable hypotheses,
my choice would fall on the period in which the last Assyrian and
Egyptian dynasties, having repulsed the Scythian attacks, were
anxious to justify, by means of such legends, their aspirations to that
S CY T H I AN S I N SO U TH RU S S I A 37
universal dominion which was crumbling under Iranian assaults :
at that epoch, I should conjecture, the legends were transmitted from
east to west and became part of Greek historical tradition.
More important, and nearer to the truth, is the Greek tradition
which tells the story of the conquest of South Russia by the Scythians
and of their struggles with the Cimmerians. It may be supposed to
have grown up from the sixth century onwards in the Greek colonies
on the shores of the Black Sea, and to have been based on ancient
local tradition.
Some echoes of this tradition have been preserved by Herodotus
and by Strabo, who tell us of a great Cimmerian kingdom by the
Black Sea, occupying the northern shore of the Black Sea, with
its nucleus on both shores of the straits of Kerch. Aeschylus,
Herodotus, and Strabo give the names of several localities, situated
in what was later the kingdom of the Bosphorus, which were closely
connected with the Cimmerians : the straits of Kerch were invariably
known, in Greek tradition, as the Cimmerian Bosphorus; a part of
the straits, near Panticapaeum, was cal1ed the ferry of the Cimmerians ;
a number of fortified places on the straits were called the Cimmerian
forts ; the whole country is described by Herodotus as the Cimmerian
land, especially the northern part of the Taman peninsula, which is
separated from the rest of the peninsula by an earth wall which was
believed to be Cimmerian ; finally, there were two towns, on the banks
of the straits, which bore the name of Kimmerikon or Kimmerie.
Erwin Rohde wished to explain these reminiscences as due to the
archaizing tendency of the kings of the Bosphorus, anxious to connect
their kingdom with Homeric. legend. It cannot be denied that the
tyrants and the peoples of the Bosphorus had a kind of romantic
tenderness for the traditions which linked the kingdom with the
Amazons, the Arimaspians, and the Cimmerians. One has only to
think of the hundreds of vases in the so-called Kerch style, belonging
to the decadent period of red-figured vase-painting, with representations
of Amazons fighting with Greeks, of Arimaspians fighting with
griffins. But this by no means implies that all these traditions were
mvented by the tyrants of the Bosphorus. The rulers and their
subjects merely laid hold of a tradition which already existed and had
often been repeated, and perpetuated it in their art and in their
literature. Like the legends of Amazons and Arimaspians, the geographtcal
names which recall the Cimmerians unquestionably go back
to the sixth or the seventh century, and at that period we have no right
to suppose that the earliest Greek colonists were archaistically minded,
or that they regarded the Cimmerians with particular warmth. There
38 THE CIMMERIANS AND THE
is no doubt that when the colonists arrived they found strong and
actual traces of the Cimmerians in their new home.
Herodotus, who probably used an earlier literary source, very
likely Hecataeus of Miletus, was able to tell the story of the last
moments of the Cimmerian kingdom. The Scythians expelled them,
vanquished them, and pursued them along the shores of the Black
Sea and into Asia Minor. Herodotus' account, though mingled with
much legendary matter, is possible and probable. We have already
spoken of the Scythian advance in the Assyrian East. It may well
have been part of a general advance of Scythian tribes mixed with
Mongolians, moving simultaneously along both shores of the Caspian
Sea : one body passing north of the Caspian and pouring into South
Russia, the other coming from the South Caspian littoral and making
for the Vannie kingdom and the Assyrian empire.
Was it this advance that drove the Cimmerians to the Caucasus
and the kingdom of Van ? Not necessarily. The constant intercourse
between the Crimea and Northern Caucasus, and between the
Crimea and Transcaucasia-the kingdom of Van-an intercourse
which is attested by the archaeological data cited in our second
chapter, would lead us to suppose that the southward and westward
movement of the Cimmerian tribes began long before the Scythian
advance. By their distant expeditions and conquests, the Cimmerians
probably enfeebled their centre on the shore of the Black Sea, so that
the Scythians were able to split the Cimmerian kingdom in two, and
to weaken and destroy, one after the other, the detached wings, after
cutting off the advanced bodies of Cimmerians, southward and westward,
from their head-quarters, the Cimmerian Bosphorus. My reason
for preferring this hypothesis to the Herodotean version is the fact,
vouched for by the Assyrian sources, that a Cimmerian movement
on the Vannie kingdom took place a long time before the advance of
the Scythians : the Cimmerians appear in Asia about the second half
of the eighth century, whereas the Scythians do not figure in Assyrian
monuments until the time of Esarhaddon. 'This view is corroborated
by Strabo, who mentions a Cimmerian invasion of Asia Minor by
way of Thrace and the Dardanelles, which presupposes a branch
of the Cimmerian people established near the mouths of the Dnieper
and expelled from that region by the Scythians : this branch was also
known to the authority used by Herodotus : its existence bears
witness to the wide expansion of the Cimmerian empire. However
this may be, it is certain that the Scythians occupied the entire region
which had previously belonged to the Cimmerians in the Russian
steppes. But I doubt if they succeeded in dislodging the Cimmerians
S C Y T H I A N S I N S OUT H R U S S I A 39
from the Taman peninsula, any more than in conquering the Crimean
highlands, which were peopled by the Taurians. There is a very
obscure tradition, often repeated by Greek writers, of a fierce struggle
between the Scythians and the Macotians, especially the Sindians,
on both shores of the Cimmerian Bosphorus and on the shores of the
Sea of Azov. The legend of the origin of the Sauromatians, mentioned
in my second chapter, and another, reported by Herodotus, of a prolonged
conflict between the Scythians and opponents who according
to Herodotus were the sons of Scythian women by slaves, according
to other very ancient authorities, Sindians, suggest that the Scythians
were unable to penetrate into the Taman peninsula, which is protected
by marshes on one side and by the Cimmerian Bosphorus on the other.
They even tried to cross the straits in winter, but probably without
success. The Cimmerians and Sindians managed to organize resistance
and to preserve their independence.
To judge from the testimony quoted above, the Cimmerians
remained sufficiently long on the shores of the Black Sea to leave
numerous vestiges behind them when they were expelled. Unhappily
we have no evidence, either as to the time of their first appearance in
South Russia, or as to the length of their stay. Were they descendants
of the autochthonous inhabitants who made the graves with contracted
skeletons; or conquerors from the north, the west, or the east? The
question is as difficult as that of their nationality. Certain indications
would lead us to recognize in the Cimmerians one or more peoples of
Inda-European, probably Thracian, origin. Strabo, in a passage which
has often been quoted, identifies them with the Trerians, who were
certainly Thracians. Others, on the strength of royal names like
Teuspa, which seem to be Iranian, have argued in favour of their
Iranian extraction. I prefer the former hypothesis, and for the
following reasons. In the Assyrian references, and in such passages
of Greek writers as go back to good sources, the Cimmerians are
never confused with the Scythians. On the other hand, certain facts
can only be explained by a Thracian origin : first, the presence of
numerous Thracian names, side by side with Iranian ones, among the
inhabitants of Tanais in the Roman period ; secondly, the existence,
hitherto unexplained, of a dynasty of kings with Thracian names
ruling in the Cimmerian Bosphorus and m the Taman peninsula
from the fifth century B. C. I can only account for these facts if
there was a strong Thracian element in the population of the Greek
towns in the state of the Bosphorus, and especially among the
governing classes. I would say the same of the reigning families
among the Sindians in the Taman peninsula.
S C Y T H I A N S I N S O U T H R U S S I A 59
times on cylinders representing a hero fighting with a lion. The
whole series bears a conspicuous resemblance to the objects found in
the tumuli of the Kuban. The treatment of the animals is the same
as in the heads and figures on the pole-tops of South Russia. Curiously
enough, on an axe from Khinaman near Kirman in south-western
Persia, close to the frontier of Baluchistan, we find the apotropaic eye
which forms the principal decoration of the archaic standard, already
mentioned, from the Kuban (pl. XI, E). The most remarkable specimen
of this Iranian series, and the one which offers the most striking analogy
with kindred objects from South Russia, is the axe from Bactria, of
bronze inlaid with silver, recently published by Sir Hercules Read : a
symplegma of three animals, a lion fighting with a boar and trampling
on a wild goat (pl. XI, A). Apart from the technique of inlay, derived
from the process current in Sumerian Babylon, I must draw attention
to the combination of three animals in one group, a motive which was
taken up by South Russian as well as by Ionian art, and to the reverted
heads of the lion and the goat, the prototype of that antithetic arrangement
of the animal body which I mentioned above. I reserve a more
detailed discussion of the Scythian animal style for my eighth
chapter: but I was obliged, before proceeding farther, to point out
that this style, albeit very distinctive and very original, only established
itself in South Russia after a long period of contact with AssyroPersian
art, during which it was subjected to very powerful influence
from that quarter, leading to the amalgamation of motives from both
styles which we notice at Kelermes, in the battle-axe and in the lion
pectoral with amber inlay.
The Oriental aspect of Scythian civilization in the sixth and fifth
centuries could be demonstrated by means of other parallels, and
may be taken as proven. We are justified in affirming that Scythian
art, at the outset, was a branch of that mixed Iranian art of which
hitherto we knew only the Persian branch. The Scythian branch
presents itself on the one hand as a development of motives inherited
by Iranian art from the powerful civilization. of Mesopotamia and
Elam, and on the other as an attempt to combine that art with another,
ruder and more primitive, the origin of which is as yet unknown.
From the fifth century onwards Scythian art, like Persian, was
influenced, more and more strongly, by the Greek art of Ionia. This
influence was brought about exclusively by continuous intercourse
between the Greek and the Scythian world. The intermediaries were
the Greek colonies, especially the towns of the Bosphoran kingdom.
The subject will be treated at length in the succeeding chapter.
One remark in conclusion. In a general work like the present
60 CIMMERIANS AND SCYTHIANS
I cannot dwell in detail on the hotly disputed problem of Scythian
nationality. It will have been gathered from the preceding pages,
that I believe the Scythians to have been Iranians, although lately
several high authorities, such as Geza Nagy, Minns and Treidler,
have revived the Mongolian or Turanian theory, which seemed to
have been completely disposed of by the judicious observations of
Schiefner, Zeuss, Gutschmid, M~llenhoff and Tomaschek. It is
difficult to insist on either hypothesis : decisive proofs are lacking
on both sides. It has been thought that a conclusive argument in
favour of the Iranian theory was furnished by the Iranian names of
native or semi-native citizens of Panticapaeum, Tanais and Olbia.
But it is forgotten that these names be1ong to the Roman period, and
bear witness to Sarmatian, not Scythian infiltration into the Greek
cities. Stress has also been laid on the Mongolian physiognomy of
the Scythians as represented on Bosphoran monuments of the fourth
and third centuries B. c. But it must be borne in mind that the
monuments give two ethnographical types : one Mongolian, as in
the gorytus from Solokha, the other Indo-European, as in most of the
other monuments. In spite of this I entirely agree with those who
believe the Scythians to have been of Iranian extraction, although
I readily admit a strong infusion of Mongolian and Turanian blood.
My reasons are mainly based on historical, archaeological, and religious
considerations, since the study of the language does not provide
decisive criteria. Our information about the Ashguzai, who are the
same as the Scythians, and about the Sacians; their close affinity with
the Sarmatians, whose Iranian nationality is not disputed; and the
evidence of Herodotus, confirmed by archaeology, as to the religion
of the Pontic Scythians, a matter which we shall discuss later; leave
no doubt that the Scythian tribes of South Russia were Iranians,
nearly akin to the Medes and Persians, but belonging to another
branch of the stock. It is well known that the linguistic evidence,
founded on the few Scythian words transmitted to us by the Greeks,
is in no way opposed to this hypothesis. But sufficient emphasis has
not been laid on the archaeological evidence, which seems to me almost
decisive. We have seen that very ancient monuments, which we
have every reason for assigning to the Scythians, can only be explained
by Iranian parallels; and that it is impossible to define the general
character of Scythian art, except by connecting it with Persian art of
the same period.
IV
THE GREEKS ON THE SHORES OF THE BLACK SEA,
DOWN TO THE ROMAN PERIOD
I HA VE already spoken of the very ancient relations between the
mining districts on the shores of the Black Sea and the peoples of
Asia Minor and doubtless of Greece as well. These relations probably
date from the same time as the first appearance of iron in what was
later the Hellenic world. I have quoted the very old Greek legends
as to the origin of iron. Iron and iron weapons were thought to have
been the invention of the Chalybians and the Scythians. I am
convinced that it was the export of metals from the south-eastern
corner of the Black Sea which gave rise to the prehellenic, probably
Carian, legend of the Argonautic expedition. The Milesian version
of the story gave poetic expression to the half-military, half-commercial
enterprises of the Cari ans and other peoples of Asia Minor, sea-raids
organized by pirates and intrepid corsairs, always in quest of unknown
lands.
It is somewhere about the year 1000 B. c. that we must date two
groups of events: the development of the mining industry on the
southern shores of the Black Sea, and the first expeditions of Achaeans
and Carians in search of iron and of gold. This date is corroborated by
a fact which has not hitherto been explained: the complete absence,
beyond the straits of the Bosphorus, of that Aegean or Mycenaean
influence which is so strong, for example, at Troy. The Cretans of
the Minoan epoch, and the Myceneans of the time of Agamemnon,
did not frequent the shores of the Black Sea : they had nothing to
take them there: all their efforts were directed westwards. With the
object of procuring an abundant supply of good iron weapons, the
heirs of Mycenaean sea-power ventured into the distant Black Sea
regions, and opened up the route, later so popular, which led from
the Mediterranean, through the straits and along the southern coast
of the Black Sea, to the banks of the Thermodon and of the Phasis.
The adventurers from Asia Minor soon recognized, that the Black
Sea was not only rich in metals, but inexhaustibly rich in fish, and,
more important still, that the dweilers on its shores were not ferocious
62 THE GREEKS ON THE
barbarians but fairly civilized people, who had a taste for the products
of Asia Minor and were ready to trade. Accordingly they began to
found fishing stations on the shores of the Black Sea, advancing slowly,
step by step, until they finally reached the heart of the fishing district:
the straits of the Bosphorus, and the shores of the Sea of Azov, on the
one hand; and, on the other, the mouths of the great Russian rivers.
The routes, once open, were never abandoned. The lonians were
the first to follow the example of the Carians, as we can see from the
written record. We do not know the Carian version of the Argonautic
myth: but we do know the Ionian or Milesian version, which existed
as a separate poem and was also incorporated into the story of the
hero-mariner Ulysses. I agree with Wilamowitz and Friedl~nder in
believing that the tenth, eleventh and twelfth books of our Odyssey
are a reflection of the voyages of Milesian traders and privateers in the
Pontus, and that it was the Ionians who compounded that curious
medley of Greek myths from various sources, of Ionian sailors' reports,
and of those ancient religious and mythical ideas which saw, in the
Pantie region and its inhabitants, the world beyond the grave and the
souls of departed heroes. I cannot give more than a brief indication of
the views which I hold on the numerous difficult and complicated problems
suggested by the myth of the Argonauts and the later portion of
the Odyssey: I hope to return to them in a special article. But I must
insist on the high probability of the theory, pretty generally accepted in
the most recent works on the subject, that the adventures of Jason, and
fart of the adventures of Ulysses, are to be localized in the Black Sea.
do not feel certain that we can go as far as Baer, and lately Maass,
who identify the harbour of the Laestrygons with Balaklava, and the
island of Circe with the Taman peninsula: but I am persuaded that
the land of the rising sun, the Aia of the Odyssey, which seems, at the
same time, to be part of the world beyond the grave, is to be placed
on the Caucasian bank of the Black Sea. However this may be, it is
evident that the only route known to the oldest Ionian navigators was
the southern, the same which was used by their predecessors. It is
not surprising, that the earliest Ionian stations on this route were at
the two places where native centres had long existed : Sinope and
Trebizond. Trebizond has always been the best port for the transmission
of iron and copper from the Transcaucasian mines, and the
terminus of the two great trade routes from south and east. Sinope,
as Sir Walter Leaf has recently shown, was the point at which goods
brought from Trebizond, on the light vessels which are the only craft
plying on that part of the coast, were transferred to big sea-going ships,
the Ionian merchantmen. It may be that the Ionians did not stop at
72 THE GREEKS ON THE
of elders, no boule: a popular assembly, without power; finally,
constitutional fictions to disguise the reality.
Still more interesting, the social structure of the Bosphoran state
hardly differed from that of the states which we have compared with
it. The state was based on an agricultural native population, attached
to the soil : a class of great landowners, friends and kinsmen of the
king, who was himself a landed proprietor, owning the soil of the
whole kingdom ; and a very powerful class of Greek merchants, some
citizens of the cities in the kingdom, others foreigners, who owned
ships and who organized the traffic with the neighbouring semiindependent
tribes as well as with the Scythian kingdom. The king
himself was undoubtedly one of these merchants. He exported the
grain which he received as tribute from his vassals and as contribution
from his serfs. We must also reckon with a numerous lower middle
class residing in the towns, artisans and small tradesmen; and with
a numerous population of slaves, who loaded and unloaded the vessels,
laboured in the factories, and so forth.
The same structure is observable wherever a Greek population
was obliged to submit to a native, Hellenized, or Greek dynasty whose
rule was based on a native population not barbarous but accustomed
to monarchic government. Peculiar to the structure of the Bosphoran
state is the historical evolution, more easily apprehended here than
elsewhere : an Ionian Greek city transforming itself into a GrecoMaeotian
state with the Greeks in a privileged position, and gradually
changing into a Hellenistic monarchy in which the two elements are
confounded, the natives becoming Hellenized and the Greeks
gradually adopting the spirit and the habits of the natives. The dualism
can be noticed in every department of life. In religion, purely Greek
cults are replaced by various forms of native cult, particularly that
of the Great Goddess whom we have already mentioned. Nearly
every Greek town in the Taman peninsula had a temple of this preHellenic
divinity. Two of these sanctuaries have been excavated,
one near Phanagoria, where the Great Goddess was identified with
the Greek Aphrodite, the other on a promontory in one of the lakes
of the Kuban delta, that of Tsukr, where she was worshipped, as in
Asia Minor and in Macedonia, under the name of Artemis Agrotera.
We have every reason to suppose that there were temples of the same
deity near Hermonassa and in the vicinity of Gorgippia, the modern
An~pa. Thesame cult gradually became predominant at Panticapaeum,
and it is well known that the patron goddess of Chersonesus was the
Parthenos, who is represented, in the guise of Artemis, on the coins
of that city. A significant testimony to the popularity of the Great
112 THE SCYTI-IIANS
It is very difficult to say where these objects were manufactured.
Some of them may have been produced by local workmen or by Greek
immigrants in the native settlements, others by itinerant craftsmen
wandering with their tools from place to place, working here and there
to order, and using the raw material provided by their customers. In
any case, the quantity of objects bears witness to the importance of
the industry and to the wide circulation of its products.
VI
THE SARMATIANS
THE Sarmatians are first mentioned by Greek writers as a people
which advanced to the middle Don in the second half of the fourth
century. Since little was known about the new-comers at the
time, and since their name closely resembled that of the Sauromatians,
who had long dwelt on the lower Don and on the shores of the Sea of
Azov, Greek historians and geographers were misled by the similarity
of appellation into identifying the two peoples, a confusion which has
given rise to countless misunderstandings.
Herodotus and the pseudo-Hippocrates give descriptions of the
Sauromatians. Of the Sarmatians, the historians of the Roman period,
who knew them on the banks of the Danube and in the Caucasus,
Tacitus, Valerius Flaccus, Arrian, Pausanias, Ammianus Marcellinushave
left us a picture which though fragmentary is highly finished in
parts. Now the two descriptions are completely different, and precisely
in the most important and characteristic points. The Sauromatians
impressed the Greeks by a notable peculiarity of their social system :
matriarchy, or rather survivals of it : the participation of women in
war and in government, the preponderance of woman in the political,
military and religious life of the community. Among the Sarmatians,
as far as we know, there was nothing of the kind. They were a warrior
tribe like the Scythians, nomads with a mi1itary organization; hunters
and shepherds. They fought many a battle with the Roman legions :
but it is nowhere said that women appeared in the ranks of their
army, or that women played any part in their political life.
We may take it, then, that the Sauromatians had nothing to do
with the Sarmatians, that the Sauromatians were probably conquered
by the Sarmatians and then disappeared from history, only surviving
in historic tradition: writers like Ammianus Marcellinus attempting
to combine literary references to the Sauromatians, with later accounts
of the warlike Sarmatians, formidable opponents of Imperial Rome.
When first we meet them, the Sarmatians appear as a series of
separate groups moving westward in uninterrupted succession. With
the details of the movement we are but ill acquainted, for the references
in the historians of the Roman republic and empire are few and
2353 Q
114 THE SARMATIANS
sometimes exasperatingly brief: these references enable us, however,
to reconstruct, in its general outline, the Sarmatian invasion of the
South Russian steppes.
The Sarmatians, like the Scythians, belonged to the Iranian
group of Asiatic peoples. They may have been closely akin to the
Scythians ; may have belonged, like them, to those Iranian peoples
who were generally called Sacian, to distinguish them from the other
branch of the Iranians, represented by the Medes and Persians, who
were bitter enemies of the Sacians. That the Sarmatians were of
Iranian extraction has been definitely established by the study of the
Ossetian language : the Ossetians are known to be descended from
the Alans, the strongest and most numerous, as we shall see, of the
Sarmatian tribes. Ossetian, although it contains an admixture of
heterogeneous elements, is unquestionably an Iranian tongue, nearly
related to Persian.
We do not know the origin of the general term Sarmatian, applied
by Greeks and Romans to the succession of tribes which gradually
dislodged the Scythians from the steppes of South Russia. 'The
earliest writer to speak of Sarmatians was the pseudo-Scylax : he,
and Eudoxos of Cnidos, had heard of Spira on the Don in the
fourth century, about 338 B.Cc. Was this the name of a tribe,
the first to arrive? Is it not conceivable, that the resemblance of the
word vpdra to the familiar avpoirau, and the amalgamation of
the new-comers, proved, as we shall find, by archaeological evidence,
with the Sauromatians long established on the Don, led to the transformation
of the name >pdrat into aprau, and to the permanent
confusion of two distinct peoples in our historical tradition ?
However that may be, from the time of Polybius, who mentions the
Sarmatians, in 179 B. C., as enemies of the Crimean Scythians, the
name of Sarmatian was in general use among the Greeks and Romans,
to designate those Iranian peoples, who, in the third and especially
in the second century B. C., were advancing from east to west towards
the Danube and western Europe. The employment of this generic
designation for all the variously named tribes which supplanted the
Scythians in the steppes of South Russia, is evidence that these tribes
were closely interrelated.
Whence came this Nee-Iranian wave, which re-enacted the story
of the Cimmerians and the Scythians ? We have little information
about the history of Central Asia in that tangled and difficult period,
the Hellenistic. Chinese records speak of an important movement
during the Ts'in and Han dynasties : Mongolian tribes were pushed
westward by the vigorous defence of the Chinese frontier, and by the
THE SARMATIANS
construction of the Limes which we know as the Great Wall of China.
This movement probably displaced a number of Iranian tribes in
Central Asia and in 'Turkestan, who turned northward and westward,
as the Scythians had turned before them, and made for western Siberia
and the Ural and Volga steppes to the north of the Caspian : the
southern road being barred by the kingdom of Parthia. I have no
doubt that the events which took place in Central Asia during the
third and second centuries were much less elementary and more
complicated than the Chinese sources make them out ; although the
Chinese account is by no means so simple as the version given above.
For further details we must wait until the results of recent exploration
arc better known and better digested : Russian, German, French,
British and Japanese exploration in Chinese Turkestan, Seistan and
Baluchistan. The new data, linguistic, archaeological, and historical,
will perhaps afford a clearer view of Central Asiatic history
in the last centuries before and the earliest after Christ. This much
we can already affirm, that the flow of Sarmatian tribes towards the
South Russian steppes was due to the political and economic condition
of Central Asia between the fourth and the second centuries B.C.: a
symptom of which was a movement of Mongolian tribes towards the
west, and a corresponding movement of Iranians.
The second century B.C. seems to have been the critical period
of Sarmatian expansion in South Russia, although archaeological
evidence and a few historical passages indicate that Jong before this
period Sarmatian tribes had been slowly moving towards the west.
But the earliest certain notice of Sarmatians in the South Russian
steppes dates from the second century B. C. I have already quoted
the evidence of Polybius, proving the presence of Sarmatians between
Don and Dnieper_in 179. From the part played by the Sarmatian
king in the political events of this perioa, it is clear that by 179 Sarmatian
power was firmly established between Dnieper and Don, counterbalancing
the Scythian power, which, as we have seen from the
archaeological evidence treated in the last chapter, centred in the
Crimea. To judge from the chronology of Scythian tumuli, it was
in the second half of the third century that the Sarmatians crossed
the Don and invaded the steppes between Don and Dnieper. This
date is confirmed by Strabo. The authority used by Strabo for his
seventh book, Artemidorus of Ephesus, who wrote at the end of the
second century, bears witness that about this time the advance guard
of the Sarmatians, the Iazygians, reached the steppes between
Dnieper and Danube, while the next in order, the Roxalans or White
Alans, were between Don and Dnieper and figured on. the political
116 THE SARMATIANS
stage in the war which Mithridates the Great was waging in the
Crimea. Behind the Roxalans, another of Strabo's informants, the
authority used for the eleventh book, Theophanes of Mytilene, a
contemporary of Pompey and his biographer, alludes to Aorsians as
occupying the left bank of the Don and the shores of the Sea of Azov,
and to Siracians as holding the valley of the Kuban. Farther east
we must suppose that the Alans were supreme : it is not long before
they appear as the dominant tribe in the eastern steppes of South
Russia.
The earliest reference to the Alans belongs to the year A. D. 35.
Josephus, who mentions them, leads us to suppose that they had
held the Kuban valley for some time, and were trying to force their
way, through the passes of the Caucasus, to Iberia and Armenia, with
the ultimate intention of fighting the Parthians. It seems, however,
that their attempt was frustrated, that they turned aside and followed
the other Sarmatian tribes towards the Don and the Dnieper. In
A.D. 49, during the troubles which arose in the Cimmerian Bosphorus,
the immediate neighbours of the Bosphoran kingdom were Aorsians
and Siracians, not Alans. But these tnbes seem to have been gradually
invaded by the Alans and to have combined with them to form a unit
which was thenceforth known by the name of the dominant tribe,
the Alans. The continual advance of the Sarmatians soon carried
them beyond the Dnieper in the direction of the Danube. In A.D. 50,
we find the lazygians between Theiss and Danube, and the Roxalans
beyond the Dnieper.
The Sarmatians now became an imminent danger to Roman
power, which was threatened from two different quarters. The
provinces and vassal kingdoms south of the Caucasus daily anticipated
a flood of conquerors from the steppes beside the Kuban, while the
Danubian provinces were already feeling the pressure of the Sarmatian
vanguard. Little is known about the conditions on the Dnieper
at this period, and between Dnieper and Danube. The region seems
to have been the meeting-place of several currents : a Thracian
current of Getians or Dacians, who took Olbia in the middle of the
first century B.C.; a Celto-Germanic current of Galatians and
Scirians in the third century, and later of Bastarnians, who appear
to have occupied at least a portion of the Dnieper basin ; and, lastly,
the Sarmatian current. What matters most to us, is that from this
period, the first century B. c., the Iranians maintained regular and
sometimes cordial relations with the Germanic and Thracian tribes,
and that they dwelt side by side with them in the succeeding centuries.
From the first century B. C., therefore, Rome had to face a new
THE SARMATIANS
enemy on her frontiers: the Sarmatians. Time would fail me, nor
is this the place, to tell the whole story of the long and sanguinary
struggle between Roman and Sarmatian which was waged in the
Danubian provinces and especially in Lower Moesia. A brief sketch
must suffice. The Sarmatian advance beyond the Danube compelled
the Romans to take the offensive. In 62-63, Nero's general, Plautius
Silvanus, dealt a heavy blow at the forces of the Thracian, Germanic
and Sarmatian tribes, and hurled them back across the Danube.
The same Plautius Silvanus tried to reinforce the Greek oases in the
Scythian world by relieving them of the danger which threatened
them from the Scythians in the Crimea.
It is generally believed that the Sarmatians destroyed or completely
absorbed the Scythians. This is one of the many historical figments
invented by modern historians. The Scythians continued to exist as
long as the Romans were supreme on the Black Sea : explicit evidence
is furnished by the Bosphoran inscriptions of Roman imperial date.
The Scythians only disappear with the arrival of the Goths in the
third century.Bc., or rather with the destruction of the Gothic state
by Mongolian nomad tribes. It is true that the Scythians were
conquered by the Sarmatians and had to retire before them. But the
Sarmatians never managed to dislodge them from their last refuges,
the Crimea in the east, and the Dobrudzha in the west. We shall see
in the next chapter that for centuries the Scythians maintained a
strong monarchical state in the Crimea, with its centre in the neighbourhood
of Simferopol, and were powerful enough to persist in their
claim to supremacy over Olbia and the Greek towns of the Crimea.
The expedition of Plautius Silvanus opened the eyes of the Roman
government to the Sarmatian peril. Hence Nero's project for
attacking the Alans in the very seat of their power, the steppes of
Northern Caucasus. It seems to have been Nero's intention, to concentrate
his forces in the kingdom of the Bosphorus, which was to be
made a Roman province for the purpose, and thence to open an
offensive against the Sarmatian armies ; the Sarmatian empire would
be cut in two, and the Caucasus and the Danube preserved from
incessant attacks from north and east. As a subsidiary measure,
Pontus was to be transformed into a Roman province. Owing to the
dethronement of Nero, the plan was never carried out. The period
of civil war which followed the death of Nero laid the Danubian
provinces open to Sarmatian assaults. This period over, it cost the
Romans many efforts and much blood to arrest the triumphal march
of the Sarmatians and their Thracian and Germanic allies. The
famous wars on the Danube, begun by Vespasian, and continued by
118 THE SARMATIANS
Domitian, Trajan and Marcus Aurelius, though they led to the
temporary annexation of Dacia, were primarily defensive wars with
the object of interposing an effective barrier between the Danubian
provinces and the combined attacks of Germans and Sarmatians.
In the Crimea and in the Caucasus, the Romans pursued the same
defensive policy. We shall see that after Nero the kingdom of the
Bosphorus was re-established as a vassal kingdom, and entrusted with
the duty of defending the Crimea and Olbia against the Scythians,
and of keeping watch in the Taman peninsula and on the Don to
preserve the Greek colonies in that region from complete occupation
by the Sarmatians. The kingdom of the Bosphorus proving unequal
to the task, the Roman government, from the time of Hadrian
onwards, was forced to protect the rear by drawing a line of fortresses,
manned by Roman troops, round the territory of Chersonesus Taurica;
in fact, it had to resume that military occupation of part of the
Crimea, which had been taken in hand by Claudius and by Nero. Roman
policy in the Caucasus was the same. The kingdom of Iberia, which
covered the Caucasian passes, was guarded, at its most vulnerable
points, by fortresses and Roman troops : Armenia also, from the
second century A. D. The military bases, on which these two groups
of advanced posts depended, were the province of Lower Moesia for
the Crimea, and for the Caucasus the province of Cappadocia and the
legions re-installed there by the Flavian emperors.
The Alans, by themselves, were never able to cross the barriers
set up by the Romans. In 73-74, they tried to invade the Parthian
kingdom from the east: in Hadrian's time, in 135, they attempted
to cross the Caucasus and to invade Armenia from the north. Both
enterprises failed. The invasion of 135 was repulsed by the governor
of Cappadocia, the historian Arrian, whose treatise on his tactics and
order of battle against the Alans throws valuable light on Alan military
organization. The invasion of 73--74 collapsed before the might of
Parthia. On the Danube also, the Sarmatian advance was arrested,
once and for all, by the vigorous defensive measures and counterattacks
of the second-century emperors.
In the third century A.D., the situation changed. We have already
observed, that from their first appearance on the Dnieper, the Alans
maintained constant relations with the Germanic tribes, and often
joined hands with Germans and Thracians to fight the Roman legions.
What shape these relations assumed we do not know: nor what was
the character of the association, formed in South Russia during the
third century, between the Alans and the Goths, who were Germanic
tribes from the Dnieper. Was it a conquest of Alans by Goths, or
Annex 1008
Petr N. Nadinskii, Boris Grekov, and the entry on the Crimean oblast in the Bolshaia sovetskaia
entsyklopediia (The Great Soviet Encyclopedia), Vol. XXIII (Moscow, 1953)
Pursuant to Rules of the Court Article 50(2), Ukraine has provided only an extract of the
original document constituting this Annex. In further compliance with this Rule, Ukraine has
provided two certified copies of the full document with its submission.
Annex 1009
Alan Fisher, The Crimean Tatars 176, Hoover Institution Press (1978)
Pursuant to Rules of the Court Article 50(2), Ukraine has provided only an extract of the original
document constituting this Annex. In further compliance with this Rule, Ukraine has provided two
certified copies of the full document with its submission.
F%, Nt O
The
CRIMEAN
TATARS
Alan Fisher
HOOVER INSTITUTION PRESS
Stanford University, Stanford, California
176 CME Tris AND Ht USSR
return to the Crimea and national rehabihtation. For the next ten vears. the
Crimean Tatars in Uzbekistan pursued a program of action that resulted in
the application of so much pressure upon the Soviet government by 1967 that
it was forced to react in a partially satisfactory way. That the Tatars were able
to bring this pressure to bear is all the more remarkable since they had
virtually no help from spokesmen abroad. though within the Soviet Union a
growing number of non-Tatar Soviet intellectuals had begun to become
interested in their cause.
The tirst action that the Tatar leaders took was the sending of a petition to
the Supreme Soviet in June 1957. The petition. with over 6000 signatures.
asked for rehabilitation and the right to return to the Crimea. "in the light of
Leninist nationality policies." It was made in response to a report of a speech
given by Secretary A. F. Gorkin of the Supreme Soviet Presidium, published
in Izvestiia on February 1, 1957. that called for a return to Leninist
nationality policies During the next four years, four other petitions
followed. with the number of signatures rising to 18.000. Finally a massive
effort produced a petition with over 25.000 signatures that was delivered to
the Twenty-second Party Congress in October 1961.5
Probably as a response to this last petition, two Tatar leaders were tried and
sentenced in Tashkent for producing and distributing "anti-Soviet propaganda."
and "stirring up racial discord." One of them, Sevket Abduramanov,
a production supervisor of the Board of Works in Tashkent, received seven
years in a strict labor camp. The other, Enver Seferov (aged thirty-seven), a
manager of a social labor organization in Leninabad. received a five-year
! sentence.''
In 1962. a second trial resulted in the sentencing of two more Tatars to a
four- and a three-year sentence. One of the Tatar leaders. Mustafa Cemilev,
described the reasons for their arrest:
In 1962. late February, when I was working in the rare books section of the
Tashkent public library. on the subject of the history of the Crimea and the
Crimean Tatars. I met two other of my nationality interested in the same
subject. After a few weeks I decided to give a short lecture to a small group of
thirty or fort Tatars. .It was the beginning of a small movement. We
established a center not far from Tashkent. A few months later. we called it the
Union of Crimean latar Youths. and its goal was the return to our
homeland
In April, learned of several arrests by the KGB. of Murat Omerov, a worker in
a tractor factory; of Retat Hocenov, a physies student in Tashkent University;
of Seit Amza Umerov, a student of law; and Ahmed Asanov, the owner of the
house where we had been meeting. On August 10, 1962. began the trial of
Murat Omerov and Seit Amza Umerov for being in the "anti-Soviet organization,"
Union of Crimean Youth."+
Annex 1010
Roman Solchanyk, Language Politics in the Ukraine Isabelle T. Kreindler, ed. (1985)
Pursuant to Rules of the Court Article 50(2), Ukraine has provided only an extract of the original
document constituting this Annex. In further compliance with this Rule, Ukraine has provided two
certified copies of the full document with its submission.
J
Sociolinguistic Perspectives
on Soviet National Languages
Their Past, Present and Future
Edited by
Isabelle T. Kreindler
Mouton de Gruyter
Berlin · New York· Amsterdam
s
Language Politics in the Ukraine 75
purposely hindering the development of the Ukrainian language. Ukrainians,
he concluded,
should decisively struggle aginst manifestations of disrespect towards the
Ukrainian language, which can sometimes be seen in everyday life, as well as
in offices, institutions of higher education, and other establishments. The
struggle for the culture of the native language is simultaneously a
struggle for raising its authority as the vehicle of discourse for the multimillion
Ukrainian people; language is truly a "powerful organ," a mighty
voice of the people. °
The return to "Leninist norms," however, did not imply that the new
party leadership was prepared to dismantle the attributes of privilege and
superiority bestowed upon the Russian language in Stalin's time. Nor did
it mean that the dissemination of Russian in the non-Russian republics was
to be halted. On the contrary, the proposed school reform embodied in the
November 1958 theses of the Central Committee of the CPSU and the
USSR Council of Ministers - which rescinded the obligatory study of the
native language in Russian schools in the non-Russian republics -suggested
\,. that the role and status of the Russian language was to be enhanced. The
opposition that this proposal elicited in the republics led the authorities to
sidestep the language issue in the all-Union law that was adopted in December,
although eventually all of the republics passed legislation in the spirit
of the theses.87 In Ukraine, there was extensive criticism of the projected
reform by representatives of the republican party apparatus as well as the
intelligentsia. Both deputies from Ukraine who took part in the discussion
of the draft law at the USSR Supreme Soviet session - Mykhailo Hrechuka,
first deputy chairman of the Council of Ministers, and Stepan Chervonenko,
Central Committee secretary responsible for ideology -argued against
making study of the native language optional in Russian schools. This was
also the position taken by Petro Tron'ko, a secretary of the Kiev oblast
party committee, in the authoritative party journal Komunist Ukrainy.
Two highly respected men of letters, Maksym Ry!l's'kyi and Mykola Bazhan,
spoke in favor of retaining the status quo in a joint article published in
Pravda while the Supreme Soviet was in session.8 The language issue was
also discussed by party members of the Kiev writers' organization, who
rejected the notion that parents be the sole arbitrators of such an important
question as language study, and urged that control over all schools in
the republic be vested in the Ministry of Education in Kiev. 89
In March 1959, on the eve of the Ukrainian Supreme Soviet session
that was to act on the proposed school reform, Ukrainian writers met for
l :
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76 Roman Solchanyk
their Fourth Congress. The keynote speech, delivered by Bazhan in his
capacity as head of the Writer's Union, included a lengthy discourse on
the richness and beauty of the Ukrainian language and the writer's obligation
to further its development. Similarly, Ry!'s'kyi's entire presentation was
devoted to such themes as language purity and the maintenance of linguistic
standards, with appropriate references to Lornonosov, Pushkin, Maiakovskii,
Engels, and Lenin. Such sentiments also found their way into the resolution
adopted by the congress.
The Ukrainian Supreme Soviet incorporated the controversial language
thesis into its law "on Strengthening Ties between School and Life and on
the Further Development of the System of Public Education in the Ukrainian
SSR," which was adopted on April I 7 without any serious discussion. In his
report on the draft law, Minister of Education Ivan Bilodid explained that
the Council of Ministers was being charged with developing measures guaranteeing,
in the schools with the national language [as the language] of instruction,
all the necessary conditions for studying and improving the quality of instruction
of the Russian language, which is a powerful means of inter-nationality
discourse, consolidation of the friendship of the peoples of the USSR, and
familiarization of pupils with the treasures of Russian and world culture.
Similar measures were to be undertaken with regard to Ukrainian and other
languages in schools with Russian as the language of instruction for those
pupils "expressing a desire to study these language.' [t is apparent from
Bilodid's report that the accent was clearly placed on the Russian language.
This was confirmed several months later by Chervonenko, who wrote in
Komunist Ukrainy that there was a growing number of pupils attracted to
the study of Russian. "In this connection," he said, "the network of schools
with Russian as the language of instruction is being increased. [ndeed, t_ the available data indicates that after the 1958-1959 reform the proportion of
Russian-language schools in Ukraine expanded, albeit modestly, and continued
to increase steadily in the I 960s (see Table I).
More important than the respective number of Ukrainian and Russian
schools is the proportion of pupils attending each type of school. Such data
is not readily available in Soviet publications, and since the early I 970s it
appears to have been withheld altogether. That which has been published,
however, reveals a significant increase in the percentage of pupils enrolled in
schools with Russian as the language of instruction. Thus, in the 1953-1954
school year 74.9 percent of pupils attended Ukrainian schools, while 23.8
I
I
4
Language Politics in the Ukraine 101
88.
89.
90. L 91.
92.
93.
94.
87. See Yaroslav Bilinsky, "The Soviet Education Laws of 1958-9 and Soviet Nationality
Policy," Soviet Studies, Vol. 14, No. 2 (October 1962), 138-157, and
Vernon V. Aspaturian, "The Non-Russian Nationalities," in Prospects for Soviet
Society, ed. Allen Kassof (New York-Washington-London: Frederick A. Praeger,
1958), Pp. 168-173.
Bilinsky, The Second Soviet Republic, pp. 30-31. See also M. Syvits'kyi, "Problema
movy v shkolakh Ukrainy," Nashe slovo (Warsaw), January 25, 1959.
"Vykhovuvaty liudei komunistychnoho zavtra," Literaturna hazeta, December
19, 1958.
See Literaturna hazeta for March 11, 13, and 17, 1959.
Zasedaniia Verkhovnogo Soveta Ukrainskoi SSR (Piatogo sozya) (Pervaia sessiia)
(15-17 aprelia 1959 godal): Stenograficheskii otchet (Kiev: Gosudarstvennoe
Izdatel'stvo Politicheskoi Literatury USSR, 1959), p. 28.
S. Chervonenko, "Tisnyi zv'iazok z zhyttiam -- neodminna umova uspikhu ideolohichnoi
roboty," Kommuist Ukrainy, 1959,No.7, 38.
Kolasky, pp. 50-51.
It is interesting to note that in the spring of 1967 Minister of Education Petro
Udovychenko assured a visiting delegation of the Communist Party of Canada
that "whereas Ukrainians constituted 77 percent of the population, 82 percent
of all the pupils attending school are enrolled in schools in which all tuition
is in the Ukrainian language." See "Report of Delegation to Ukraine," Viewpoint
(Toronto), Vol. 5, No. 1 (January 1968), 3. The figure of 82 percent surely
refers to schools, not pupils.
95, "Sovershenstvovat' prepodavanie russkogo iazyka vo vsekh natsional'nykh
shkolakh strany," Narodnoe obrazovanie, 1974, No. 3,9.
96. XXII s"ezd Kommunisticheskoi partii Sovetskogo Soiuza. 17.31 oktaibria 1961
oda. Stenograficheskit otchet, Vol. 1 (Moscow: Gosudarstvennoe Izdate!'stvo
Politicheskoi Literatury, 1962), p. 217,
97. Programma Kommunisticheskoi partti Sovetskogo Soiuza. Priniata XXII s''ezdom
KPSS (Moscow: Izdate!'stvo Politicheskoi Literatury, 1974), pp. 115-116.
98. See Borys Lewickyj (Lewytzkyj), Polityka narodowosciowa Z.S.A.R. w dobie
Chruszczowa (Paris: Instytut Literacki, 1966), pp. 138 ff., and Jacob Ornstein,
"Soviet Language Policy: Continuity and change," in Ethnic Minorities in the
Soviet Union, ed. Erich Goldhagen (New York: Frederick A. Praeger, 1968),
pp. 132-133.
Bilinsky, The Second Soviet Republic, pp. 32-34; Kenneth C. Farmer Ukrainian
Nationali s m in the Post-Stalin Era: Myth, Symbols and Ideology in Soviet Nationalities
Policy (The Hague: Martinus Nijhoff Publishers, 1980), pp. 133ff.
See M.T. Shch[yrba], "Natsional'ni ta internatsional'na kul'tura: Pravyl'ni i
putani pohliady," Nasha kl'tra (Warsaw), 1962, No. 3, 4-5,
I.K. Beloded, Russkii iazyk -- lazyk mezhnatsional'nogo Obshcheniia narodov
SSSR (Kiev: Izdatel'stvo Akademii Nauk Ukrainskoi SSR, 1962), pp. 17-18.
For a vivid description of Bilodid's reputation among Ukrainian intellectuals,
see John Kolasky, Two Years in Soviet Ukraine (Toronto: Peter Martin Associates
Limited, 1970), pp. 66-70.
"XXII s"ezd KPPSS i zadachi izucheniia zakonomernostei razvitiia sovremennykh
99.
I 100.
,0.
❖ 101.
•' \":- .', 102. t "t 103.
Annex 1011
Theodor Meron, The Meaning and Reach of the International Convention on the Elimination of
All Forms of Racial Discrimination, American Journal of International Law, Vol. 79 (1985)
HeinOnline
Copyright Information
THE MEANING AND REACH OF THE
INTERNATIONAL CONVENTION ON
THE ELIMINATION OF ALL FORMS
OF RACIAL DISCRIMINATION
By Theodor Meron
I. INTRODUCTION
The International Convention on the Elimination of All Forms of Racial
Discrimination' (the Convention) is the most important of the general
instruments (as distinguished from specialized instruments such as those
pertaining to labor or education) that develop the fundamental norm of
the United Nations Charter-by now accepted into the corpus of customary
international law--requiring respect for and observance of human rights
and fundamental freedoms for all, without distinction as to race.' It has
been eloquently described as "the international community's only tool for
combating racial discrimination which is at one and the same time universal
in reach. comprehensive in scope, legally binding in character. and
equipped with built-in measures of implementation."
The chain of events that ultimately led to the preparation and adoption
of the Convention originated with swastika painting and additional "manifestations
of anti-semitism and other forms of racial and national hatred
and religious and racial prejudices of a similar nature" in 1959-1960."
But an explicit reference to anti-Semitism was not included in the Convention
as adopted." Nor does it mention other specific forms of racism,
except for apartheid, which is addressed in Article 3, as well as in the
Of the Board of Editors. I note in gratitude the outstanding help of my research
assistant, Donna J. Sullivan, NYU '85. Research for this article was supported by the NYU
Law Center Foundation.
'660 UNTS 195, reprinted in 5 1LM 352 (1966)
on the status of this norm as customary law, see RESTATEMENT OF THE FOREIGN
RELATIONS LAW OF THE UNITED STATES (REVISED) $702 (Tent. Draft No. 3, 1982).
Regarding human rights instruments on discrimination, see generally Marie, International
Instruments relating to Human Rights: Classification and Chart Showing Ratifications as of I January
1984, 4 HUMAN RTs. L.J. 503, 522-24 (1984).
'33 UN GAOR Supp. (No. 18) at 108, 109, UN Doc. A/33/18 (1978) (statement by the
Committee on the Elimination of Racial Discrimination at the World Conference to Combat
Racism and Racial Discrimination).
schwelb, The International Convention on the Elimination of All Fors of Racial Discrimination,
15 INT'L & COMP. L.Q. 996, 997 (1966); N. LERNER, THE U.N. CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION I (1980). On the preparatory work
of the Convention, see generally Schwelb, supra, at 997--1000; N. LERNER, supra, at I--6; 2
REVIEW OF THE MULTILATERAL TREATY-MAKING PROCESS, UN Doc. ST/LEG/SER.B/2I,
at 70-72 (prov. ed. 1982).
For the background, see N. LERNER, supra note A, at 2, 68-73; Schwelb, supra note 4,
at 1011-15.
283
284 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
Preamble. Nevertheless, anti-Semitism may be regarded as encompassed
by the general prohibitions of racial discrimination stated in the Convention.°
Although expressions of discrimination on ethnic grounds and on
religious grounds are sometimes closely related, the Convention does not
prohibit religious discrimination. The intenton, of course, was to make it
the subject of separate instruments."
The Convention drew its primary impetus from the desire of the United
Nations to put an immediate end to discrimination against black and other
nonwhite persons. Because of the strong political support of the African,
Asian and other developing states, top priority was given to the Convention
by the organs involved in its preparation, i.e., the Sub-Commission on
Prevention of Discrimination and Protection of Minorities, the Commission
on Human Rights, the Economic and Social Council (ECOSOC) and the
Third (Social, Humanitarian and Cultural Questions) Committee of the
General Assembly. Although the Sub-Commission began working on it
only in January 1964, the Convention was adopted with record speed on
December 21, 1965 and entered into force on January 4, 1969.° It has
been ratified by more states! than any other human rights treaty except
the Geneva Conventions of August 12, 1949 for the Protection of Victims
of War.'
The Convention was signed on behalf of the United States on September
28, 1966. On February 23, 1978, it was transmitted by President Carter
to the Senate for advice and consent to ratification, with far-reaching
reservations, declarations and understandings.' These reservations, declarations
and understandings have been the subject of considerable discussion!
and will not be addressed, in detail, in this study. The Senate
'schwelb, supra note 4, at 1014-15; N. LERNER, supra note 4, at 72
See ext accompanying notes 104--106 infra.
The Declaration on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief was adopted by the UN General Assembly on Nov, 25, 1981,
by Res. 36/55, 36 UN GAOR Supp. (No. 51) at 171, UN Doc. A/36/51 (1981). A
convention on the subject is still far from completion.
MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL: STATUS AS AT 3I
DECEMBER 1981, at 96, UN Doc. ST/LEG/SER.E/I (1982).
A total of 124 states. 39 UN GAOR Supp. (No. 18) at I, UN Doc. A/39/18 (1984)
"A total of 160 states. INT'L REV. RED CROSS, No. 242, Sept.-Oct. 1984, at 274.
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 UST 3114, TIAS No.
3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug.
12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Geneva Convention relative to the
Treatment of Prisoners of War (Geneva Convention No. III), Aug. 12, 1949, 6 UST 3316,
TIAS No. 3364, 75 UNTS 135; Convention relative to the Protection of Civilian Persons
in Time of War (Geneva Convention No. IV), Aug. 12, 1949, 6 UST 3516, TIAS No.
3365, 75 UNTS 287.
1978 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 440-46 [hereinafter
cited as U.S. DIGEST]; Contemporary Practice, 72 AJIL 620, 621-22 (1978),
'see, eg., Iterational Human Rights Treaties: Hearings Before the Senate Comm. on Foreign
Relations, 96th Cong., Ist Sess. (1980).
Committee authority
to interpret the
Convention.
1985] THE CONVENTION ON RACIAL DISCRIMINATION 285
Committee on Foreign Relations has not yet reported the Convention out
and is not now actively considering it. Nonetheless, the principle of law
stated in Article 18 of the Vienna Convention on the Law of Treaties!'
obligates the United States not to defeat the object and purpose of the
Convention prior to its entry into force for the United States.
The annual reports of the control organ established under Article 8 of
the Convention--the Committee on the Elimination of Racial Discrimination
(the Committee) -other documents of the Committee, the individual
comments made by members of the Committee and its practice and
jurisprudence provide ample material for critical studies of the Convention
and for assessing how well its object and purpose are being served.
The Committee's functions may be divided into three different categories.
First, and most important for this study, the examination of reports
from state parties and the submission of annual reports to the General
Assembly under Article 9. Such reports may include "suggestions and
general recommendations based on the examination of the reports and
information received from States Parties." Second, the consideration of
complaints submitted by one state party against another and alleging
violation of the Convention, under Articles 11-13. This function of the
Committee will not be discussed in this study. Third, the consideration of
individual communications under Article I4, which will be mentioned in
part Vil below.
Under Article 22 of the Convention, any disputes between state parties
over the interpretation or application of the Convention that are not
settled by negotiation or by Convention procedures or referred to another
mode of settlement may be submitted to the International Court of Justice
for decision at the request of any party to the dispute. So far, no such
dispute has been referred to the Court. While the Committee has not
been given general competence to interpret the Convention, as a treaty
organ, the Committee may be competent to interpret the Convention
insofar as is requir e d for the performance of the Committee's functions."°
Such an interpretation per se is not binding on state parties, but it affects
their reporting obligations and their internal and external behavior. It
shapes the practice of states in applying the Convention and may establish
and reflect their agreement regarding its interpretation." Whether a
particular interpretation or decision by the Committee serves such a
function can, of course, be determined only in concreto.
The object of this study is to analyze and interpret some key provisions
of the Convention--considerations of space compel selectivity---with at"
opened for signature May 23, 1969, UN Doc. A/CONF.39/27 (1969), reprinted in 63
A]IL. 875 (1969), 8 ILM 679 (1969). See generally I SINCLAIR, THE VIENNA CONVENTION
ON THE LAW OF TREATIES 39 (1973); RESTATEMENT OF THE FOREIGN RELATIONS LAW OF
THE UNITED STATES (REVISED) $314 (Tent. Draft No. 1, 1980).
'For a discussion of this question, see 28 UN GAOR Sapp. (No. 18), paras. 46-48, UN
Doc. A/9018 (1973). " se Vienna Convention on the Law of Treaties, supra note I4, Art. 3I.
286 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol, 79
tention to problems of their reach that have not been discussed in depth
in the literature." Beyond the Convention itself, the study may throw
some light on the quality of human rights lawmaking in the United
Nations.
II. DEFINING DISCRIMINATION PURPOSE AND EFFECT
Anicle 1(1) defines racial discrimination as
any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose
r effect of nullifying or impairing the recognition, enjoyment or
xercise, on an equal footing. of human rights and fundamental
reedoms in the political, economic, social, cultural or any other field
of public life.
Unlike Article 2(1) of the International Covenant on Civil and Political
Rights (Political Covenant), which only addresses distinctions in the enjoyment
of the rights recognized by the Covenant, Article I(1) extends to all
human rights and fundamental freedoms, whatever their source.
This definition of racial discrimination is different from the statement
of the right to equality before the law, which appears in Article 5 of the
Convention, but the notion of equality before the law must be taken into
account in interpreting the definition. It has been suggested that equality
and nondiscrimination can be seen as affirmative and negative statements
of the same principle."" But what does "equality" mean? In the U.S. fair
employment laws, there is tension between equality in the sense of equal
treatment (obligation of means) and equality in the sense of equal achievement
(obligation of result). The goal of equal achievement, of course,
r There is an extensive literature on the Convention. Sae generally Vincent-Daviss, Human
Rights Lauw: A Research Guide to the Literature-Part I: International Law and the United Nations,
14 NY.U. J. INT'L L. & POL. 209, 278--80 (1981); W. MCKEAN, EQUALITY AND DISCRIMNATION
UNDER INTERNATIONAL LAW (1983); N. LERNER, supra note 4; Schwelb, supra note
4; Greenberg, Race, Sex, and Religious Discrimination in International Law, in 2 HUMAN RIGHTS
IN INTERNATIONAL LAW: LEGAL AND POLICY ISSUES 307 (T. Meron ed. 1984); Buergenthal,
Implementing the UN Raci a l Convention, 12 TEX. INT'L L.J. 187 (1977); Parsch, Elimination of
Racial Discrimination in the Enjoyment of Civil and Political Rights, 14 TEX. INTL L.J, 191
(1979); J. Inglis, Study on the Implementation of Article 4 of the International Convention
on the Elimination of All Forms of Racial Discrimination, UN Doc. A/CONF.119/10 (1983).
Regarding the conformity of U.S. law with the Convention, see particularly N. NATHANSON
& E. SCHWELB, THE UNITED STATES AND THE UNITED NATIONS TREATY ON RACIAL DISCRIMINATION:
A REPORT FOR THE PANEL ON INTERNATIONAL HUMAN RIGHTS LAW AND ITS
IMPLEMENTATION (The American Society of International Law 1975). Se generally H. Santa
Cruz, Racial Discrimination, UN Doc. E/CN.4/Sub.2/370/Rev.1 (1977).
"" Ramcharan, Equality and Nondiscrimination, in THE INTERNATIONAL BILL OF RIGHTS:
THE COVENANT ON CIVIL AND POLITICAL RIGHTS 246, 252 (L. Henkin ed. 1981).
The notions of nondiscrimination and equality before the law were addressed by the
Human Rights Committee in a case of discrimination on grounds of sex submitted under
the Optional Protocol to the International Covenant on Civil and Political Rights. Communication
No. R. 9/35, Shirin Aumeeruddy-Cziffra • Mauritius, 36 GAOR Supp. (No. 40) at
134, UN Doc. A/36/40 (1981)
'Fes, A Theory of Fair Employment Laur, 38 U. CHI. L. REV, 235, 237-38 (1971)
1985] THE CONVENTION ON RACIAL DISCRIMINATION 287
has a redistributive qualit." In a major policy statement, the Committee
itself has explained that "[bjoth of these obligations [the obligation
regulating the behavior of the state and public authorities, institutions and
officials, whether national or local, and the prohibition of discriminatory
conduct by any person or group against another] aim at guaranteeing the
right of everyone to equality before the law in the enjoyment of fundamental
human rights, without distinction as to race, colour, descent or national
or ethnic origin, and at ensuring that that equality is actually enjoyed in
practice."! The Committee thus appears to regard equality of result as
the principal object of the Convention. That goal is reflected in several
provisions of the Convention (e.g., Arts. 1(4) and 2(l)(c)) but is not
explicitly stated in its definition of racial discrimination. The definition
poses special problems because of the proviso limiting the prohibited
distinctions to those leading to the denial or the impairment of human
rights on an equal footing."
Purposeful discrimination and discrimination that is the effect, or
consequence, of actions undertaken for a nondiscriminatory reason are
evinced by facts of a different nature. When distinctions are made on the
explicit basis of race, a violation of the Convention can often be established
without great difficulty, since the discriminatory purpose may be apparent
on the face of the instrument, policy or program in question. Establishing
the existence of discriminatory effect, however, may require information
of appreciable specificity and breadth, especially where effect is observable
only over time." An authoritative commentator has described purpose as
the subjective test, and effect as the objective test of discrimination,
implying perhaps that the latter is more easily applied. Yet, depending
upon the quantity and the quality of the data required, discriminatory
effect may be very difficult to establish, e.g., when it is attributed to the
impact of economic policies and practices on ethnic groups that are already
economically disadvantaged, or when the discriminatory aspects of social
and cultural practices may be explained by other factors (such as religion).
Information sufficiently detailed to support findings of violations in such
cases will not always be available.
When egregiously racist practices are involved, these questions concerning
proof are primarily of academic interest. However, the distinction
o [d. at 244.
3'33 UN GAOR Supp. (No. 18) at 108, 110, UN Doc. A/33/18 (1978).
schwelb, supra note 4, at 1001.
"Section 1607.3 of the Uniform Guidelines on Employee Selection Procedures of the
U.S. Equal Employment Opportunities Commission (EEOC) states that the use of any
selection procedure that has an adverse impact on the hiring, promotion or other employment
opportunities of members of any race, sex or ethnic group will be consdered to be
discriminatory, unless certain conditions have been met. 29 CF.R. $153 (rev. July I, 1983).
"Section 1607.4 of the EEOC Uniform Guidelines, supra note 23, provides that where
the user has not maintained data on adverse impact of a selection process, the federal
enforcement agencies may draw an inference of adverse impact from that failure. Id. at
154-55.
'N. LERNER, supra note 4, at 30-31.
288 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
between purpose and effect presents a basic question: is the Convention
addressed to unintentional, as well as to intentional, acts of discrimination?
It has been suggested that the drafters of the Convention wished to
prohibit only racially motivated discrimination. The word "effect" may
thus bring actions for which discriminatory purpose could not be established
within the scope of the Convention by allowing the inference of purpose
from effect; consequences may be probative of an actor's intent.28 This
is of particular importance where subtle discriminatory purpose is not
apparent on the face of statutes, policies or programs.
That the goal of de facto equality is central to the interpretation of the
Convention is supported by references in the Preamble to enjoyment of
certain rights "without distinction of any kind" and to "discrimination
between human beings on the grounds of race,"" as well as by the
reference in Article 5 to the right to equality before the law. Moreover,
the phrase "on an equal footing" in Article 1(1), considered in conjunction
with the exception created in Article 1(4) allowing distinctions for the
purpose of affirmative action, "to ensure ... groups or individuals equal
enjoyment or exercise of human rights," and the obligation imposed by
Article 2(2) to take certain affirmative action indicate that the Convention
promotes racial equality, not merely color-neutral values, "not only de jure
... but also de facto equality... designed to allow the various ethnic,
racial and national groups the same social development.' Of particular
+% I. at 28.
Greenberg observes:
The use of the standards of "purpose" and "effect" anticipated the full-blown controversy
in the U.S. law of racial discrimination which became important after the US. Supreme
Court decision in Washington • Davis [426 U.$. 229 (1978)], that mere discriminatory
effect without the purpose of discriminating does not violate the Constitution. Some
statutes, however, have been held to forbid discriminatory effect [e.g. Board of Education
of the City of New York v. Harris, 444 U.S. 130 (1979)1. One may speculate whether
the Racial Discrimination Convention, had it been in force in the United States at the
time Washington v. Davis was decided, would have brought about a different result.
Greenberg, supra note I7, at 322.
See also Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.$. 252
(977).
For a major U.S. example of legislation based on the purpose or effect of racial
discrimination, see Title VII of the Civil Rights Act of 1964, 42 U.S.C. $2000e-2(a) (1982).
In Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971), the Supreme Court stated:
"Congress directed the thrust of the Act to the consequences of employment practices, not
simply the motivation" (emphasis by Court).
+see Bonfield, The Substance of American Fair Employment Practices Legislation I: Employers,
6I NW. U.L. REV. 907, 956-57 (1967). Regarding the relevance of effect to the determination
of purpose, see Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S.
252 (1977). The Supreme Court stated that determining whether invidious discriminatory
purpose was a motivating factor demanded a sensitive inquiry, "Sometimes a clear pattern,
unexplainable on grounds other than race, emerges from the effect of the state action even
when the governing legislation appears neutral on its face." Id, at 266. ° peeamble, para. 2. Regarding reference to a preamble to interpret a treaty, see Vienna
Convention on the Law of Treaties, supra note 14, Art. 31(1)-(2)
preamble, para. 7.
"37 UN GAOR Supp. (No. 18), para. 468, UN Doc. A/37/18 (1982).
1985] THE CONVENTION ON RACIAL DISCRIMINATION 289
importance in this context is Article 2(1)(c), which requires states to take
policy measures and to amend, rescind or nullify any laws or regulations
that have the effect of creating or perpetuating racial discrimination.
Past acts of discrimination have created systemic patterns of discrimination
in many societies. The present effects of past discrimination may
be continued or even exacerbated by facially neutral policies or practices
that, though not purposely discriminatory, perpetuate the consequences of prior, often intentional, discrimination. For example, when unnecessarily
rigorous educational qualifications are prescribed for jobs, members of
racial groups who were denied access to education in the past may be
denied employment. Because the objective of the Convention is the
attainment of equality, facially neutral policies or practices that have a
disparate impact on some racial groups should be prohibited, despite the
absence of discriminatory motive." The prohibition against practices that
have a discriminatory effect or impact imposes an obligation upon states
that may be more difficult to respect than the obligation to prohibit
purposeful discrimination. States may fulfill the latter obligation but still
violateth e Convention by failing to comply with ther equirements of the
forwm%. hile in U.S. law effect is often taken into account in establishing
purposeful discrimination, and the redistributive equal achievement goal
"is not to be pursued without restraint' the Convention appears to
prohibit discriminatory effect independently of the notion of intent. We
shall return to the notion of intent in section IV below.
Primarily with regard to measures to ensure the development and
protection of certain racial groups does the Convention, in Article 2(2),
permit the obligation to be carried out "when the circumstances so
warrant," leaving a certain measure of discretion to the state. These
measures will be further considered in section V below. Discretion is also
recognized in Article I(4), which excludes from the definition of racial
discrimination such affirmative action measures "as may be necessary."
Other provisions of the Convention, such as Article 2(1)(c), obligate the
state to "take effective measures to review governmental, national and
local policies, and to amend, rescind or nullify any laws and regulations
which have the effect of creating or perpetuating racial discrimination
wherever it exists," without leaving it a wide margin of discretion.
Thus, the Convention states far-reaching and burdensome obligations.
Could it be argued, for example, that general fiscal or social policies that
Greenberg, supra note 17, at 313, notes the view permitting affirmative action to
compensate disadvantaged groups for past discrimination.
"1 discussing Title VII of the Civil Rights Act of 1964, supra note 27, the Supreme
Court stated that the Act was
to achieve equality of employment opportunities and remove barriers that have operated
in the past to favor an identifiable group of white employees over other employees.
Under the Act, practices, procedures, or tests neutral on their face, and even neutral
in terms of intent, cannot be maintained if they operate to "freeze" the status quo of
prior discriminatory employment practices.
Griggs v. Duke Power Co., 401 U.S. at 429-30.
piss, supra note 19, at 297.
290 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
have the effect, though not the intent, of perpetuating the disadvantaged
position of certain racial groups must be changed without delay, whatever
the cost and without regard to competing priorities? The Convention does
not indicate that states can invoke a range of considerations to justify
failure to take immediate steps towards implementing the equal achievement
goal and can balance that goal with other desired community goals. By defining discrimination as various prohibited distinctions that cause
nullificationoir m pairment oft he recognition, enjoyment or exercise, on
an equal footing, of human rights, Article I creates certain problems. Would
this wording support the contention that the "separate but equal" doctrine
is consistent with the Convention? One could respond, of course, that
separate facilities are never entirely equal and that they do not permit
enjoyment of human rights on an equal footing. On another level,
intangible considerations, such as the feeling of inferiority or the stigma
that attaches to separate facilities for minority groups, are sufficient to
render separate facilities and services unequal, or even inherently unequal.
The notion of equality advocated by the Convention, the concept of
affirmative action, the preambular references to distinction and discrimination
on grounds of race, the reference to the right to equality before
the law in Article 5 and the prohibition in Article 1(4) of the maintenance
of separate rights for different racial groups after the objectives for which
they were conferred have been achieved, all militate in favor of denial of
the "separate but equal" doctrine. But the text fails to make this prohibition
fully explicit.
The goal of affirmative action could have been assured through different
wording. Article 2 of the Universal Declaration of Human Rights," which
states that everyone is entitled to all the rights and freedoms set forth in
the Declaration without distinction of any kind, such as race, largely avoids
this difficulty. In practice, the problem has not been troublesome because
members of the Committee appear to have treated distinctions on grounds
see Brown v. Board of Education, 347 U.S. 483 (1954).
GA Res. 217A, UN Doc. A/8I0, at 71 (1948) [hereinafter cited as Universal Declaration].
See also Art. 2 of the International Covenant on Economic, Social and Cultural Rights
(Economic Covenant), GA Res. 2200, 2I UN GAOR Supp. (No. 16) at 49, UN Doc
A/6316 (1966); Art. 2 of the International Covenant on Civil and Political Rights (Political
Covenant), id. at 52. Article 2 of the Economic Covenant employs the term "discrimination,"
while Article 2 of the Political Covenant employs the term "distinction." The use of the
word "discrimination" in the Economic Covenant was apparently intended to allow for
preferential treatment of underprivileged groups. Ramcharan, supra note I8, at 258-59,
7 gamcharan observes that during the drafting of the Covenants, references to equality,
equality before the law, equal protection of the law, nondiscrimination and nondistinction
were used interchangeably. Ramcharan, supra note 18, at 251.
On equality before the law as a basic human right, see Partsch, supra note 17, at I96;
Lillich, Civil Rights, in I Meron (ed.), supra note 17, at 115, 132-33. For a comparison of
the concept of equality in the U.S. Constitution and international human rights instruments,
see Henkin, Interational Human Rights and Rights in the United States, in id. at 25, 41-43.
Regarding the definition of racial discrimination in other human rights instruments, see N.
LERNER, supra note 4, at 31-32.
1985] THE CONVENTION ON RACIAL DISCRIMINATION 291
of race as suspect" (except when justified in the context of affirmative
action), without engaging in a serious inquiry into whether a particular
distinction has the purpose or the effect of denying or impairing the
enjoyment of human rights on an equal footing. Perhaps the Committee
has been suggesting that distinctions on grounds of race constitute racial
discrimination per se. Thus, the "common law" of the Convention is
based on the notion of equality, rather than on its definition of racial
discrimination. This "common law" has been developed by the Committee
without any in-depth discussion of problems of interpretation or of the
discrepancy between the definitional article of the Convention (Art. I)
and some of the operative provisions. This discrepancy was caused, at
least in part, by the fact that the definitional article was drafted first,"
and was not adjusted to the operative provisions after they were prepared.
Distinctions made on the basis of race may be dangerous and subject to
abuse for purposes of discrimination. "Classifying persons according to
their race is more likely to reflect racial prejudice than legitimate public
concerns; the race, not the person, dictates the category." ft would have
been preferable, therefore, if the Convention had prohibited distinctions
made on the basis of race, except in the context of affirmative action,
without requiring a showing of their adverse effect on the enjoyment of
human rights. The U.S. Supreme Court subjects the classification of
persons according to their race to the most exacting scrutiny.' While the
Court has not ruled that all racial classification is inherently hiats impermissible, moved in that direction (outside the context of affirmative action).
III. PUBLIC AND PRIVATE REACH?
Whether the provisions of the Convention apply not only to public, but
also to private, or partly private, action presents particular difficulties of
interpretation. Article I(l) defines racial discrimination as certain distinctions
"in the political, economic, social, cultural or any other field of public
life" (emphasis added). This suggests that only public action is targeted by
the Convention, including the activities of organizations that, though
legally autonomous, perform functions of a public nature." But without
explicitly addressing the possible conflict with Article 1(1), Article 2(1)(d)
obligates state parties to "prohibit and bring to an end, by all appropriate
means, including legislation as required by circumstances, racial discrimination
by any persons, group or organization." The latter provision has
" Se, tg, 38 UN GAOR Supp. (No. 18), paras. 168, 193, 280, UN Doc. A/38/18
(1983).
schwelb, supra note 4, at 1005.
" Palmore v. Sidoti, 104 S.CL. 1879, 1882 (1984).
•"1 Th e Court decided, on the basis of the Equal Protection Clause of the Fourteenth
Amendment, that "[t]he effects of racial prejudice, however real, cannot justify a racial
classification removing an infant child from the custody of its natural mother found to be an
appropriate person to have such custody." Id. (footnote omitted).
"N, LERNER, supra note 4, at 37 (in the context of Art. 2).
292 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
been described as "the most important and most far-reaching of all
substantive provisions of the Convention." Interpreted in the context of
Article 1(1), Article 2(1)(d) appears to mean that racially discriminatory
action that occurs in public life is prohibited even if it is taken by any
person, group or organization. But how does one determine what "public
life" is? To which areas does the prohibition of discrimination apply?
When does the duty to accord equal treatment prevail?
TCheo mmittee itself stated that the national policies of state parties
·~«et have as their aim the elimination of racial discrimination in all its
forms--whether practised by public authorities, institutions or officials or
by private individuals, groups or organizations"" and that they "must
entail the prohibition and the termination, by all appropriate means, of
acts of racial discrimination perpetrated by any person or group against
another." In this context, the Committee emphasized the obligation of
all state parties, in accordance with Article 6 of the Convention, to assure
to everyone within their jurisdiction effective protection from and remedies
for any acts of racial discrimination, including remedies for discriminatory
acts by any person or group. But the Committee did not establish any
parameters for the activities encompassed by the prohibition on discriminatory
treatment. If the Convention goes beyond governmental action to
embrace discriminatory action by nongovernmental, private parties, what
is the substantive area of public life that is covered or, conversely, of
private life that is beyond the Convention's reach?" The problem of
determining the reach of provisions prohibiting discrimination when
nongovernmental actors are involved arises also with regard to other
human rights instruments, including Article 26 of the Political Covenant,"
" Schwelb, supra note 4, at 1017.
"ft may be noted that the Carter administration proposed an understanding to Article
2() and to a number of other provisions stating that its obligations to enact legislation
extended only to "governmental or government-assisted activities and to private activities
required to be available on a nondiscriminatory basis as defined by the Constitution and laws
of the United States." 1978 U.S. DIGEST, supra note 12, at 443; 72 AJIL at 622.
" 33 UN GAOR Supp. (No. 18) at 109, UN Doc. A/33/18 (1978).
+ 1. at 110.
One member of the Committee, noting that the Race Relations Act of Great Britain
"did not apply to personal and intimate relationships, said that it introduced a dangerous
degree of flexibility which almost amounted to authorizing discrimination." 38 UN GAOR
Supp. (No. 18), para. 164, UN Doc. A/38/18 (1983). The British representative replied
that such exceptions were necessary "in the interest of striking a balance between individual
freedoms and government restrictions." Id., para. 172.
Australia's acceptance of Article 26 "on the basis that the object of the provision is to
confirm the right of each person to equal treatment in the application of the law"
(MULTILATERAL. TREATIES, supra note S, at I19) brought about an interesting exchange
between the representative of Australia and some members of the Human Rights Committee
established under Article 28 of the Political Covenant. Some members of the Committee
argued that Australia's interpretation of Article 26 was not correct, that the article provided
not only for equality of all before the law, but also for equal protection of all by the law
against any discrimination. One member of the Committee disagreed and maintained that
the article was concerned not with all types of discrimination, but only with the civil and
1985] THE CONVENTION ON RACIAL DISCRIMINATION 293
but it is particularly difficult with regard to the Convention because of the
contradictions inherent in its language.
Since Article 1(1) and Article 2(1)(d) offer no guidance on this difficult
question, one must turn to other provisions of the Convention. Among
the rights found in the catalog of rights in Article 5, one is of particular
relevance: the guarantee under Article 5(f) of equality before the law in
"[t]he right of access to any plac e or service intended for use by the
general public, such as transport, hotels, restaurants, caf~s, theatres and
parks." While this specification is certainly important and helpful, it is an
exaggeration to claim, as Schwelb did, that "Article 5 as a whole tells
quite concretely what is meant by 'public life' and probably answers most
of the difficult questions of interpretation which might arise." For
example, to what extent is housing (Art. 5(e)(iii)) provided by private
developers' covered by the Convention? The sanguine comment by
Schwelb made in the context of possible U.S. ratification of the Convention
is particularly striking when compared with his earlier acknowledgment
that Article 5 "lists several rights which certainly do not come within the
sphere of public life, e.g., the right to marriage and choice of spouse."
The wide sweep of the Convention is emphasized by the fact that members
of the Committee have inquired whether discrimination can be found "in
the rental of a private apartment" or admission to "private clubs.4
It is correct, however, to suggest that "public life" is not synonymous
with governmental action but is the opposite of "private life," which
would thus not be reached by the Convention. But to apply this concept
to concrete situations is difficult. The legislative history reveals concern
that freedom of thought and expression may be jeopardized and the
private life of individuals invaded."
Perhaps a rationale for at least some distinction between public and
private life can be developed by reference to the right of association.
political rights that states must guarantee. The representative of Australia maintained that
the latter interpretation was "more in keeping with the original intention of the framers."
28 UN GAOR Supp. (No. 40), paras. 155, 175, UN Doc. A/38/40 (1973).
Schwelb, The Iterational Obligations of Parties to the Convention, in N. NATHANSON & E.
SCHWELB, spra note I7, at I, 7.
' Nathanson, The Convention Obligations Compared with the Constitutional and Statutory Law
of the United States, in id. at 19, 34 (suggesting that an owner renting an apartment within his
own private dwelling may be more reasonably entitled to exercise personal preference in
choice of tenants than the owner of a large apartment house or a substantial real estate
developer).
Schwelb, supra note 4, at 1005.
9'39 UN GAOR Supp. (No. 18), para. 238, UN Doc. A/39/18 (1984).
IR., para. 256.
Schwelb, supra note 50, at 6. See also Ramcharan, supra note 18, at 262 (on prohibited
discrimination by individuals, other than in personal and social relationships, under Article
26 of the Political Covenant).
N. LERNER, supra note 4, at 38.
' On this right, see generally Humphrey, Political and Related Rights, in 1 Meron (ed.),
supra note I7, at 171, 190-9I; Partsch, Freedom of Conscience and Expression, and Political
294 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
That right is recognized in Article 5(d(ix). It is widely acknowledged,
however, that the catalog of human rights in Article 5 does not create
those rights but merely obligates a state party to prevent racial discrimination
in the exercise of those that it has recognized." Article 5 could
have been drafted in a manner that clearly defined this limitation. But a
more explicit formulation would have emphasized the liberty of states to
deny some of the rights listed, which would possibly have weakened the
authority of the Universal Declaration of Human Rights, on which the
catalog is based, and undermined the status of some rights as customary
law. Although freedom of association is recognized in the Convention
only in the limited context indicated above, that right is widely stated in
other human rights instruments, including Article 22 of the Political
Covenant, which establishes (Art. 22(2)) strict limits on any restrictions
that may be imposed on its exercise. In accordance with the rule stated in
Artcle 31(3)(c) of the Vienna Convention on the Law of Treaties, the
right of association-as a recognized principle of international human
rights law-may therefore be taken into account in the interpretation of
the Convention so as to protect strictly personal relations from its reach.
The approach taken by the U.S. Supreme Court in the recent case of
Roberts v. United States Jaycees" is instructive in developing a rationale for
the distinction between public and private life. This case involved genderbased
discrimination, the constitutional freedom of association asserted by
members of a private organization, and their First and Fourteenth Amendment
rights. It suggests that in distinguishing "public" and "private"
domains to determine the reach of the Convention, account should be
taken of the relative smallness of a relationship or an association, the
degree of selectivity exercised and the degree of seclusion from others."
Large business enterprises and their activities, e.g., hiring practices, are
not entitled to the same protection from intrusion as more intimate
associations. One must therefore carefully assess the objective characteristics
of a particular relationship on a spectrum from the most intimate of
personal attachments to the most attenuated, or from the least measure
of public involvement to the most. While freedom to associate presupposes
a freedom not to associate, the right to associate for expressive purposes
is not absolute. With regard to large and unselective groups, there is a
compelling public interest in eliminating discrimination and assuring access
for all to publicly available goods and services, which includes not only
tangible ones, but also privileges and advantages.
Freedoms, in Henkin (ed.), supra note I8, at 209, 235--37; Frowein, Reform durch Meinungsfreiheit,
105 ARCHIV DES OFFENTLICHEN RECHTS 169 (1980). Of particular importance is the case of
Young, James and Webster, Eur. Ct. of Human Rights, 44 Judgments and Decisions (ser. A,
1981), reprinted in 4 Eur. Hum. Rts. Rep. 38 (pt. 13, 1982), summarized in 1981 Y.B. EUR.
CONV. ON HUMAN RIGHTS 440 (Eur. Ct. Human Rts.).
28 UN GAOR Supp. (No. 18), para. 42, UN Doc. A/9018 (1973). See also id., paras.
53-56; 31 UN GAOR Supp. (No. 18), para. 56, UN Doc. A/31/18 (1976); 33 UN GAOR
Supp. (No. 18), para. 21, UN Doc. A/33/18 (1978); Buergenthal, supra note I7, at 208--
11.
104 S.CL 3244 (1984). « I4. at 3250--51.
1985] THE CONVENTION ON RACIAL DISCRIMINATION 295
This or a similar approach should also be followed by state parties and
the Committee. While certain private and interpersonal, associational
relations would be insulated from the reach of the Convention, the
activities of large private entities and of basically unselective organizations
would be regarded as publicly available goods and services. Racial discrimination
in the provision of these goods and services must be prohibited.
In the absence of Convention guidelines for distinguishing the public from
the private realm, this question will have to be answered through the case
law of the Committee. One hopes that it will be done on the basis of
criteria analogous to those applied by the Supreme Court in the Roberts
case.
The dichotomy between the public and private realms also arises in the
context of Article 2(1(b), which forbids state parties to "sponsor, defend
or support racial discrimination by any persons or organizations." Arguably,
"support" encompasses not only the extension of benefits as a positive
action, but also the failure to impose obligations that are required of other
persons or organizations. Granting tax-exempt benefits to a private organization
that discriminates on the basis of race, for example, might be
construed as a violation of Article 2(1)(b). One commentator has concluded
that any conflicts between the U.S. Constitution and this provision would
not be serious' because of the reach of the state action doctrine; this
position perhaps overly minimizes the points of conflict between the two.
For example, if a routine grant of a liquor license to a private club
involved in racial discrimination is not state action in violation of the
Fourteenth Amendment, is it clear that this is also true under the
Convention? Where the reach of the obligations arising under the Convention
corresponds to the reach of the Fourteenth Amendment, as
determined by the decisions of the Supreme Court involving the state
action doctrine, significant conflicts between the Convention and the
Constitution need not arise. But where governmental inaction, acquiescence
or tolerance (e.g., as through regulation, licensing or enforcement) is
deemed not to constitute state action and therefore lies beyond the reach
of government's authority to fight "private" discrimination, conflicts
would occur, were it not for the proposed U.S. reservations, declarations
and understandings." Moreover, the parameters of the state action doctrine,
under which the acts of private organizations or individuals are subject to
constitutional limitations if a sufficiently close relationship between those
actions and governmental functions exists, are controversial and uncertain.°
Since the degree to which governmental tolerance of private action will
be considered state action is unclear, the possibility of conflict with the
Convention remains."
' Nathanson, supra note 5I, at 20--22.
t at 2I (discussion of Moose Lodge v. Irvis, 407 U.$, 163 (1972)). On state action, see
also 3 T. FRANCK, HUMAN RIGHTS IN THIRD WORLD PERSPECTIVE 463--66 (1982).
SL. TRIBE, AMERICAN CONSTITUTIONAL LAW 1148 (1978).
1978 U.S. DIGEST, supra note 12, at 443--44; 72 A[IL at 621-22.
see geerally L. TRIBE, supra note 63, at 1147-74.
Nathanson, supra note 5I, at 2I. But see id. at 22.
296 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
IV. SUPPRESSION OF RACIST THEORIZING AND RACIST ORGANIZATIONS
Article 4 imposes the following obligations on state parties: to penalize
the dissemination of ideas based on racial superiority or hatred, incitement
to racial discrimination, all acts of violence or incitement to such acts
against any race or group of persons of another color or ethnic origin,
and the provision of any assistance to racist activities, including the
financing of such activities (para. (a)); to declare illegal and prohibit
organizations and all other propaganda activities that promote and incite
racial discrimination, and participation in such organizations or activities
(para. (b)); and to prohibit public authorities or institutions from promoting
or inciting racial discrimination (para. (c)).
In paragraph (a) "assistance" is not defined. It might be extended to
include providing financial support by purchasing the publications of racist
groups," or renting or leasing facilities such as public auditoriums to racist
organizations.
Both racist groups as organizations and individuals who participate in
such groups in violation of the prohibitions stated in Article 4 are subject
to criminal sanctions. The opening paragraph of Article 4 identifies the
eradication of all incitement to or acts of racial discrimination as the
objective underlying the obligations enumerated. Paragraph (a) addresses
the offense, rather than any particular offenders. Paragraph (b) covers not
only organized, but also all other propaganda activities. It therefore
appears that individuals who act alone in violation of the stated prohibitions
are also subject to criminal sanctions.
The offenses set forth in Article 4 go beyond the definition of racial
discrimination given in Article l(I). The latter encompasses only such
prohibited distinctions as lead to the denial of human rights on an equal
footing. The former prohibits certain organizations and activities, including
the dissemination of opinion and thought (ideas based on racial hatred or
superiority), regardless of whether or not they lead to a denial of human
rights. The obligations of Article 4 are also more extensive than those
arising under Article 20(2) of the Political Covenant, which penalizes only
such racial hatred as constitutes incitement to discrimination, hostility or
violence. Given the tragic results of racist propaganda, e.g., in the Third
Reich, the pain and suffering inflicted upon target groups, the tangible
damage suffered, the vital community interest in the eradication of racial
discrimination and its sources, and the conflict with the UN Charter goal
of racial equality, the objectives of Article 4 are commendable. Racist
propaganda must never be taken with equanimity. Its destructive potential
even in developed societies is a matter of history. However, it is not the
objectives and goals of Article 4 that create difficulties, but the relationship
of the norms stated in it to other important values. While the article as a
whole poses many problems, paragraph (a) gives rise to difficulties primarily
in relation to freedom of expression and paragraph (b) challenges both
freedom of expression and freedom of association.
"N, LERNER, supra note 4, at 49-50.
1985] THE CONVENTION ON RACIAL DISCRIMINATION 297
Article 4 explicitly mandates legislative action to implement its provisions.
The Committee has insisted that reporting states have a duty to legislate
irrespective of whether the prohibited activities actually occur in them,
except where legislation that fully satisfies the provisions of Articli4es
already in place." When reporting states maintain that preexisting law
sufficiently implements Article 4, the Committee engages in substantive
analysis to determine the adequacy of those provisions." In a study
approved by the Committee, Ingl~s has argued that Article 4 "is not selfexecuting.
Despite the incorporation or transformation of the Convention
as part of domestic law, article 4 may only be implemented if legislation
is enacted to do what the article ordains.7o
That states must take legislative action in compliance with Artic4le
irrespective of the actual existence of the prohibited activities or organizations
is consistent with the prophylactic purposes of the Convention as
indicated by the definition of racial discrimination, the wide scope of the
obligations of the parties and the various educational measures mentioned iAn rticle 7. The Committee has emphasized, correctly, that "[fjar from
being concerned solely with combating acts of racial discrimination after
they have been perpetrated, the national policies of the State parties must
also provide for preventive programmes, which seek to remove the sources
from which those acts might spring--be they subjective prejudices or
objective socio-economic conditions." A preventive penal policy is expressed
through Article 4, which requires all state parties to make specified
offenses punishable by law within their national legal systems, regardless
of whetherr acial discrimination is actuallyp racticed in their territories."
While mandating criminal sanctions, Article 4 attempts to effect fundamental
societal changes that should prevent the future occurrence of eclal
discrimination and violence. By creating prior restraints on freedom of
expression and association, Article 4 seeks to eradicate racist thought and
racist organizations, which generate racist acts. Thus, Ingl~s observes that
"[alrticle 4 aims at prevention rather than cure; the penalty of the law is
supposed to deter racism or racial discrimination as well as activities aimed
at their pr o motion or incitement."3
Organizations that promote racial discrimination, and not merely their
specific activities which have that purpose or effect, are prohibited. During
the drafting debates, an amendment inserting the words "or the activities
of such organizations" after the word "organizations" in paragraph (b)
was not adopted," perhaps because the very existence of such organizations
was felt to be destructive of the aims of the Convention. Would the
General Recommendation I, Dec. 3(V), 27 UN GAOR Supp. (No. 18) at 37, UN Doc.
A/8718 (1972); 34 UN GAOR Supp. (No. 18), para. 226, UN Doc. A/34/18 (1979); 31
UN GAOR Supp. (No. 18), para. 245, UN Doc. A/31/18 (1976); Buergenthal, supra note
17, at 193-94; Partsch, supra note 57, at 229.
" see, «g. 33 UN GAOR Supp. (No. 18), para. 320, UN Doc. A/33/18 (1978).
" 1ngl~s, supra note I7, para. 216.
33 UN GAOR Supp. (No. 18) at 109, UN Doc. A/33/18 (1978).
Id. at 110. T'Ingles, supra note I7, para. 221.
''N, LERNER, supra note 4, at 45.
298 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
language of that paragraph, as adopted, permit the prohibition of such
groups as soon as it is clear that they intend to engage in promoting or
inciting racial discrimination?" Members of the Committee have emphasized
the need to outlaw certain organizations that in fact engage in incitement
to racial discrimination, even though they do not proclaim such incitement
to be their objective."" They have inquired whether action has been taken
with the intention of dissolving associations pursuing goals that are illegal
under Article 4" f the aims of an organization are clear even before its
formation, does the language of the provision permit its prohibition
beforehand, rather than only its dissolution afterward? How are such aims
determined? What is the level of activity necessary to constitute a violation?
Ingl~s appears to answer the first of these questions in the affirmative by
referring to legislation of states providing for the denial of permits to or
registration of organizations with an illegal purpose, or their dissolution
in the event that they have already been registered or granted permits,""
Article 4 is potentially even broader than may at first be apparent from
the text, because the initial paragraph employs the words "inter alia." But
even those measures which arc enumerated pose problems. The drafting
and application of laws giving effect to Article 4 will be difficult, since the
provision requires criminalization not only of acts and incitement to acts
of racial discrimination and violence, but oft he promulgationof ra cist
theories and thought. With a few exceptions, traditional concepts of
criminal liability require the commission of an act, or the failure to act
when the law imposes a duty to do so, or incitement to action. But Article
4 also requires states to impose criminal liability for the dissemination of
ideas (freedom of expression) alone.
When compared with U.S. law, this criminalization of speech and
association (organizations) on the basis of racist content violates the
content-neutral protection afforded by the First Amendment doctrine of
freedom of expression." But the different approach in the United States
should not be explained on constitutional grounds alone. It also reflects,
at least in recent history, the feeling of confidence and security in a
developed and relatively stable society that, while failing to eradicate
racism, has found orderly means of dealing with its racial problems, as
7% Id. at 50.
7 392 UN GAOR Supp. (No. 18), para. 286, UN Doc. A/32/18 (1977).
"39 UN GAOR Supp. (No. 18), para. 270, UN Doc. A/39/18 (1984). The Committee
emphasized that it was not enough for the penal code to be applicable to individual members
of an organization. The legislation should contain provisions prohibiting such organizations
as required by Article 4(b). Id., para. 509.
fngl~s, supra note I7, paras. 238--240.
» (eenberg points out that in the United States even groups that preach hatred, such as
the Ku Klux Klan or the Nazis, benefit from the right of free expression, and their activities
based on racial, ethnic or religious hatred are nearly uniformly permitted to continue.
Greenberg, supra note I7, at 323--24. See Collin v. Smith, 578 F.2d 1197, cert. denied, 436
U.S. 953 (1978). But see "Smith Ac," 18 U.S.C. 82385 (1982). For the interpretation of the
Act by the Supreme Court, see Scales v. United States, 367 U.S. 203 (1961); Yates v. United
States, 354 U.S. 298 (1957); Dennis v. United States, 341 U.S. 494 (1951).
1985] THE CONVENTION ON RACIAL DISCRIMINATION 299
well as the traditional preference for individual freedoms over the regulatory
power of the state. In some other countries, however, activities and
organizations that in the United States would often be regarded as creating
only a marginal possibility of violence and threat to public order might be
regarded as a clear and present danger." If certain provisions of the
Convention are overbroad when viewed against the U.S. legal and social
systems, it does not necessarily follow that they are overbroad for some
of the other countries. It is difficult, indeed, to find a common legislative
policy for the member states of the United Nations in view of their diverse
stages of development, and their different cultures, traditions, conditions
of social peace and security. The purpose of these comments, of course,
is not to make a value judgment about which legal and social systems are
superior, but simply to state some of the relevant factors.
Dissemination of racist thought and participation in organizations that
engage in promotion of racial discrimination are prohibited under Article
4 regardless of whether they lead to otherwise illegal co n duct. Is there,
then, a conflict between Article 4 and the principles of freedom of
expression and association as they are recognized in international law?
The opening paragraph of Article 4 reflects an effort to avoid such a
conflict. The measures to be taken by state parties are to be adopted
"with due regard to the principles embodied in the Universal Declaration
of Human Rights and the rights expressly set forth in article 5 of this
Convention." The freedoms of expression and association are indeed
embodied in Article 5(d(viii)-(ix), the Universal Declaration of Human
Rights and the Political Covenant, but in these and other international
human rights instruments these principles are not absolute; they are
subject to various limitations, the scope of which is not clearly determined."
Under Article 29(2) of the Universal Declaration, restrictions on the
freedom of expression and association might be justified on the ground
that the promulgation of racist ideas by individuals or groups would lead
to the infringement of the rights of members of the targeted racial groups
and adversely affect the public order and general welfare of society. This
article has been invoked in support of limiting the dissemination of racist
p Hemalatha v. Govt. of A. P., 63 A.LR. 375 (A.P. 1976), paras. 19-24, reprinted in
T. FRANCK, supra note 62, at 241; The [Nigeria] Director of Public Prosecutions v. Chike
Obi, F.S.C. 56/1961, reprinted in id. at 229.
Even in the United States, however, racist invective has been considered punishable as
criminal libel, although it was not shown that it involved a clear and present danger to the
target group. Beauharnais v. Illinois, 343 U.S. 250 (1952). The present status of Beauharmais
is a matter of some doubt. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme
Court emphasized the principle that the constitutional guarantees of free speech and free
press do not permit a state to proscribe advocacy of the use of force or of law violation
except where such advocacy is directed at inciting or producing imminent lawless action and
is likely to incite or produce it. The indictment of a Ku Klux Klan leader was overruled as
contrary to the First and Fourteenth Amendments.
Regarding the "Front National" in France and claims for defamation submitted by its
leader, Jean-Marie Le Pen, see Le Monde, Nov. 2, 1984, at 8, col. 3 (final ed.).
Universal Declaration, supra note 36, Arts. 19, 20, 29, 30; Political Covenant, supra
note 36, Arts. 4, 19-22.
300 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol, 79
ideas and the existence of racist organizations." Of course, the promulgation
of racist ideas may affect the rights of others. But, depending on
the situation in a particular society, the argument that the promulgation
of such ideas inherently endangers public order is usually persuasive only
when doing so constitutes incitement to acts of discrimination or violence,
which is already prohibited in any case.
The "due regard" clause permits the invocation of another provision
of the Universal Declaration, Article 30, which states that "[nothing in
this Declaration may be interpreted as implying for any State, group or
person any right to engage in any activity or to perform any act aimed at
the destruction of any of the rights and freedoms set forth herein." This
has been viewed as an injunction "against interpreting the Declaration as
implying for any State the rght to destroy any of the rights and freedoms
proclaimed therein." However, elsewhere, in discussing Article 4 of the
Convention, the same commentator expressed the view that Article 30 of
the Universal Declaration "does not preclude or prohibit reasonable
limitations as are expressly set forth in Article 29(2) which do not have
the purpose or effect of destroying those rights and freedoms."" Because
it will be argued that the measures taken in implementation of Article 4
do not have the purpose or effect of destroying the rights or freedoms
stated in the Declaration, Article 30 does not provide an effective protecton
against abuse. Despite its vagueness, Article 30 could have perhaps been
relied upon by the Committee more seriously to balance the prohibition
of racial discrimination with the freedoms of association and expression
stated in the Universal Declaration. It can, of course, be invoked by states
in the course of their interpretation and application of the Convention.
The Committee has paid lip service to the notion that the freedoms of
expression and association "are not irreconcilable" with the obligations
created by Article 4," and to the "due regard" clause of that article,
while expressing clear preference for the application of the norms stated
in Article 4:
The Committee is fully aware that the Convention-in laying
down the obligations of States partes with regard to the prohibition
of the dissemination of racist ideas, incitement to racial discrimination
or violence, and racist organizations-allows for the fulfilment of
those obligations to be accomplished "with due regard" to the
fundamental human rights to freedom of opinion, expression and
association. However, it could not have been the intention of the
drafters of the Convention to enable States parties to construe the
phrase safeguarding the human rights in question as cancelling
For statements referring explicitly or implicitly to the limitation clauses of the Universal
Declaration in construing Article 4, see, e.g., 33 UN GAOR Supp. (No. 18), para. 279, UN
Doc. A/33/18 (1978) 34 UN GAOR Supp. (No. 18), para. 227, UN Doc. A/34/18 (1979).
"f. Ingl~s, Study of Discrimination in respect of the Right of Everyone to Leave Any
Country, Including His Own, and to Return to His Country 37, UN Doc. E/CN.4/Sub.2/
220/Rev.1 (1963). See generally E. Daes, The Individual's Duties to the Community and the
Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration
of Human Right 129-31, UN Doc. E/CN.4/Sub.2/432/Rev.2 (1983).
' jngl~s, supra note 17, para. 228.
3 UN GAOR Supp. (No. 18) at 113, UN Doc. A/33/18 (1978).
1985] THE CONVENTION ON RACIAL DISCRIMINATION 301
the obligations relating to the prohibition of the racist activities
concerned. Otherwise, there would have been no purpose whatsoever
for the inclusion in the Convention of the articles laying down those
obligations."°
That a conflict arises has been acknowledged by some members of the
Committee, for whom Article 4 supersedes freedom of expression and
association. Indeed, since Article 4 is premised on the belief that racist
practices can be combated successfully only if the promulgation of racist
ideas is curtailed, and, perhaps, on the view that such ideas are inherently
dangerous, such a conclusionfol lows logically. As a matter of fact, in
construing Article 20 of the Political Covenant, the Human Rights
Committee has taken a position rather similar to that taken by the
Committee on the Elimination of Racial Discrimination. It stated that the
"required prohibitions are fully compatible with the right of freedom of
expression as contained in article 19, the exercise of which carries with it
special duties and responsibilities." It thus emphasized the duty of states
to fulfill their obligations under Article 20.
The wide sweep of Article 4 has caused occasional resentment even
within the Committee." Western states have expressed some opposition
to the restraints on freedom of expression and association created by the
article" and the Committee itself has admitted that only a few states have
taken the necessary measures to implement it."
The obligations specified apply clearly to statements or acts of public
officials within the territories of the state parties. They must be deemed
applicable also to the statements or acts of such officials in the United
Nations and other international organizations. Thus, racist remarks may
violate the obligations of the states concerned under the Convention and
14 at 112. see,eg,id, para. 51.
General Comment II, 38 UN GAOR Supp. (No. 40) at 110, UN Doc. A/38/40 (1983).
Thus, one member of the Committee objected to the text of a questionnaire because
the question concerning racist theorizing "appeared to assume that Member States were
required to penalize all dissemination of ideas based on racial superiority and not merely
propaganda activities aimed at encouraging racial discrimination." 30 UN GAOR Supp. (No.
18), para. 47, UN Doc. A/10018 (1975).
"Great Britain has interpreted the obligations of Article 4 to be limited by the extent to
which they may be fulfilled with due regard to the principles embodied in the Universal
Declaration, in particular the right to freedom of opinion and expression and the right to
freedom of peaceful assembly and association. MULTILATERAL TREATIES, supra note 9, at
104. Other governments, eg. Belgium, id. at 98, have emphasized the need both to adopt
the necessary legislation and to respect the freedoms of expression and association. In
transmitting the Convention to the Senate, the United States has made a general declaration
limiting the scope of the obligations assumed under the Convention to those which would
not restrict the right of free speech as guaranteed by the U.S. Constitution and laws of the
United States, and by Article 5 of the Convention. 1978 U.S. DIGEST, supra note 12, at 443.
The Government of the Federal Republic of Germany, "after careful consideration, reached
the conclusion that dissemination of opinions of racial superiority should be punishable if it
was intended to create racial discrimination or hatred." 32 UN GAOR Supp. (No. 18), para.
87, UN Doc. A/32/18 (1977). See also Ingl~s, supra note 17, para. 225.
·+ 39 UN GAOR Supp. (No. 18), para. 303, UN Doc. A/39/18 (1984).
On some other aspects of the extraterritorial reach of the Convention, see Buergenthal,
supra note 17, at 211-18. See generally Meron, Applicability of Multilateral Conventions to
Ocupied Territories, 72 AJIL 542 (1978).
302 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
should be scrutinized by the Committee. In an international forum, the
balancing of the various factors involved, such as the freedom of speech
of governments against the Charter principles of racial equality of all
persons and friendly relations among nations, may lead to results different
from those which obtain internally in some states, where the freedom of
speech of individuals, balanced against an all-powerful state and other
community interests, is often an endangered value and deserves special
protection. The prohibition of certain types of racist propaganda in the
Convention and the Political Covenant should be observed first and
foremost within the parent organization. Unfortunately, this is not always
the case."°
Some of the obligations under the Convention apply, of course, to
private individuals. But the Committee has never determined how far into
private life the obligations of the Convention extend. Do they, for instance,
cover racist remarks made between members of the same family, or in a
private letter not aimed at circulation or publication? According to some
members of the Committee, insulting or defamatory racist remarks made
to individuals should be included in the conduct to be penalized." Some
comments made by the members suggest that they have an extremely
broad conception of the Convention's provisions. Thus, one state party
was criticized for legislation requiring that certain offenses must be
committed publicly in order to be punishable (e.g., "discriminatory measures
which could be taken through correspondence" would not be covered by
the legislation;" members or supporters of an association that advocated
racial discrimination could be punished only when their activities "took
place publicly"°). Another state reported to the Committee that in
implementing Article 4, it had outlawed any form of racial discrimination,
"including verbal," without specifying, however, whether this encomAn
egregious example of racist remarks can be found in the statement made in the UN
General Assembly by the representative of the Libyan Arab Jamahiriya:
It is high time for the United Nations and the United States in particular to realize that
the Jewish Zionists here in the United States attempt to destroy Americans. Look
around New York. Who are the owners of pornographic film operations and houses? Is
it not the Jews who are exploiting the American people and trying to debase them?
UN Doc. A/38/PV.88, at 19-20 (1983).
'34 UN GAOR Supp. (No. 18), para. 157, UN Doc. A/34/18 (1979). Nevertheless,
some members of the Committee noted with regard to a penal provision of Norway, which
covered only public utterances and communications, that "private utterances and communications
lay outside the field in which the penal law could effectively be applied without an
oppressive system of surveillance." 32 UN GAOR Supp. (No. 18), para. 157, UN Doc.
A/32/18 (1977)
39 UN GAOR Supp. (No. 18), para. 238, UN Doc. A/39/18 (1984) (in the case of
e'gum Id. The representative of Belgium responded that the Belgian Act "would not apply in
the case of a landlord who refused to rent a private apartment to a foreigner, because it
would be very difficult to present legal evidence of the grounds for the refusal, unless there
were witnesses." The requirement that the activities of racist associations be known to the
public in order to be punishable resulted from the difficulty of proving any practice that was
not a matter of public knowledge. Id., para. 244.
7 14., para. 276 (n the case of Denmark).
1985] THE CONVENTION ON RACIAL DISCRIMINATION 303
passed the private communication of ideas. If private as well as public
communication of racist ideas is prohibited, it might invite state invasion
of the right to privacy. In light of the harm caused by such behavior,
would private civil actions be a more appropriate remedy, by reducing the
scope of possible encroachment by the state into interpersonal relations?
Nevertheless, civil actions would probably not effectively limit such conduct
without the deterrent effect of criminal sanctions.
Concepts of criminal liability in U.S. law usually link culpability with
intent as closely as possible. But Article 4 appears not to be based on the
uirement of intent. Members of the Committee have interpreted the
rticle accordingly and appeared to endorse the notion that it is based on
bsolute liability." Ingles thus emphasizes "that the mere act of dissemination
is penalized, despite lack of intention to commit an offence and
irrespective of the consequences of the dissemination, whether it be grave
or insignificant." He criticized state parties whose legislation addresses
only such dissemination or incitement as is intentional, or has the objective
of stirring up hatred, or is threatening, abusive or insulting: "Obviously,
these conditions are restrictive and ignore the fact that Art. 4(a) declares
punishable the mere act of dissemination or incitement, without any
conditions,1
The point at which the culpability of a particular organization is
sufficiently clear to warrant intervention by the state may be defined by
states in a manner that restricts freedom of expression and privacy more
than is necessary to achieve the objectives of Article 4," But if the
drafters had specified intent as an element of the offenses listed, the
difficulties attendant upon proving intent would have hampered the
effectiveness of the article.
Given the prophylactic purposes of Article 4, limitations on the exercise
of free speech and on the right of association are unavoidable, while the
reconciliation of the conflicting principles is artificial. If the drafters feared
that the effectiveness of the provision would be hampered by introducing
the requirement of intent, they should at least have defined the offenses
more specifically, and, perhaps, more narrowly. The Convention should
3g UN GAOR Supp. (No. 18), para. 84, UN Doc. A/32/18 (1977. In reviewing the
adequacy under Article 4 of Great Britain's Race Relations Act, members of the Committee
approved a change in that legislation dispensing with the necessity "to prove a subjective
intention to stir up racial hatred." Moreover, they implicitly endorsed absolute liability under
Ace 4 in disapproving the provision of the Race Relations Actt hat in the publication or
distribution of written matter "it shall be a defence for the accused to prove that he was not
awate of the content of the written material in question and neither suspected nor had
reason to suspect it of being threatening, abusive or insulting." 33 UN GAOR Supp. (No.
I8), para. 339, UN Doc. A/33/18 (1978). One member of the Committee expressed the
opinion "that the question of [the offender's] good faith and intent did not enter into
consideration in the implementation of article 4." 35 UN GAOR Supp. (No. 18), para. 338,
UN DOC. A/35/18 (1980).
fngl~s, supra note 17, para. 83. 1 14., para. 235.
or See generally N. LERNER, supra note 4, at 5l.
o some states (e.g., the Federal Republic of Germany, supra note 90) insist, nevertheless,
upon the requirement of intent.
304 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. '79
have made punishable primarily individual conduct, or the conduct of
individuals acting as a group, rather than the existence of organizations
(unless involved in acts of violence, incitement to violence or other illegal
ts) and the promulgation of ideas, which would have limited the danger
f encroachment on the freedom of expression and arbitrary censorship.
inally, by reducing the scope of Article 4 to public conduct, the drafters
ight have avoided conflict with the right to privacy in familial and
intimate associational contexts, reduced the danger of intrusive state action
and lessened the conflict with the principle of freedom of opinion and
expression. The overreach of Article 4 creates difficulties for democratic
states that take their obligations seriously, and has prompted some of
them to enter a relatively large number of reservations to that article."
Neither Article 4 nor the definitional provisions of the Convention
address religious discrimination or invective. This omission poses problems
when vilification occurs in the gray area between race and religion. The
Norwegian Supreme Court dealt with an interesting case in point a few
years ago; the judgment was included in the recent periodic report
submitted by Norway to the Committee." The case concerned an appeal
from a conviction by a district court holding that the defendant had
violated the penal code by circulating leaflets that violently attacked
Norwegian policy on the immigration of "Islamic foreign workers," the
workers themselves and the religion of Islam. In "a weighing up process,"
Associate Justice Aasland compared utterances concerning Islam as a
religion, conditions in the Islamic states and Norwegian immigration
policy, which were protected by the freedom of expression under the
Constitution, with utterances that more directly attacked Islamic immigrants
in Norway. The target of the leaflets was Islamic immigrants, their
character and their behavior. Under the penal code, attacks on the
characteristics of a population group and its behavioral pattern were
punishable. Such attacks exposed that population group to hatred and
contempt. Unless they were punished, it would be impossible to accord an
exposed minority group the protection intended by the law.
This judgment was praised by some members of the Committee as a
good example of the implementation of Article 4 and as striking a balance
between freedom of expression and the ban on incitement to racial
discrimination: "Though the defendant was held entitled to express certain
general views, she had broken the law when she had directed her remarks
against specific ethnic groups."I° The judgment led the Committee to
consider whether religious discrimination was covered by Article 4. Some
members believed that an attack on a particular religion would not breach
the Convention, while an attack on an identifiable national or ethnic
group would. Others said that good grounds could be found for extending
the Convention to cover attacks against religion." It remains to be seen
whether the Committee will try to interpret the Convention as reaching
1o ge MULTILATERAL TREATIES, supra note 9, at 97-107.
+judgment No. 134 B/1981, reprinted in UN Doc. CERD/C/107/Add.4, at 14 (1984).
39 UN GAOR Supp. (No. 18), para. 509, UN Doc. A/39/18 (1984).
6 Id., para. 507.
1985] THE CONVENTION ON RACIAL DISCRIMINATION 305
incitement to hatred of groups that belong to a particular religious
persuasion and have certain ethnic characteristics as well.
V, AFFIRMATIVE ACTION
Race-Conscious Policies under Affirmative Action Programs
Article I(4) allows state parties to take
[s]pecial measures ... for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring
such protection as may be necessary in order to ensure such groups
or individuals equal enjoyment or exercise of human rights and
fundamental freedoms ... •Jrovided, however, that such measures
do not, as a consequence, lea to the maintenance of separate rights
for different racial groups and that they shall not be continued after
the objectives for which they were taken have been achieved.
This provision carves out an exception to the definition of racial discrimination.
One consequence of the emphasis on racial equality is that the
adverse effect upon a privileged racial group of the "[s]pecial measures"
that may be taken pursuant to Article I(4) would not be considered racial
discrimination! until and unless the measures led to "the maintenance
of separate rights for different racial groups" or "continued after the
objectives for which they were taken have been achieved." Thus, bona
fide affirmative action programs cannot be challenged under the Convention,
as they could be if the Convention mandated color-blind policies.'°
Because a violation of the exception stated in Article 1(4) may become
apparent only after the passage of time, there is a danger that states may
use this provision to legitimize discriminatory practices. The Committee
has been alert to this danger, however, and has scrutinized reports from
states accordingly."
Affirmative Action Measures: Their Necessity and Scope
While Article 1(4) excludes affirmative action from the definition of
racial discrimination, Article 2(2) actually obliges state parties to take
affirmative action. They shall,
when the circumstances so warrant, take, in the social, economic,
cultural and other fields, special and concrete measures to ensure the
adequate development and protection of certain racial groups or
individuals belonging to them, for the purpose of guaranteeing them
the full and equal enjoyment of human rights and fundamental
freedoms.
g generally N. LERNER, supra note 4, at 32-33.
However, the Government of Papua New Guinea justified its caution in protecting
ethnic groups on the ground that "protection of one group might be considered discrimination
against others." 39 UN GAOR Supp. (No. 18), para. 284, UN Doc. A/39/18 (1984)
pg. with regard to the provisions of the Constitution of India amended to extend the
special reservation of seats in the Parliament and in the legislative assemblies for the
scheduled castes and tribes and for the Anglo-Indian community for an additional period of
I0 years. 38 UN GAOR Supp. (No. 18), para. 280, UN Doc. A/38/18 (1983). The
306 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
This article as drafted fails to provide standards for determining which
groups should benefit from special measures and when the political,
economic and social circumstances of those groups warrant the introduction
of such measures. The words "when the circumstances so warrant" suggest
that a considerable measure of discreton is left to the states in deciding
when remedial steps must be taken. Although the article mentions "protection,"
it does not provide safeguards against the use of special measures
that promote the "adequate development" of ethnic groups to achieve
their assimilation into the society at large.
Article 2(2) does not concern individual rights but protects groups of
persons!" or individuals qua members of the group. Because of the wide
acceptance of the Convention by states, the Convention and the Committee
can play an important role in the protection of ethnic groups. Article 27
of the Political Covenant protects various rights of persons belonging to
certain minorities, but it does not explicitly provide for affirmative action.''
While the Convention addresses racial "groups" (without specifying their
percentage of the total population) rather than "minorities," this usage
may encompass protecton of ethnic minorities as defined for purposes of
Article 27.
representative of India stated that 40 years was not a long period to bring to the level of the
rest of the community groups that for centuries have been subjected to repression. Id., para.
285. For a discussion of these and other affirmative action provisions of the Indian
Constitution as applied to the reservation of a certain percentage of seats in professional and
technical colleges in favor of "socially and educationally backward Classes," see Singh v,
Mysore, 47 A.LR. 338 (Mysore 1960), reprinted in T. FRANCK, supra note 62, at 428. It is
of interest to contrast this case with Regents of the Univ. of Cal. v. Bakke, 438 US, 265
(1978). S« also Firefighters Local Union No, 1784 • Stotts, 104 S.CL. 2576 (1984),
g7 UN GAOR Supp. (No. 18), para. 468, UN Doc. A/37/18 (1982). Regarding group
rights, see Humphrey, Political and Related Rights, in 1 Meron (ed.), supra note 17, at 17I,
171-72.
For a discussion of the scope of minority rights under Article 27, see Sohn, The Rights
of Minorities, in Henkin (ed.), supra note I8, at 270, 282-87. On minorities in general, see
F. CAPOTORTI, STUDY ON THE RIGHTS OF PERSONS BELONGING TO ETHNIC, RELIGIOUS AND
LINcusTIC MINORITIES, reprinted in UN Doc. E/CN.A/Sub.2/384/Rev.I (UN Sales Pub.
No, E.78.XIV.I, 1979); Ermacora, The Protection of Minorities before the United Nations, 182
RECUEIL DES COURS 247 (1983 1V)
In Communication No. R.6/24 (Sandra Lovelace v. Canada), the Human Rights Committee
established under Article 28 of the Political Covenant concluded that Sandra Lovelace, an
ethnic Indian who because of her marriage to a non-Indian had lost her status as Indian
under the provisions of the (Canadian) Indian Act, was entitled to be regarded as belonging
to the Indian minority and to claim the benefits of Article 27 of the Political Covenant.
Taking into account the fact that her marriage had broken up, and that she had been absent
from the reservation for only a few years, the Committee concluded that to deny her the
right to reside on the reservation was not reasonable and constituted an unjustified denial of
her rights under Article 27. 36 UN GAOR Supp. (No. 40), Ann. XVIII, UN Doc.
A/36/40 (1981). See Bayefsky, The Human Rights Committee and the Case of Sandra Lovelace,
20 CAN. Y.B. INT'L L. 244 (1982).
pr the meaning of "minorities" in the context of Article 27 of the Political Covenant,
see Sohn, supra note IHI, at 276--80.
The Commission on Human Rights recently asked the Sub-Commission on Prevention
of Discrimination and Protection of Minorities to prepare a definition of the term "minority."
UN Doc. E/CN.4/Sub.2/1984/31. Such a definition would not focus on the interpretation
1985] THE CONVENTION ON RACIAL DISCRIMINATION 307
The definition of racial groups gives rise to some questions. First,
should the words "certain racial groups" be interpreted to mean those
groups not possessing majoritarian political status or adequate representation
in the political and economic process or those constituting less than
a majority of the total population? Unless the former interpretation is
followed, the obligation to adopt special measures on behalf of ethnic
groups with a limited share in the political and economic process' could
be avoided by asserting that they constitute the largest percentage of the
total population.'' Conversely, racial groups that possess full political and
economic rights do not qualify for special action under Article 2(2),°
The obligations arising from Article 2(2) may also prove difficult to
implement in countries with populations consisting of a large number of
discrete ethnic or tribal groups,' no single one of which constitutes a
majority of the total population.
How to identify racial groups presents a second set of definitional
problems. A state may recognize a racial or ethnic group as distinct on
the basis of linguistic, religious, economic or social characteristics, or some
combination of these features.' If a group is not identifiable as ethnically
discrete, it is not entitled to the protection of Article 2(2).' For example,
a tribe that has traditionally been nomadic may not otherwise be distinguishable
on the basis of physical characteristics, and if cultural and other
nonracial characteristics are ignored,' a state might attempt to deny that
group the protection of Article 2(2). The degree to which a given group
must be different from the remainder of the population to benefit from
the provisions of Article 2(2) is not clear. States may attempt to evade
their duties by refusing to acknowledge that a specific group should be
of Article 27 of the Political Covenant. By contrast, Capotorti's tentative definition (see supra
note HI, para. 568) was drawn up solely with the application of Article 27 in mind. It
spoke, in part, of a "group numerically inferior to the rest of the population of a State, in a
non-dominant position, whose members. . . possess ethnic, religious or linguistic characteristics
differing from the rest of the population and show, if only implicitly, a sense of solidarity,
directed towards preserving their culture, traditions, religion or language." Cited in UN Doc.
E/CN.4/Sub.2/1984/31, at 2.
The Committee has requested information on the machinery for drawing minorities
into the political process in compliance with Articles I(+) and 2(2) of the Convention, 39
UN GAOR Supp. (No. 18), para. 356, UN Doc. A/39/18 (1984) (Vietnam).
e see generally J. SIGLER, MINORITY RIGHTS: A COMPARATIVE ANALYSIS 5, 8 (1983)
Members of the Committee have inquired, rather suspiciously, about the extent of the
separation and points of contact "between the elite minority community" of Mauritius and
the rest of the population, 39 UN GAOR Supp. (No. 18), para. 254, UN Doc. A/39/18
(1984).
E.g., Tanzania. See 38 UN GAOR Supp. (No. 18), para. 330, UN Doc. A/'38/18
(1989).
g gerally J. SIGLER, supra note 114, at 6--10.
Sigler observes that "[mJost nations avoid problems of group rights by simply not
recognizing the status of the group." Id. at 12-13.
g generally id. at 10.
E.g, should Spanish Basques be identified only as a linguistic minority, or do they
constitute a discrete ethnic group? 37 UN GAOR Supp. (No. 18), para. 281, UN Doc.
A/37/18 (1982).
308 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
defined as ethnically distinct.' States' obligations to resort to affirmative
measures should be determined by the group's degree of access to political
and economic resources, rather than by overemphasis on the anthropological
analysis of the group's relationship to the rest of the population. While
Article 2(2) does not provide standards for determining when circumstances
warrant special measures,' the text suggests that the test is whether the
group in question requires the protection and aid of the state to attain a
full and equal enjoyment of human rights. Article 2(2) uses the term
"racial groups," not races, which suggests perhaps a wider spectrum of
beneficiaries. But the absence of clear definitions and the anthropological
difficulty of defining! and identifying racial groups lead to the conclusion
that this problem will continue to be troublesome.
To determine whether a state has complied with the obligations imposed
by Article 2(2), demographic statistics specifying the ethnic composition
of the population may be essential, and possibly a socioeconomic profile
of the various ethnic groups as well. Data based on religious!' or
The representative of Niger argued that discrimination against nomadic groups in his
country was economic, not ethnic. 38 UN GAOR Supp. (No. 18), para. 494, UN Doc.
A/38/18 (1983).
gould Canadian Indians who have left the reservations no longer enjoy the same
rights or protections as are afforded to those who remained on the reservations? Was the
definition of membership in such groups too restrictive? Id., para. 394. See also note HE
supra.
+ Australia has recognized that its aboriginal citizens constitute a group for whom special
and concrete measures are required to promote their development. 39 UN GAOR Supp.
(No. 18), para. 328, UN Doc. A/39/18 (1984). Members of the Committee have inquired
how the aboriginal people could be helped to achieve in practice their full political and civil
rights. Id., para. 335.
' see generally UN Doc. E/CN.4/Sub.2/1984/31, at 4.
me Committee has thus requested that Italy include in its next periodic report a
comparative socioeconomic analysis of the various minorities and ethnic groups so that it
could be determined for which of those groups measures should be adopted to ensure their
adequate development. 39 UN GAOR Supp. (No. 18), para. 300, UN Doc. A/39/18 (1984).
The Committee has requested that the Government of the Central African Republic provide
information not only on the demographic composition of the population, but also on the
socioeconomic situation of the various ethnic groups and about measures to improve the
living conditions of the pygmies. Id., para. 117. In emphasizing its interest in the participation
of ethnic groups in the economic and political processes, the Committee requested that the
Government of Colombia provide information
on the National Development Programme for Indigenous Peoples, measures to help
disadvantaged groups and comparative figures for the various groups relating to
education, per capita income, housing and medical care. Statistics should also be
furnished... on the employment of members of the various racial groups in the
public service and their representation among elected officials. The Committee would
also like to have information on the enjoyment by members of the indigenous population
of their political as well as cultural rights, their real situation.. .,
Id., para. 131.
as re the case of Mauritius, which classifies its population on a religious rather than an
ethnic basis, members of the Committee asked how a race relations act could be effective if
information on the racial composition of the population was no longer kept. Id., paras.
252, 256.
1985] THE CONVENTION ON RACIAL DISCRIMINATION 309
linguistic affiliation are often irrelevant for these purposes. But states
may be unable to compile accurate demographic profiles because the
census may not be frequently or effectively taken, or it may be considered
improper to inquire about ethnicity or the inhabitants may not be required
to indicate their race.128 Recognizing the difficulties, the Committee has
agreed that demographic statistics need not be precise but should at least
indicate percentages of the total population and that it should press
countries that have not been able to supply such information to do so
when ethnic problems arise.
Towards Assimilation?
Another problem-already mentioned-stems from the absence of
safeguards against the use of measures that, in promoting the adequate
development of racial groups in social, economic, cultural and other fields,
constitute assimilationist policies and may result in a group's loss of cultural
identity. Article 2(2) does not require states to aid in the preservation of
cultural identity, but the reference to the cultural field and to "protection,"
rather than only to "development," suggests that at least the spirit of the
Convention would be violated by such measures. Some states have shown
considerable awareness of their obligations in this regard.I To some
extent, the Committee has compensated for the deficiency by focusing
inquiry upon the relevant issues. In examining specific programs undertaken
for the adequate development of certain racial groups, and the consequences
of such measures, the Committee has recognized the tension between the
need for social and economic equality and the need to preserve the
integrity of discrete cultures. Thus, in discussing the report of New
Zealand, the Committee stated that the "one Nation: two peoples"
approach followed by that state "in order to preserve the identity of the
Maori. .. was within the context of article 2 and the Committee's policy
on minorities.9 The Committee inquired both whether the Maoris lived
in segregated areas and whether the Maori community living in urban
areas was at risk of losing its identity.3
If a state carries the concept of integration of ethnic groups into the
mainstream of society too far, and traditions and customs are abandoned,
37 UN GAOR Supp. (No. 18), para. 108, UN Doc. A/37/18 (1982).
32 UN GAOR Supp. (No. 18), para. 87, UN Doc. A/32/18 (1977) (the Federal
Republic of Germany). The Committee requested information on the demographic composition
of the Algerian population. Its members asked for clarification regarding the assertion in
Algeria's report that a census of the Algerian population on ethnic or racial grounds would
be contrary to Islam. 39 UN GAOR Supp. (No. 18), para. 91, UN Doc. A/39/18 (1984).
I 38 UN GAOR Supp. (No. 18), paras. 513-14, UN Doc. A/38/18 (1983).
per the Italian Government, the problem was not the assimilation of the members of
minorities, "since they were completely integrated into the Italian society and had the same
economic and political rights as the rest of the population, but the preservation of their
cultural identity and languages." 39 UN GAOR Supp. (No. 18), para. 307, UN Doc.
A/39/18 (1984)
""Ad., para. 78. 1 IA
310 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
could that constitute "a form of racial discrimination2139 Would educational
programs instituted by the government to promote the use of the official
language by the indigenous population result in the assimilation of diverse
cultures? To avoid such a result, the use of the group's own language
should be preserved and not eliminated by the official language." One
should be aware, however, of the danger that measures purportedly taken
to preserve the language and the culture of a particular group, and that
separate it from the community at large, may be used as a vehicle for
continuing discrimination.
In reviewing reports, the Committee has warned that when governments
take measures to promote the development of ethnic groups, they must
guard against the assimilation that might result. On occasion, members of
the Committee have injected questions about claims of regional autonomy!
and even self-determination!" into its deliberations.
In states composed of various discrete racial or ethnic groups, the
obligation to take special measures for their protection may conflict with
the perceived need to create a cohesive national identity,' because such
measures may ultimately isolate rather than integrate the groups. The
traditional rights of groups to land' may conflict with the government's
199 UN GAOR Supp. (No. 18), para. 121, UN Doc. A/9618 (1974) (Norwegian Lapps
and Gypsies). In response to comments from members of the Committee, the representative
of Norway indicated that employment opportunities offered to the Lapps allowed them to
retain their traditional way of life and that the Government did not try to impose an alien
way of life on Gypsies. 31 UN GAOR Supp. (No. 18), paras. 207, 212, UN Doc. A/31/18
(1976).
1 38 UN GAOR Supp. (No. 18), para. 210, UN Doc. A/38/18 (1983) (measures taken
by the Government of Venezuela to promote the use of Spanish). The Committee requested
information on whether the Government of the Central African Republic recognized and
protected the rights of minorities to have their own language and develop their own culture
(39 GAOR Supp. (No. 18), para. 17, UN Doc. A/39/18 (1984)) and on what was being
done in Colombia to preserve the indigenous languages. Id., para. 131.
g1 UN GAOR Supp. (No. 18), para. 70, UN Doc. A/31/18 (1976) (Iraqi Kurds).
» 37 UN GAOR Supp. (No. 18), para. 197, UN Doc. A/37/18 (1982) (ethnic groups in
Ethiopia).
7 Te Committee inquired how the policy of Botswana of "discouraging ethnocentrism
among the different ethnic groups could be reconciled with the establishment of a separate
house of chiefs in addition to the National Assembly" (39 GAOR Supp. (No. 18), para. 105,
UN Doc. A/39/18 (1984)) and "how the efforts being made to preserve racial harmony
affected the traditions of various ethnic groups in the country, what provision was made to
preserve their culture, and what were the consequences of fostering the process of nationbuilding
while guaranteeing the identity of ethnic groups." Id., para. 106.
I g7 UN GAOR Supp. (No. 18), para. 162, UN Doc. A/37/18 (1982) (an apparent
inconsistency between Panamanian policies of integrating indigenous groups and of maintaining
geographically distinct zones for them).
re the case of Colombia, the Committee requested information
regarding the indigenous population living in the reservation lands.., the Government's
land policy, the legal status of reservations, whether the indigenous population had the
right to acquire real property elsewhere in Colombia and dispose of it at will, .. +
development of reservation lands, ... how the rights of the indigenous population
were protected if a reservation was used for a national development project, whether
1985] THE CONVENTION ON RACIAL DISCRIMINATION 311
land use and redistribution policies, since the latter may stimulate the
dispersal of racial groups and a consequent loss of cultural identity."" The
conflict between guaranteeing economic rights and preserving traditional
ways of life may often be irreconcilable.' Such forces as industrialization,
population growth, the depletion of resources and the introduction of new
agricultural techniques require adaptation, which erodes cultural identity
unless, perhaps, the government resorts to a policy of territorial grants.
If Article 2(2) had been more carefully worded, it still might not have
ensured the equalization of rights among ethnic groups without loss of
cultural identity, but the present text exacerbates the difficulties through
its lack of precision and standards.
VI. THE EXCEPTION BASED ON CITIZENSHIP
Article 1(2) provides an exception to the applicability of the Convention
that is overly broad. It allows state parties to make "distinctions, exclusions,
restrictions or preferences. .. between citizens and non-citizens." Article
I(3) states that nationality, citizenship or naturalization provisions of a
particular state may not discriminate against any particular nationality,
but no provision prohibiting discrimination against particular nationalities
is made with regard to other matters. Under the wording of Article 1(2),
a state discriminating on the basis of race or ethnic origin may try to claim
that the measures it has taken are permissible because they are based upon
alienage, since members of a given ethnic group may also be noncitizens.
Such claims would be critically scrutinized by the Committee as to whether
discrimination against a particular nationality on grounds of race! was
involved. But given the difficulty of establishing that racial factors were
implicated (e.g., in the case of a mass expulsion of aliens who happened
to belong to a different ethnic or tribal group), a more careful formulation,
placing upon the state the burden of demonstrating that its discriminatory
action was based exclusively upon alienage, would have been preferable.
the indigenous population was permitted to migrate from its reservation land, and, if
so, whether it lost its rights to the land from which it had emigrated.
39 UN GAOR Supp. (No. 18), para. 131, UN Doc. A/39/18 (1984).
31 UN GAOR Supp. (No. 18), para. 226, UN Doc. A/31/18 (1976) (with regard to
the percentage of Ecuadoran Indians who had benefited from Ecuadoran agrarian reform);
37 UN GAOR Supp. (No. 18), para. 102, UN Doc. A/37/18 (1982) (has Fiji reserved for
specific racial groups land leased by the Government, and what was the traditional or tribal
basis for such leases?).
o'The different policies followed by some Latin American governments on these questions---
an amalgam of the various races vs. integration of ethnic groups into the body politic
while preserving their respective ethnic characteristics---were noted in 31 UN GAOR Supp.
(No. 18), para. 234, UN Doc. A/31/18 (1976).
« 33 UN GAOR Supp. (No. 18), para. 300, UN Doc. A/33/18 (1978) (Brazilian policy
of gathering the indigenous Amazon groups into certain areas of the country where they
could live in conformity with their traditions or, if they so desired, strengthen their contacts
with the outside culture).
"ga eg,28 UN GAOR Supp. (No. 18), para. 63, UN Doc. A/9018 (1973)
312 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
The use of the citizenship exception as a pretext for discrimination could
thus have been deterred.
The legal situation regarding the scope of protected persons is further
complicated by the broad statement in Article 5 guaranteeing the rights
of everyone, without distinction as to race, color, or national or ethnic
origin, to equality before the law, "notably" in the enjoyment of certain
enumerated rights. The drafting of the Convention and of Article 5 has
been criticized as inadequate even by the members of the Committee.'
But Article 5which was discussed in section III above--must be interpreted
in a manner consistent with the Convention as a whole, including
Article 1(2). Arguably, then, despite the broad language of Article 5, state
parties may limit their obligations under Article 5 to citizens if this
limitation is not a pretext for racial discrimination. Other human rights
instruments permit the restriction of rights on the basis of citizenship, but
the scope of the permissible restrictions is circumscribed. Could it thus
be argued that distinctions applied to noncitizens are beyond the purview
of the Convention, and outside the competence of the Committee, even
when the rights denied pertain to security of the person, protection by
the state against violence and civil rights generally,' rather than to
political rights! or freedom of movement! with regard to which aliens
are in a different position?
Members of the Committee have tried to temper the severity of the
restrictive interpretation, claiming that while political and economic rights
may be limited on the basis of alienage, "fundamental" or civil rights may
not be so limited.' As regards economic rights, it can perhaps be argued
that economic constraints may justify limiting some entitlements (such as
welfare or health care) to citizens, but limiting employment-related benefits
would not be supportable under this rationale. Some members of the
Committee have gone further by arguing, for instance, that aliens should
receive "national invalidity and widows' pensions" on the same basis as
citizens, whether or not there were bilateral agreements providing for
such rights;" and by questioning the adequacy of educational facilities
for children of foreign workers.I On the other hand, some members
have not regarded distinctions made among noncitizens pursuant to
bilateral or regional economic agreements as violations of the Convention
Id., para. 61. For studies of Article 5, see Partsch, supra note 17; Buergenthal, supra
note 17, at 208-11.
Art. 21, Universal Declaration, supra note 36 (political rights and equal access to public
service reserved to citzens); Art. 2(3), Economic Covenant, supra note 36 (developing
countries permitted to make distinctions with regard to economic rights of non-nationals).
M McKean observes that it is unfortunate that restrictions on aliens were not made more
selective and that there is no redress under the Convention for restrictions based upon lack
of citizenship. W. MCKEAN, supra note I7, at 158. But see 34 UN GAOR Supp. (No. 18),
para. 136, UN Doc. A/34/18 (1979).
Sa 28 UN GAOR Supp. (No. 18), paras. 61-62, UN Doc. A/9018 (1973)
see id., para. 59. +?I, paras. 61-62.
34 UN GAOR Supp. (No. 18), para. 386, UN Doc. A/34/18 (1979)
' Id., para, 348.
1985] THE CONVENTION ON RACIAL DISCRIMINATION 313
if the agreements, and not race or ethnicity, are the basis for the
differential treatment. Despite the broad personal reach of Article 5,
differential treatment of citizens of different states, as when arising
from the application of the most-favored-nation clause, has been seen as
legitimate.9s
VII. INDIVIDUAL PETITION AND COMPETENT INTERNAL BODIES
Article I4 creates a right of petition for individuals or groups of
individuals within the jurisdiction of a state party that has made a
declaration recognizing the competence of the Committee to receive and
consider such communications. The Committee is authorized to make
suggestions and recommendations concerning these communications and
is not confined to making a statement of its views.' In accordance with
Article 14(9), upon the tenth declaration made by a state party, the
procedure outlined in Anicle 14 entered into force on December
3, 1982.1
In 1983 the Committee considered draft provisional rules of procedure
governing the Committee's discharge of its responsibilities under Article
14,I The meaning of that article has thus become an important matter.
An interesting question of interpretation arises from the wording of
Article 14(2) and the relationship of that provision to other provisions of
Article 14. Article 14(2) provides:
Any State Party which makes a declaration as provided for in paragraph I of this article may establish or indicate a body within its
national legal order which shall be competent to receive and consider
petitions from individuals and groups of individuals within its jurisdiction
who claim to be victims of a violation of any of the rights set
forth in this Convention and who have exhausted other available
local remedies.
This wording suggests that the existence of a body is optional. Article
I4(5), however, provides that "[ijn the event of failure to obtain satisfaction
g8 UN GAOR Supp. (No. 18), para. 64, UN DOC. A/9018 (1973). Regarding the
relationship between the Convention and other human rights instruments, see id., para. 62
Buergenthal argues that
if a state is under an international obligation, by virtue of its ratifications of the
Covenants, to ensure the enjoyment of a right that is also listed in article 5 of the
Convention, and if the state's failure to do so has more adverse consequences for
individuals belonging to a racial minority than for the rest of its population, a violation
of the Convention might be made out.
Buergenthal, supra note 17, at 2I.
»parusch, supra note I7, at 228.
' Article 14(8) of the Convention is thus different from Article 5(+) of the Optional
Protocol to the International Covenant on Civil and Political Rights, GA Res. 2200, 21 UN
GAOR Supp. (No. 16) at 59, UN Doc. A/6316 (1966).
38 UN GAOR Supp. (No. 18), para. 23, UN Doc. A/38/18 (1983). The Committee
has already commenced considering communications under Article 14, 39 UN GAOR Supp.
(No. 18), para. 573, UN Doc. A/39/18 (1984).
38 UN GAOR Supp. (No. 18) at 7-13, 138-44, UN Doc. A/38/18 (1983).
314 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
from the body established or indicated in accordance with paragraph 2 of
this article, the petitioner shall have the right to communicate the matter
to the Committee within six months." How can the procedure be put into
operation if a particular state, invoking the optional character of Article
14(2), has neither established nor indicated a "body"?
Artcle 14(7)(a), which provides that the Committee shall not consider
any communication from a petitioner unless it has ascertained that the
pettioner has exhausted all available local remedies, except where the
application of the remedies is unreasonably prolonged, makes no mention
of either the "body" or the 6-month period. Because of concern that
without the establishment of the "body" the procedure outlined in Article
14 could not be put into operation, an attempt has been made in the
Committee to interpret Article 14(2) as requiring the existence of a
body. There is, however, no merit in that interpretation. It should
obviously be left to states to decide how to handle complaints of racial
discrimination in their domestic legal systems. Some countries may feel
that the complexity of such complaints necessitates the involvement of
various organs, depending upon the subject (e.g., housing or employment)
or the various competent levels of government (e.g., federal, provincial,
municipal).
The practical problems arising from the deficient drafting of Article 14
have been largely resolved by the Committee's Provisional Rules of
Procedure. Rule 90(f) (now 9(f)) provides that the Committee or its
working group shall ascertain "[t]hat the communication is, except in the
case of duly verified exceptional circumstances, submitted within six
months after all available domestic remedies have been exhausted, including,
when applicable, those indicated in paragraph 2 of article 14, Rule
90(e) (now 9I(e)) establishes the broader principle that the Committee
should ascertain whether the individual has exhausted all available domestic
remedies, including, when applicable, those mentioned in Article 14(2),
except when the application of the remedies is unreasonably prolonged.
The Committee's Rules of Procedure, by making it possible for the
petition system to function without burdening states with obligations not
dictated by the text of the Convention, provide a practical resolution of
the problems created by the lack of textual clarity.
ft was thus argued that "while it was true that the word 'may' was used in that
paragraph, it was the 'establishment' or 'indication' of that body that was optional, and not
its existence." 32 UN GAOR Supp. (No. 18), para. 124, UN Doc. A/32/18 (1977).
1e Tie interpretation ignores the clear meaning of the text. The word "may" was used
to indicate the optional nature of the procedure. N. LERNER, supra note 4, at 84. Obviously,
the "body" cannot exist unless it is "established" as a new entity, or it preexisted and is
identified or indicated by the state party. The procedures outlined in paragraphs 4 and 5
are intended to ensure that local remedies have been exhausted, but the existence of such
remedies need not depend upon the existence of the "body"; other judicial or administrative
forums providing such remedies may exist.
procedure for Considering Communications from Individuals under Article 14 of the
Convention, 38 UN GAOR Supp. (No. 18) at 138, 141-42, UN Doc. A/38/18 (1983). For
the current Rules of Procedure, see UN Doc. CERD/C/35/Rev.2 (1984)
1985] THE CONVENTION ON RACIAL DISCRIMINATION 315
VIII. CONCLUDING OBSERVATIONS
The Convention is a primary international human rights instrument
because of both the crucial nature of its subject and the exceptionally
large number of states that have become parties to it. This study has
explored only a limited number of questions; many others merit consideration,
e.g., whether Article 9 has established a viable system of reporting
or whether it has created a reporting burden that exceeds the administrative
capacity of most states, especially if account is taken of reporting obligations
under other human rights instruments."
The work of the Committee has proved to be a useful lighthouse,
illuminating some of the important issues that have emanated from
implementation of the Convention. The Committee has often ventured
into controversial areas in attempting to advance observance of the basic
norms of the Convention. Composed of experts nominated and elected by
state parties in accordance with Article 8, the Committee, not surprisingly,
has reflected and given strong support to values held by the majority of
the international community.
Like other human rights instruments, the Convention deserves praise
for some of its provisions but only mixed reviews for others. Some
provisions, such as the "effect" clause of Article I(l) and the "affirmative
action" clauses, are important and appear to move in parallel directions
to U.S. civil rights law. In some areas, the Convention advances admirable
objectives, e.g., in seeking the elimination of racist theorizing. In many
respects, it establishes significant and desirable goals and objectives that
merit the support of the international community. But a number of
provisions suffer from a lack of textual clarity. Some provisions create
serious conflicts with the rights of freedom of expression, association and
privacy. Indeed, the Convention reaches far into the area of private life.
It creates substantial difficulties for democratic countries in which these
rights are valued and protected by constitutions, statutes and traditions.
Unfortunately, such countries can comply with their Convention obligations
only by resorting to reservations; they are rather freely allowed by Article
20(2), which requires objections by two-thirds of the state parties to
determine that a reservation is "incompatible or inhibitive." It has been
argued that "[ijn the absence of a definitive judicial ruling [by the
International Court of Justice, under Art. 22 of the Convention] on the
admissibility of the reservation in question, the State party concerned
might be asked [by the Committee] to withdraw its reservation":"" but if
to "ask" implies anything more than "appeal," this appears to go beyond
the Committee's powers under the Convention. Some state parties that
could have availed themselves of the right to make reservations so as to
Meron, Human Rights--Effective Remedies (Remarks), 77 ASIL PROC. (1983, forthcoming);
see also UN Doc. A/39/484, paras. 16, 21-22 (1984).
'Ingl~s, supra note I7, para. 224. The UN Secretariat has advised the Committee,
correctly, that even a unanimous decision by the Committee that a reservation is unacceptable
would have no legal effect and that the Committee has no authority but to take into account
the reservations made by state parties. Id., para. 206,
316 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
remain within the framework of the Convention without actually having
to implement some of its normative provisions have not gone to the
trouble of doing so, sometimes perhaps because of a desire to avoid
highlighting their difficulties or because of a cynical attitude towards
international human rights commitments. Thus, although only a small
minority of state parties have made reservations to Article 4, most states
have not carried out their obligation under that article to adopt the
necessary implementing legislation.
The tension between certain norms stated in the Convention and some
of the rights with which it appears to conflict reflects divergent community
priorities and important societal differences, especially when the reality
and immediacy of danger to the public peace posed by racist organizations
and theories must be assessed and the rights of expression, association and
privacy are involved. The Convention requires that policies that perpetuate
racial discrimination be changed, but it does not furnish adequate guidance
about permissible restraints on implementation or balancing considerations
that may properly be invoked by state parties. Like other human rights
instruments, the Convention is occasionally drafted in such general terms
as to make its application to specific cases difficult."
Several crucial provisions of the Convention suffer from deficient
drafting. Some of these deficiencies result from the fact that the definition
of racial discrimination was not adjusted to the operative provisions after
the latter were drafted. The speed with which the Convention was
considered and adopted, the robustness of the political forces that pushed
its formulation and adoption, and perhaps a certain impatience with the
niceties of legal drafting are among the factors that underlie some of the
problems discussed in this study. The imperfect text that resulted, of
course, reflects the political issues and realities of the United Nations. It
would be simplistic to expect that difficulties due to these factors could
have been avoided through better legislative techniques. But some, if not
all, of the Convention's weaknesses could have been avoided through
better legislative techniques and skills, especially where there was no
political reason for the language selected and the inadequate drafting.
The United States! and other governments have rightly criticized the
UN human rights lawmaking process." Here one can only speculate
whether, for a highly political subject and in a politicized environment,
resort to the legislative techniques followed by the International Law
Commission,"° the United Nations Commission on International Trade
er see Greenberg, supra note I7, at 307, 318, 330; Lillich, supra note 37, at 115, 121.
' statement by Jerome J. Shestack in the Third Committee of the General Assembly,
sumarid in UN Doc. A/C.3/35/SR.56, at 12-14 (1980).
e+ A detailed critique of this process is outside the scope of this essay. See generally Meron,
Norm Making and Supervision in International Human Rights: Reflections on Institutional Order,
76 A]IL 754 (1982); Alston, Conjuring up New Human Rights: A Proposal for Quality Control,
78 AJIL 607 (1984).
o On the mandate and legislatve techniques of the ILG, see 2 REVIEW OF THE MULTILATERAL
TREATY-MAKING PROCESS, UN Doc. ST/LEG/SER.B/2I, at 183-223 (prov. ed.
1982).
1985] THE CONVENTION ON RACIAL DISCRIMINATION 317
Law! or the International Labour Organisation! would have produced
a significantly better product.
In evaluating the Convention, it is ultimately necessary to distinguish
between several different problems. One is deficient drafting. Another is
policies with which we may disagree but which faithfully reflect the political
wishes of the majority, e.g., with regard to the value of the freedom of
speech, association or private life in relation to other values. Third, there
is the problem of the Convention's far-reaching goals, some of which do
not lend themselves to speedy and full implementation even in developed
and sympathetic countries. It has already been observed that the Convention
was intended to be, in its operative provisions, a "maximalistI instrument.
Perhaps the majority of the United Nations wanted to adopt an ambitious
set of goals, a program, without worrying too much about the prospects
for full implementation in the immediate future. Demander le plus pour
obtenir le moins. Some observers would say that this breeds disrespect for
the law. But others would maintain that laws not only should reflect the
mores of the community, but should be a catalyst for progress, for ever
higher standards; that they should lead, not follow. There is, of course,
constant tension and interaction between the behavior of the community
and its norms of conduct. Pollock has observed that to be respected, law
must express, on the whole, the conscience of the community.' Law can
either lag behind public opinion or be in advance of it. Rules of law may
elevate the standard of current morality: "The moral ideal present to
lawgivers and judges, if it does not always come up to the highest that has
been conceived, will at least be, generally speaking, above the common
average of practice; it will represent the standard of the best sort of
citizens."" Similarly, Professor Schachter, discussing De Visscher's statement
that custom is established not only through "counting the observed
regularities, but... weighing them in terms of social ends considered
desirable," observes that governmental lawmaking conferences do not
operate only through an inductive process, but include "as a necessary
element a teleological factor which distinguishes the acceptance of certain
patterns of conduct as law from the mere observation and recording of
regularities of behaviour.... a collective judgment of the states...
which implicitly recognizes the contemporary social value of the rules in
the text,1
Was the Charter of the United Nations adopted by a community that
really practiced the values stated in it? Or was it rather a code of better
conduct of nations? To pave the way for greater respect for human rights
on the mandate and legislative techniques of UNCITRAL, see id. at 224-36.
' On the mandate and legislative techniques of the ILO, see id. at 237--58.
w schwelb, supra note 4, at 1057.
F, POLLOCK, JURISPRUDENCE AND LEGAL ESSAYS at xlii (A. Goodhart ed. 1978),
o I. at 26.
gehachter, The Nature and Process of Legal Development in International Society, in THE
STRUCTURE AND PROCESS OF INTERNATIONAL LAW 745, 777 (R. Macdonald & D. Johnston
eds. 19839).
318 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 79
and human dignity, human rights instruments must be more advanced
than the mores of the community. It is reasonable for the Convention to
establish standards that are more enlightened than those actually followed
by most states. But how far in advance should human rights instruments
be? Idealism should not be confused with utopia. Too great a distance wilt
discourage acceptance and cause a proliferation of reservations. Whenever
human rights instruments are drafted, this question deserves to be on the
"conceptual agenda" of the lawmakers.
see generally Schachter, Human Dignity as a Normative Concept, 77 AJIL 848 (1983).
Annex 1012
W. Wolfrum, 'The Committee on the Elimination of Racial Discrimination', 3 Max Planck
Yearbook of United Nations Law 489 (1999)
The Committee on the Elimination of Racial
Discrimination
Rudiger Wolfrum
I. Origins, New Challenges
The Committee on the Elimination of Racial Discrimination (CERD)
was established in 1970; it has the function to monitor States Parties'
implementation of the International Convention on the Elimination of
All Forms of Racial Discrimination (the Convention).' The Convention
provides for four functions of the Committee: to examine States Parties'
reports (article 9); to consider inter-State communications (arts 11-13);
to consider individual communications (article 14); and to assist other
UN bodies in their review of petitions from inhabitants of Trust and
Non-Self Governing Territories and of reports of those territories (article
15). The Committee has further developed a mechanism on early
warning and urgent procedure.
CERD was the first special organ to implement a human rights
treaty. As such it was able to pave the way for all following human
rights treaty bodies, such as the Human Rights Committee under the
UNTS Vol. 660 No. 9646; as to the drafting history of the Convention see
E. Schwelb, The International Convention on the Elimination of All
Forms of Racial Discrimination", ICLQ 15 (1966), 996 et seq.; N. Lerner,
The UN Convention on the Elimination of All Fors of Racial Discrimination,
2nd edition, 1980; M. Banton, International Action Against Racial
Discrimination, 1996, 50 et seq.; K.J.Partsch, "Elimination of Racial Discrimination
in the Enjoyment of Civil and Political Rights", Tex.Int'lL.J.
14(1979), 191 et seq.
490 Max Planck UNYB 3 (1999)
International Covenant on Civil and Political Rights. As of 1999 the
Convention had been ratified by 159 States.
One reason for starting the process for the drafting of what later became
the International Convention on the Elimination of All Forms of
Racial Discrimination were manifestations of anti-Semitism and other
forms of racial and national hatred and religious and racial prejudices of
a similar nature. When the Convention was adopted there was neither
a common perception about the definition of racial discrimination nor
about the reasons for this phenomenon. This is, to a certain extent, still
the case amongst States Parties to the Convention and even among the
members of the Committee. However, this does not impede the functioning
of the Committee.
The different approaches at the time of the drafting of the Convention
are, to a certain extent, reflected in its Preamble. Reference is made
to the condemnation of colonialism and the practices of segregation. It
is stressed that the Declaration of the United Nations General Assembly
on the Granting of Independence to Colonial Countries and Peoples
of 14 December 1960 (A/RES/1514(XV)) had affirmed the necessity
of bringing them to a speedy and unconditional end. Hence, the
objective of the Convention is connected with the process of decolonization.
This, however, is only one facet.
The Preamble further states that the doctrine of superiority based on
racial differentiation is, apart from being dangerous, scientifically false,
morally condemnable and socially unjust. This is directed against ideologies
such as Nazism and Fascism in their historical and modern
forms as well as against comparable modern ideologies based upon or
using racism for the promotion of their political objectives. This aspect
has lost nothing of its validity The Preamble further states that racial
discrimination is "an obstacle to friendly and peaceful relations among
nations and is capable of disturbing peace and security among peoples".
Developments in the recent years have proven this to be correct to an
extent probably not anticipated when the Convention was drafted. By
referring to the potential of racial discrimination as a threat to peace and
security a connection to Article 39 of the United Nations Charter has
been established, although it has not yet been explicitly used as such by
the Security Council. The most important reason for the elimination of
racial discrimination is somewhat hidden in the Preamble, namely that
2 Schwelb, see note 1, 997; M. Banton, Effective Implementation of the UN
Racial Convention", New Community 20 (1994), 475; Banton, see note 1,
54.
Wolfrum, The Committee on the Elimination of Racial Discrimination 491
racial discrimination is a violation of human dignity. This puts the Convention
within the context of other human rights instruments, in particular,
the International Covenant on Civil and Political Rights as well
as the International Covenant on Economic, Social and Cultural Rights.
This latter aspect deserves to be highlighted in the work of the Committee
as well as in the reports submitted by States Parties. Occasionally
a tendency exists to emphasize the protection of certain ethnic groups
and the discussion between the Committee and the States Parties then
sometimes becomes limited to the question as to whether such groups
exist or are distinct compared to the dominant population as to criteria
referred to in article 1 para.1 of the Convention or not.
The reason for its final approval and its comparatively quick entry
into force was that the Convention was perceived by many States Parties
as a mechanism directed against apartheid and comparable policies.°
Although the system of apartheid has been dismantled, the Convention
has nothing lost of its relevance for reasons already addressed at the
time when the Convention was drafted and reflected in the Preamble.
Evidence to that extent are the conflicts which have amounted to genocide
in the recent years. Another reason why the Convention soon
gained wide acceptance may have been that already the United Nations
Charter formulates the rule of non-discrimination as a directly binding
principle.'
In spite of the attempts which have been made to abolish policies
and practices based upon or promoting xenophobic and racist motivations
and to counter theories based upon or endorsing such practices,
these theories, policies and practices are still in existence or even gaining
ground again or taking new forms or both. A serious new form of racism
is reflected in the so-called policy of "ethnic cleansing".
For the reason that the manifestation of racism and xenophobia is
gaining ground the international community has renewed its efforts to
combat racism, racial discrimination, xenophobia and related forms of
intolerance. The World Conference on Human Rights has called for the
J
4
See in this respect Lerner, see note 1, 40 et seq.; as to the new developments
see A/RES/49/146 of 23 December 1994, Third Decade to Combat Racism
and Racial Discrimination.
The International Court of Justice has stated that: "to establish ... and to
enforce distinctions, exclusions, restrictions and limitations exclusively
based on grounds of race, colour, descent or national or ethnic origin which
constitute a denial of fundamental human rights is a flagrant violation of
the purposes and principles of the Charter", IC] Reports 1971, para. 131.
492 Max Planck UNYB 3 (1999)
elimination of racism and racial discrimination as a primary objective
for the international community.' The General Assembly of the United
Nations has proclaimed a Third Decade to Combat Racism and Racial
Discrimination, from 1993 to 2003.° It has adopted a programme to
achieve measurable results in reducing and eliminating discrimination
through specific national and international actions. The Commission
on Human Rights has decided to appoint a Special Rapporteur on contemporary
Forms of Racism, Racial Discrimination, Xenophobia and
related Intolerance." Subsequently the Commission made the mandate
of the Special Rapporteur more explicit by requesting him to examine
incidents of contemporary forms of racism, racial discrimination, any
form of discrimination against Blacks, Arabs and Muslims, xenophobia,
negrophobia, anti-Semitism, and related intolerance.' The reason for
5
6
7
8
9
A/CONE 157/24 (Part I), Chapter III.
A/RES/48/91 of 20 December 1993.
AIRES/49/146 of 7 February 1995, Annex. The proclamation of the First
Decade on Action to Combat Racism and Racial Discrimination coincided
with the 25th anniversary of the Universal Declaration of Human Rights
(A/RES/2919 (XVII) of 15 November 1972). In launching the First Decade,
the General Assembly defined the goals to be the promotion of human
rights and fundamental freedoms for all, without distinction of any kind on
grounds of race, colour, descent or national or ethnic origin, especially by
eradiction of racial prejudice, racism and racial discrimination. In A/RES/
38/14 of 22 November 1983 the General Assembly approved the Programme
of Action for the Second Decade.
CHR Resolution 1993/20 of 2 March 1993.
CHR Resolution 1994/64 of 9 March 1994; see also report of the Special
Rapporteur Doc.E/CN.4/1995/78, para.3. In his report A/49/677 to the
General Assembly the Special Rapporteur defined the terms of his mandate
as follows: "Racism is a product of human history, a persistent phenomenon
that recurs in different forms as societies develop, economically and
socially and even scientifically and technologically and in international relations.
In its specific sense, racism denotes a theory, which purports to be
scientific, but is in reality pseudo-scientific, of the immutable natural (or
biological) inequality of human races, which leads to contempt, hatred, exclusion
and persecution or even extermination" (6/7). Defining racial discrimination"
the Special Rapporteur refers to article 1 of the International
Convention on the Elimination of All Forms of Racial Discrimination (8).
Xenophobia is defined as a rejection of outsiders... Xenophobia is fed by
such theories and movements as "national preference", "ethnic cleansing",
by exclusions and by a desire on the part of communities to turn inward
and reserve society's benefits in order to share them with people of the
same culture or the same level of development."(9). "Negrophobia is the
Wolfrum, The Committee on the Elimination of Racial Discrimination 493
this action is the "growing magnitude of the phenomena of racism, racial
discrimination, xenophobia and related intolerance in segments of
many societies and the consequences for migrant workers." Finally, the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities has suggested that a world conference should be held against
racism, racial and ethnic discrimination, xenophobia and other contemporary
forms of intolerance.I9
In general more effective and sustained measures at the national and
international level are necessary to fight all forms of racism and racial
discrimination. CERD is just one element within this struggle. It has to
adjust its working methods to the new challenges; first steps have been
taken to that extent.'
II. Composition
CERD is composed of eighteen independent experts who serve in their
personal capacity. The composition of the Committee reflects the
principle of equitable geographical distribution and the representation
of different forms of civilization as well as of principal legal systems.
When the Committee first assembled, five of its members where nationals
belonging to the Asian group, four were from Africa, two from
Latin America, five from Eastern Europe and two from Western
Europe. Since then the understanding has developed that four of the
members should come from Asia, four from Africa, three from Latin
America, three from Eastern Europe and four from Western Europe.
However, since this distribution is not mandatory the distribution of
seats may vary if there is disagreement in the regional groups about
whom to present. Such disagreement or lack of co-ordination has resulted
in the last sessions in a shift in the membership of the Committee
12
fear and rejection of Blacks... The African slave trade and colonization
have helped to forge racial stereotypes... " (9). anti-Semitism ... can be
considered to be one of the root causes of racial and religious hatred...
(10).
Recommendation 1994/2.
See report of CERD to the General Assembly Doc.A/48/14, 126-127; Report
of the Secretary-General, Efforts made by the United Nations Bodies
to prevent and combat Racism, Racial Discrimination, Xenophobia and related
Intolerance, Doc.E/CN.4/Sub.2/1994/12 of 25 July 1994.
Article 8 para.1 of the Convention.
Max Planck UNYB 3(1999)
to the disadvantage of the African group. At present, since the elections
in 1998, only one of the experts comes from Africa, which thus is
highly underrepresented, four from Asia, four from Latin America,
which is over represented, three from Eastern Europe and six from
Western Europe and Others, which is clearly over represented.
The experts have different professional backgrounds; some are active
or retired diplomats, others are civil servants and others are professors.
Over the years the share of experts with a professional academic
background has increased. This plurality of experience and in particular
the fact that the Committee is not only composed of lawyers has always
been regarded as a positive factor of the Committee.
Experts serve in their personal capacity, a principle which is reiterated
in the solemn declaration each expert has to make after his or her
election or re-election. Nevertheless, the independence of experts has
turned out to be a problematic issue in the past! and it still is. Since it is
a prerogative of Sates Parties to nominate experts for election they exercise
a certain influence upon the composition of the Committee. This
reflects that the Committee is not a court, but a body combating racial
discrimination by political rather than by legal means although the experts
have to make the same declaration as required of the judges of the
IC[. At the 49th Session the question of the independence of experts
was brought up from a particular point of view. Several experts challenged
the until then prevailing practice of the Committee that experts
should not participate in the discussion of their home State's reports
although this possibility would give an advantage to States Parties
whose nationals serve as experts. It has been argued that under the
terms of the Convention the members of the Committee are chosen not
only for their impartiality but also in consideration of geographical
distribution and the representation of different forms of civilization and
the principal legal systems. This, however, does not mean that experts
may act as agents of their States when discussing their reports or even
take part in formulating the respective Concluding Observations. This
See the examples given by Banton, see note 1, 100-101; K.J. Partsch, The
Committee on the Elimination of Racial Discrimination", in: P. Alston
(ed.), The United Nations and Human Rights: A Critical Appraisal, 1992,
339, (340/341) The Committee has refused two proposals that experts
unable to attend Committee sessions be allowed to send alternates and it
has refused to recognize a State Party's notification that an expert had resigned.
The Committee held that experts serving in their personal capacity
must personally submit their resignations.
Wolfrum, The Committee on the Elimination of Racial Discrimination 495
issue, which touches upon the self-understanding of the Committee and
the role of experts, was further discussed in the Committee at its 50th
Session. The Rapporteur of the Committee, Mr. Chigovera, submitted a
draft amendment to the Rules of Procedure of the Committee according
to which "as a general rule" experts would not participate in the deliberation
of the reports of the State Party of which they are nationals.
This draft met with the objection of several of the experts although the
majority endorsed it.
Apart from that the question of independence of experts occasionally
is invoked when an expert relies on sources, particularly from nongovernmental
organizations, which others regard as one-sided.
III. The Notion of the Term Discrimination and the
Practise of the Committee
All international human rights instruments dealing with the protection
of human rights either on the universal or the regional level contain a
provision prohibiting racial discrimination. Compared to the Convention
they either cover specific aspects only or are of a more general nature.
The first international treaty to deal with one particular aspect of racial
discrimination is the Convention on the Prevention and Punishment
of the Crime of Genocide of 1948. According to its article I
genocide means specific acts committed with the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group. However,
there are very few occasions in which the Genocide Convention
has been invoked on the international or national level, so far. This will
change with the intensification of the jurisprudence of the International
Criminal Tribunals for the prosecution of the crimes committed in former
Yugoslavia and Rwanda and the actual establishment of the International
Criminal Court.'' Since discrimination in respect of employment
and occupation is common, the ILO already in its Declaration of
Philadelphia affirmed in 1944 that all human beings, irrespective of race,
creed or sex, have the right to pursue both their material well-being and
their spiritual development in conditions of freedom and dignity, ot
economic security and equal opportunity. This principle was trans4
A. Zimmermann, "The Creation of a Permanent International Criminal
Count", Max Planck UNYB 2 (1998), 169 et seq.
496 Max Planck UNYB 3 (1999)
formed into an international treaty by ILO Convention No. 111- Concerning
Discrimination in Respect of Employment and Occupation of
15 June 1960. It prohibits any distinction, exclusion or preference made
on the basis of race, colour, sex, religion, political opinion, national extraction
or social origin which has the effect of nullifying or impairing
equality of opportunity or treatment in employment or occupation.
The Convention against Discrimination in Education adopted on 14
December 1960 by the General Conference of UNESCO follows the
approach adopted by the ILO Convention No. 111 and prohibits any
discrimination based on race, colour, sex, language, economic condition
or birth which has the purpose or effect of nullifying or impairing
equality of treatment in education. Further specific aspects of racial discrimination
are dealt with in the International Convention on the Suppression
and Punishment of the Crime of Apartheid, and in the International
Convention against Apartheid in Sports. Finally, the prohibition
of racial discrimination is enshrined in article 3 of the Convention
relating to the Status of Stateless Persons, 1954; article 3 of the Convention
relating to the Status of Refugees, 1950; article 1 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment; article 2 of the Convention on the Rights of the Child,
1989; and in article 85, para. 4, of the Additional Protocol (Protocol I)
to the Geneva Conventions of 12 August 1949 on the Protection of
Victims of International Armed Conflicts, 1977.
The two Human Rights Covenants of 1966 follow a more general
approach. They copied the catalogue of the Universal Declaration verbatim;
States Parties to the Covenants undertake to guarantee that the
rights enunciated in the Covenants will be exercised without discrimination
of any kind as to race, colour, sex, language etc.
The Convention goes beyond the realm of most other human rights
treaties since it not only obliges States Parties to refrain from racial discrimination
(article 2 para.1 lit.(a),(b), article 3, article 5 lit.(a),(b),(c),(d)
of the Convention) but also to take positive steps on the legislative and
administrative level to ensure that the society will develop in a manner
that it is free from racial discrimination or related practices. This is not
always correctly perceived by States Parties when submitting their reports.
It is not enough to indicate that racial discrimination is prohibited
by law or even by the Constitution. They have further to indicate
that individuals from various ethnic groups in fact enjoy the same rights
and equally participate in the economic, social and cultural development
of a State Party, that there is no incitement to racial discrimination
Wolfrum, The Committee on the Elimination of Racial Discrimination 497
and that individuals or groups are protected against racial discrimination
by society.
The core provision of the Convention is article I para.1 defining the
notion of racial discrimination; paras 2 and 3 of the same article define
cases when the Convention does not apply. Para. 4 deals with temporary
measures and in that respect overlaps with article 2 para. 2, of the
Convention. The Committee has so far not made an attempt to further
specify what is meant by the notion of race as referred to in article I
para.1, of the Convention ("... any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin...").
I' In general, it was felt that there was no need to do so since
the terms of reference in article 1 para.1, of the Convention are broad
enough to cover all situations the Convention attempts to eliminate. In
particular the Committee can resort to descent or national or ethnic
origin. However, occasionally States Parties questioned whether the
Convention was applicable to them at all or whether it was appropriate
to refer to a particular group as falling under the scope of the Convention.
For example, Mr. Lamptey asserted that Zairians were all of the
same stock and there existed no racial or ethnic differences in that State
Party.I' This approach was rejected by the majority of the Committee
which looked upon ethnic diversity as a means of enriching cultural life.
Developments in 1998 drastically proved how wrong it was to accept
the approach advanced by the government of Zaire that the population
of this country was ethnically homogenous. The same approach has
been taken by the representative of Burundi at the S0th, by Mexico at
the 49th Session, for example, and by other States Parties particularly
from Latin America and Asia. They all alleged that their population was
mixed and that one could not speak of differences as of race. In particular
the representative of Burundi held that the differentiation between
Hutus and Tutsi was introduced by the colonial powers and did
not reflect the realities of life. When India stated in its report! that the
caste system did not fall under the jurisdiction of CERD, the majority
of experts argued that since one became member of a caste by birth this
was a matter of descent and therefore fell under article 1 para.1, of the
Convention. Iraq has at the 50th Session objected to questions con1I5
Banton, see note 1, 76 et seq. makes an attempt to give some sociological
clarification to the notion of race.
16 See Banton, see note 1, 251.
I CERD/C/299/Add. 3.
Max Planck UNYB 3 (1999)
cerning the Arabs living in the marshes since they were Arabs and belonged
to the majority of the population.
The Committee has in its majority never accepted such statements.
It has referred to the broad wording of article 1 para.1 of the Convention
and its General Recommendation VIII (1990) according to which
individuals are generally identified as being members of a particular racial
or ethnic group by way of self-identification.Is Thus they do not
depend upon objective criteria. A group may also be identified as such
by the dominant population in a country although it does not regard itself
as being ethnically or racially different. Apart from that reference
has been made in this context by the Committee to linguistic differences
or to the affiliation to a distinct religion serving as indicators for
the existence of particular groups.
States Parties claiming ethnic conformity or denying the existence of
particular ethnic groups often do so in order not to endanger a national
policy of integration. Such integration may often take the form of enforced
assimilation to a dominant group or groups which would violate
the objective of the Convention.
As far as indigenous peoples are concerned many States of Larin
America now rediscover the cultural heritage of their indigenous
populations. CERD has frequently emphasized that it is particularly
concerned with their status and prospect of development. At its 51st
Session (August 1997) the Committee has adopted a General Recommendation
on Indigenous Peoples adding new elements concerning
their protection. Its operative part reads:
,, 'The Committee calls in particular upon States parties to:
a. recognize and respect indigenous distinct culture, history, language
and way of life as an enrichment of the State's cultural
identity and to promote its preservation;
b. ensure that members of indigenous peoples are free and equal in
dignity and rights and free from any discrimination, in particular
that based on indigenous origin or identity;
c. provide indigenous peoples with conditions allowing for a sustainable
economic and social development compatible with
their cultural characteristics;
d. ensure that members of indigenous peoples have equal rights in
respect of effective participation in public life and that no deciI8
HR/GEN//Rev.2, 1996, 92.
Wolfrum, The Committee on the Elimination of Racial Discrimination 499
sions directly relating to their rights and interests are taken
without their informed consent;
e. ensure that indigenous communities can exercise their rights to
practise and revitalize their cultural traditions and customs and
to preserve and to practise their languages.
The Committee especially calls upon States Parties to recognize and
protect the rights of indigenous peoples to own, develop, control
and use their communal lands, territories and resources, and, where
they have been deprived of their lands and territories traditionally
owned or otherwise inhabited or used without their free and informed
consent, to take steps to return those lands and territories.
Only when this is for factual reasons not possible, the right to restitution
should be substituted by the right to just, fair and prompt
compensation. Such compensation should as far as possible take the
form of lands and territories.
The Committee further calls upon States Parties with indigenous
peoples in their territories to include in their periodic reports full
information on the situation of such peoples, taking into account all
relevant provisions of the Convention.
Although religious discrimination does not fall under the purview of
the Convention, CERD has dealt with it arguing that a particular religion
may be an essential element in forming a particular ethnic group.
This, however, is a very sensitive issue on which the opinions of the experts
differ. Whereas the often discriminatory treatment of Muslims in
European countries is frequently referred to the same experts object to
questions concerning the status of Christians in Muslim States. There
exists however some justification for the different approaches. Muslims
in Europe are by their majority immigrants or descendents of immigrants
whereas Christians in Iraq, Egypt etc. have always been nationals
of these States.
As already stated the Convention prohibits not only intentional but
also unintentional discrimination. CERD adopted a General Recommendation
to emphasize this point."? According to it a distinction is
contrary to the Convention if it either has the purpose or the effect of
impairing particular rights and freedoms. CERD stated that a differentiation
of treatment would not constitute discrimination if the criteria
for such differentiation, judged against the objectives and purposes of
19 General Recommendation XIV (1993), HR/GEN/I/Rev.2, 1996, 95.
500 Max Planck UNYB 3 (1999)
the Convention, were legitimate or fell within the scope of article I
para.4, of the Convention.
The Committee has frequently dealt with the treatment of noncitizens
although according to article I para.2 of the Convention it does
not apply to "distinctions, exclusions, restrictions or preferences" between
citizens and non-citizens. However, the Committee has held that
a State Party may not discriminate against any particular nationality.
Experts have questioned in this context the special treatment citizens
from a European State receive in other European States and the special
treatment given in some Gulf States to citizens from other Arab countries.
More generally the Committee is concerned with the nonapplication
of civil, economic, social and cultural rights to non-citizens
although such application is provided for in international human rights
instruments. Ia General Recommendation XI (1993) CERD has emphasized
that at least the reporting obligation applies to non-citizens."
It has further emphasized that article 1 para.2 of the Convention must
not detract from rights and freedoms granted to non-citizens in other
international instruments. In spite of this interpretation article 1 para. 2
of the Convention limits the possibilities of the Committee to reset efficiently
against xenophobic tendencies and policies. CERD still has to
develop a working method concerning the elimination of xenophobia
and related phenomena.
IV. States Parties Obligations
According to article I para.1 of the Convention only those discriminations
are prohibited which impair the enjoyment of human rights in a
field of public life. The Committee had a long discussion on this issue.
It finally agreed that political, economic, social and cultural spheres of
life are always to be considered to come within the scope of public life.
A privatization of schools, for example, would not exempt them from
the reach of the Convention. Nevertheless, more work is to be done
on this. For example, as far as the right to housing is concerned (article
5 lit.(e)(iii) of the Convention) does this mean that every landlord is
under an obligation to accept any potential tenant regardless of race or
20 R. Wolfrum, International Law on Migration Reconsidered Under the
Challenge of New Population Movements", GYIL 38 (1995), 191 et seq.
HRI/GEN//Rev.2, 1996, 94.
2 Banton, see note 1, 195.
Wolfrum, The Committee on the Elimination of Racial Discrimination 501
ethnic or national origin? The majority of the Committee may argue
into this direction, the implementation of such interpretation will however
meet the resistance of some States Parties.
According to para.1, four types of acts may be considered discriminatory,
namely distinctions, exclusions, restrictions or preferences.
They shall be considered as discriminatory in the meaning of the Convention
if they are based on race, or colour, or descent, or national origin,
or ethnic origin. Further, such acts must have the purpose of nullifying
or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms or have such an
effect.
Under the Convention States Parties have various obligations. Such
obligations differ widely as to their content. Generally speaking States
Parties are under an obligation to eliminate racial discrimination as defined
by the Convention. This requires the State Party to undertake
four different actions, to pursue a policy of non-discrimination? and to
undertake repressive, remedial or educational action.
Except for particular issues the Convention does not specify how
this objective is to be achieved. However, States Parties are under an
obligation to exhaust all their possibilities to achieve this objective, including
the enactment of specific legislation. For that reason the Committee
endorses the enactment of a specific racial discrimination act although
such an act is not mandatory under the Convention. Whether a
State Party implements the Convention through public law or private
law will very much depend upon the national legal system. However,
the implementation of article 4 of the Convention requires specific legislative
action namely the issuing of criminal law. Often experts inquire
whether the Convention has been incorporated into national law and
may be invoked before national courts. Such question may be misleading.
The incorporation of the Convention into domestic law does not
suffice to meet the obligations under article 4 of the Convention. In
consequence, the Committee has always rejected the approach of some
States Parties that such incorporation would render the adoption of the
required criminal law rules unnecessary. Further the question concerning
the incorporation of the Convention does not adequately reflect
that different means that exist of how to ensure the effective application
For the drafting history see Lerner, see note 1, 28 et seq.
Occasionally one expert insists that such policy should find its manifestation
in a public document. However, such obligation has no foundation in
the Convention.
502 Max Planck UNYB 3 (1999)
of the Convention in national law as required by international treaty
law. The verbal incorporation of an international agreement into national
law is but one of the means available.
According to article 2 of the Convention States Parties are under an
obligation to condemn racial discrimination and to pursue a policy of
eliminating racial discrimination in all its forms. Article 2 para.1 lit.(a)(
e), of the Convention contains further specification to this end. Article
3 of the Convention provides that States Parties particularly condemn
racial segregation and apartheid and undertake to prevent, prohibit and
eradicate all practices of this nature in territories under their jurisdiction.
The Committee drafted a General Recommendation in 1995 to
advise States Parties that the scope of article 3 of the Convention was
not restricted to measures directed against apartheid and that segregation
could arise from State policy as well as other sources. Further, the
General Recommendation emphasizes that article 3 of the Convention
covers the action of segregation as well as the condition of being segregated.
Article 4 obliges States Parties to penalize certain forms of racial
discrimination. In saying that certain acts shall be punishable, the
Convention requires sanctions under criminal law. Actions under other
articles of the Convention can be dealt with under other branches of
law. CERD has always focused on this obligation; it has also emphasized
that article 4 of the Convention restricts the freedom of expression
and association.7 The question is whether States Parties may invoke
the protection of the freedom of expression and association to
avoid the implementation of the Convention?" or whether States Parties
must strike a balance between these freedoms and their duties under the
Convention.' This is a matter of controversy in CERD.
25
26
28
Banton, see note 1, 201/202.
R. Wolfrum, Das Verbot der Rassendiskriminierung im Spannungsfeld
zwischen dem Schutz individueller Freiheitsrechte und der Verpflichtung
des einzelnen im Allgemeininteresse", in: E. Denninger et al. (eds), Festschrift
Peter Schneider, 1990, 515.
K.J. Partsch, "Racial Speech and Human Rights: Article 4 of the Convention
on the Elimination of All Forms of Racial Discrimination", in: S. Coliver
(ed.), Striking a Balance: Hate Speech, Freedom of Expression and
Non-Discrimination, 1992, 24; Banton, see note 1, 202 et seq.
UN Study, Positive Measures Designed to Eradicate all Incitement to, or
Acts of, Racial Discrimination, CERD/2, 1986.
Partsch, see note 27, 24.
Wolfrum, The Committee on the Elimination of Racial Discrimination 503
Article 5 of the Convention lists the human rights to be guaranteed
without discrimination. Almost all of these rights are covered by the
two Covenants, hence the jurisdictional competences of the three treaty
bodies overlap. Although CERD may deal with the enjoyment of civil
and political rights as well as economic, social and cultural rights, it is
restricted in this respect since it may do so only under the aspect of intentional
or de facto discrimination. However, in this regard it has to
play an important role particularly as far as the implementation of economic
and social rights against a private counterpart are concerned. The
rights to work, to free choice of employment etc. (article 5 lit.(e(i) of
the Convention), for example, are amongst the most important economic
rights. They require enforcement against private as well as public
employers. Article 5 lit.(e)(iii) of the Convention provides that any
resident in a country shall enjoy any right to housing without discrimination
as to race or ethnic origin. The implementation of these rights
raises as already mentioned problems in practice. Although States Parties
often provide for guarantees against dismissal of work on racial
motives there is less protection, if any at all, against the denial of housing
or work by private landlords or employers.
In the practice of the Committee the border line between criticizing
discriminatory practices or the human rights situation in a given State
Party is not always fully respected. Some members have taken the opporunity
to inquire about the implementation of human rights standards
in general. In 1996 CERD adopted a General Recommendation
interpreting its functions under article 5 of the Convention.
Article 6 obliges States Parties to establish a judicial system which
effectively protects against any act of racial discrimination. This provision
serves as a basis for CERD to discuss the judicial system of States
Parties. This is, however, justifiable. An effective protection against racial
discrimination requires the availability of judicial recourse. In respect
of non-dominant groups it further requires that they may address
the judges in their language or, at least, that the State Party provides for
interpretation. The Committee equally inquires as to whether judges
receive a particular training in r e spect of such groups. Finally, in dealing
with an individual complaint from the Netherlands the Committee has
indicated that the obligations under the Convention may have an impact
upon the criminal procedure of States Parties. In effect the Committee
did not accept that prosecution might exercise its discretionary
power in a manner that in practice would condone racist offences which
0 See above.
504 Max Planck UNYB 3 (1999)
the State Party is obliged to prosecute under article 4 of the Convention.''
Finally, article 7 of the Convention requires States Parties to adopt
measures in the field of teaching, education, culture and information
which combat racial prejudices and promote understanding and tolerance.
The reports of States Parties on that aspect are very often without
substance. In this respect a methodology of CERD still needs to be developed.
To elaborate an approach to this end may be CERD's contribution
for the Third Decade. In its 14th periodic report? Iceland has
provided for some rather unprecedented information concerning the
implementation of article 7 of the Convention. The measures taken
range from the wide publication of international human rights treaties,
particularly in schools, over the training of immigrant children in their
mother tongue to courses and programs in schools designed to increase
tolerance and understanding for foreigners.
Unlike both Covenants, the Convention emphasizes the duties of
States Parties rather than the rights of individuals or groups. Nevertheless,
article 14 of the Convention clearly indicates that individuals or
groups enjoy rights under the Convention; otherwise the individual
complaint procedure established by the Convention would be meaningless.
Apart from those obligations referred to so far States Parties are in
accordance with article 9 of the Convention under the obligation to
regularly report on the implementation of the Convention. The basic
duty on reporting is expressed in article 9 para.1 of the Convention.
The wording of this provision contains just the bare minimum on the
content of reports; it is different from the one in other human rights
treaties which were adopted later. The Convention additionally encourages
States Parties also to report about factors and difficulties affecting
the degree of fulfillment of obligations". According to the International
Covenant on Civil and Political Rights it is an obligation to provide for
such information. However, in practice these differences in the reporting
obligations have little impact.' The intensity of the monitoring efCase
4/1991,L.K. v. The Netherlands.
CERD/C299/Add.4, 29 April 1996.
Parsch, see note 13, 341.
V. Dimitrijevic, "The monitoring of human rights and the prevention of
human rights violations through reporting procedures", in: A. Bloed, L.
Leicht, M. Nowak, A. Ross (eds), Monitoring Human Rights in Europe,
1993, 1 et seq., (12)
Wolfrum, The Committee on the Elimination of Racial Discrimination 505
feet of reports depends nearly entirely upon depth of the oral exchange
of views. The quality of the dialogue between the State Party concerned
again is a matter of the preparedness of the State Party to engage in such
a dialogue, the preparedness of the Committee for the particular State
Party and the time available for the dialogue.
V. Reporting System
The Committee concentrates to a higher degree than other treaty bodies
on the assessment of periodic reports of States Parties. Since 1996 it has
dealt with more than ten reports per session. Other treaty bodies such
as the Human Rights Committee or the Committee on Economic, Social
and Cultural Rights only consider five each. Nevertheless, the time
spent on each report is not much less than in these two bodies, namely
two meetings, occasionally one meeting and a half. This means that
most of its time the Committee is engaged in a dialogue with States
Parties or in formulating Concluding Observations. The Committee
can only do so since it has very few individual complaints to deal
with,> and refrains from engaging itself in other activities such as the
preparation of the Third Decade. Equally, very little time is devoted to
the drafting of General Recommendations. Finally, no time at all is
spent on the preparation for future sessions, This is all left to the country
Rapporteurs. In fact, to assess so many reports in a three week session
relies very much upon the introduction of the country Rapporteur
system. It has enabled the Committee to make an indepth study
which again establishes the basis for the dialogue with the State Party
concerned. However, the SOth Session has shown that dealing with
more than 10 periodic reports exceeds the possibilities of the Committee
and, in particular, the quality of the dialogue with the State Parties.
Apart from that too little time is left for dealing with reports under the
urgent procedure.
At the 50th Session not even half a meeting was spent on individual complaints,
the time used for that purpose at the 5rd Session was only marginally
longer.
Reports of Country Rapporteurs take between 0 minutes to one hour or
more. Attempts have been made to restrict the length of the statements of
Country Rapporteurs particularly by those who question the merits of
such reports.
506 Max Planck UNYB 3(1999)
In dealing with the reports submitted by States Parties, CERD had
to address several issues over the years and, by gradually deciding upon
them, further developed and refined the reporting system. These issues
included the question whether a State Party should be present when its
own report is discussed; how to deal with overdue reports; the content
of reports; the appointment of country Rapporteurs; the information
which may be used by the experts when considering the reports of
States Parties and the question whether CERD should formulate Concluding
Observations after having finished the examination of a report.
These issues are not just of a technical nature. The Committee's approach
in addressing them and thereby further developing the reporting
system reflects and reveals changes in CERD's perception about the
objectives pursued through the reporting system.
The Convention and the Rules of Procedure give little indication
about the procedure to be followed by CERD in examining reports.
Over the years CERD has developed the following practice' The examination
of reports usually begins with an introductory statement by
the representative of the reporting State. This introduction is followed
by the presentation of the country Rapporteur of the Committee and
the questions asked or suggestions and opinions voiced by the experts.
After the experts have completed their observations and questioning,
the State's representative is once again invited to take the floor. This
may be followed by another round of questions and remarks from the
experts and a reply from the representative of the State Party concerned.
The examination of each report is concluded by the Concluding
Observations which are formulated in the absence of the representative
of the reporting State although in public meeting. The development of
this procedure was undertaken gradually. Some of its important elements
met with resistance and it was only possible to introduce them
after considerable debate.
The decision to allow representatives of States Parties to be present
when their reports are discussed was only taken upon recommendation
of the General Assembly. Only this decision has made it possible to
establish a constructive dialogue between the experts and the represen7
See in this respect the revised guidelines on reporting adopted by CERD
on 9 April 1980, Doc.A/35/18 (1980) Annex IV as well as the consolidated
guidelines for the initial part of the reports of States Parties as suggested by
the Chairpersons of the Treaty Bodies Doc.A/45/636, at 18.
8 A/RES/2783 (XXVI) of 6 December 1971; Rule 6#; for details see Parsch,
see note 13, 354 et seq.
Wolfrum, The Committee on the Elimination of Racial Discrimination 507
tatives of States Parties. Hence, it has to be regarded as one of the most
important innovations concerning the working methods of the Committee.
In drafting its Rules of Procedure the Human Rights Committee
included a similar provision for having States' parties representatives
attend its meetings.
The introduction of the system of country Rapporteurs, already referred
to, which was decided upon in 1988 represents another major
change in the procedure of CERD. Proposals for appointing country
Rapporteurs were first advanced in 1974 and repeated at a closed meeting
in 1986. CERD's annual report for 1988 in paras. 21 and 24 lit.(b)
described the responsibilities of a country Rapporteur as being to prepare
"a thorough study and evaluation of each State report, to prepare a
comprehensive list of questions to put to the representatives of the reporting
State and to lead the discussion in the Committee". Later, the
Chairpersons meeting recommended"? that treaty bodies should consider
the appointment of Rapporteurs.
CERD reviewed its country Rapporteur system as it stood in 1989.
Its annual report, at paras. 24 and 26 lit.(d), indicated that the introduction
of the system had been successful.'
The country Rapporteur procedure has facilitated a division of labour
between members of the Committee. Apart from that, under the
new procedure the Committee has often experienced commentaries of a
quality that was rarely achieved under the previous procedure.
The Convention does not give clear guidance as to how CERD may
react either to reports which do not meet the reporting requirements of
the Convention or the Guidelines, or when a State Party has been
found to have not fully met its obligations concerning the implementation
of the Convention. The Committee has changed its policy in this
respect over the years.
First of all the Convention does not specify which information the
experts may use to assess the reports. Over a long period, CERD did
not accept information provided by non-governmental organizations or
by the mass media. This policy, however, has been changed following
the example of other human rights treaty bodies.
9 CERD/SR. 771.
40 Doc.A/44/98, 17 para. 57 and 24 para. 91.
All but three experts have in the past acted as country Rapporteurs.
Human Rights Committee (ed.), Manual on Human Rights Reporting,
1991, 121.
508 Max Planck UNYB 3 (1999)
As to the reaction to reports following its examination, the Convention
does not provide the Committee with the power to reject a report.
It may only "request further information" (article 9 para.1) and
may make "suggestions and general recommendations" (article 9 para.
2).
In accordance with its Rules of Procedure, CERD evaluates each
State's report with respect to the formal reporting guidelines, taking
into account that State's previous reports. The members seek to determine:
whether the information requested in earlier reports has been delivered,
whether information missing in previous reports is included in
the report under consideration, whether questions initially incompletely
answered have now been responded to fully and whether new
developments in the reporting country give rise to a need for additional
information.
During its early years the Committee would conclude its examination
of reports by qualifying them as satisfactory or unsatisfactory
without indicating whether unsatisfactory reports lacked sufficient information
or whether the reporting State had failed to comply with its
substantive obligations under the Convention. In 1972, the Committee
amended its Rules of Procedure in order to distinguish more clearly
the two phases of its evaluation.
In its recent practice CERD has asked for additional information
also in cases where it felt that a State Party had not fully discharged the
obligations under the Convention, thus closing again the distinction
between the two stages of examining reports. In this respect, requesting
further information was regarded as a kind of verdict concerning the
situation in the given State Party.
Another means for CERD to express its opinion upon the situation
in a given State Party are Concluding Observations. The Committee at
its 39th Session (March 1991) decided that the adoption of the country
Rapporteur procedure enabled it to go further" towards the adoption
of a common statement embodying a collective opinion. Since 1992 the
procedure for drafting these observations is that the country Rapporteur
is asked to circulate a draft within the Committee, to take account
of the comments of colleagues, and then to present at a later session a
draft that could be adopted by consensus. However, the possibility of a
Rule 67.
The previous system was criticized in the Alston Report (Doc.A/44/668,
para. 134).
Wolfrum, The Committee on the Elimination of Racial Discrimination 509
vote is not excluded. Initially the discussion of the Concluding Observations
was undertaken in a private meeting. Since 1996 they have been
discussed in public meeting. This has had the effect that experts refrained
from participating in the deliberation of the Concluding Observations
on those States Parties they are nationals of. This effect was intended
by changing the rules on the deliberation of the Concluding
Observations.
Some of the Concluding Observations adopted since then have
made reference to particular General Recommendations of the Committee
and at a later stage it inquired why the State Party concerned had
not responded thereto. This raises the question as to the status of General
Recommendations. They are not binding upon States Parties since
the Committee lacks legislative power. However, they are binding the
experts amongst themselves as to the interpretation and application of
the Convention. As such they give an indication to States Parties how
the Committee will look upon certain aspects of the Convention.
In recent years all human rights treaty bodies have encountered the
problem that States parties do not meet their reporting requirements.
This endangers the monitoring functions of the human rights treaty
bodies. CERD decided at its 39th Session (March 1991) to review the
implementation of the Convention in those States Parties whose periodic
reports were excessively overdue. The annual report for that year
states that in the case of reports excessively overdue, the Committee
agreed that this review would be based upon the last reports submitted
by the State Party concerned and their consideration by the Committee".
So far, the practice of CERD has turned out to be quite successful.
In some cases the States Parties concerned have taken the opportunity
to submit their report. Apart from that an increasing number of States
Parties have participated in the review and have thus resumed the dialogue
with the Committee.
45 See Report of the Secretary-General, Improving the Operation of the Human
Rights Treaty Bodies, HRI/MC/1996/2, 10 et seq. and the report by P
Alston, Effective Functioning of Bodies Established Pursuant to United
Nations Human Rights Instruments, Doc.E/CN.4/1997/74,7 March 1997,
para. 48 et seq. The figures given on CERD and in particular the conclusions
drawn from such figures do not meet with reality. According to Alton
it would take CERD 24.3 years to deal with all outstanding reports.
However, if States Parties resume the dialogue after, for example, ten years,
they submit five reports in one. Nevertheless the backlog of reports is significant.
510 Max Planck UNYB 3 (1999)
At its 47th Session the General Assembly in 1992 recommended that
other treaty bodies should adopt measures similar to the practice of
CERD to proceed with the examination of the situation in States Parties
whose reports were long overdue, on the basis of existing information.
It was further recommended that each treaty body should follow,
as a last resort and to the extent appropriate, the practice of scheduling
for consideration the situation in States Parties that have consistently
failed to report or whose reports are long overdue. This recommendation
was based upon the consideration that a persistent and long-term
failure to report should not result in the State Party concerned being
immune from supervision, while others which have reported are subject
to careful monitoring."
Assessing the reporting system it has to be stated that it has undergone
significant changes. In introducing such changes CERD has altered
the objective of the reporting system. At the beginning when representatives
of States Parties were not allowed to orally present the reports
the Committee was not in a position to engage in a dialogue with
the respective State Party. It could only collect some information and
on this basis make General Recommendations to the General Assembly
concerning the elimination of racial discrimination. Hence, in this early
period the reporting system only rudimentarily provided for means to
monitor the implementation of the Convention, higher emphasis being
placed upon CERD as an expert body intended to provide the General
Assembly with information that would enable the latter to discuss the
elimination of racial discrimination. This element of the reporting system
has receded into the background, as reflected by the fact that the
topic "elimination of racial discrimination" no longer plays a prominent
role in the deliberations of the General Assembly. Instead, by involving
representatives of the reporting States, allowing CERD to use
information other than that provided by the reporting State Party and
by formulating "Concluding Observations" the Committee focuses
more heavily upon the monitoring of the situation in the States Parties.
Nevertheless, CERD does not work and is not intended to work as a
court. Quite frequently experts point out that they are primarily interested
in establishing and upholding a dialogue with the States Parties.
This is why considerable effort is undertaken to convince States Parties
whose reports are overdue to resume cooperation with the Committee.
Asking for further information has to be seen from this point of view. It
is to be understood as the desire from the side of the Committee to en46
A/RES/47/111 of 16 December 1992.
Wolfrum, The Committee on the Elimination of Racial Discrimination 511
hance and intensify the dialogue with those States Parties which face
problems in the full implementation of the Convention.
VI. Inter-State Complaints
The practice of States Parties concerning inter-State complaints is unsatisfactory.
When dealing with the reports of some States Parties
bordering former Yugoslavia, the respective representatives have been
asked by members of the Committee why no attempt had been made to
initiate a procedure under article 11. Equally the representative of Iraq
was recommended to consider this procedure when he claimed that
northern Iraq was under the influence of foreign powers and hence he
could not report about the implementation of the Convention in this
area. The same approach was taken vis-~-vis Mexico when it complained
about the discrimination of Mexicans in the United States. The
answer was evasive. Obviously there is a reluctance to resort to such
procedure although it has been used under the European Convention
for the Protection of Human Rights and Fundamental Freedoms. Since
States did not hesitate, recently, in cases of grave and persistent violations
of human rights to involve the Security Council, the reluctance to
use the inter-State complaint procedure cannot result from an excessive
respect for the sovereignty of the States concerned. It may be rather the
feeling that a quasi-judicial procedure is hardly suited to provide a solution
in cases where political decisions are called for. Apart from that
the procedure of article 11 of the Convention does not enshrine any
enforcement mechanism; it may seem questionable to invoke a lengthy
procedure the result of which may only be a recommendation for the
amicable solution of the dispute (article 13 of the Convention).
VII. Individual Complaints
Within the United Nations human rights system three treaty-based
procedures exist providing for the possibility for individuals to submit
petitions directly to the respective supervisory committees. These are
the optional article 14 of the Convention, the Optional Protocol to the
47 previous article 9 reports have contained various forms of disguised interstate
disputes, see T. Buergenthal, "Implementing the UN-Racial Convention",
Tex. Ir'lLJ. 12 (1977), 202 et seq.
512 Max Planck UNYB 3 (1999)
International Covenant on Civil and Political Rights and the optional
article 22 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. The two former procedures
require the specific acceptance of ten States and the latter of five States
to become effective. Receiving these acceptances took much longer for
article 14 of the Convention than for the Protocol. As at 10 July 1998
25 of the 159 States Parties to the Convention have made the declaration
envisaged in article 14 recognizing the competence of the Committee
to receive and consider communications from individuals who
claim that the government has not provided them with the required
protection. Although optional article 14 entered into force in 1982, only
nine communications have so far reached the Committee.
Article 14 of the Convention differs from the Protocol and the
Convention against Torture in that it provides that groups of individuals
as well as individuals may present communications to the Committee.
So far, no group action has been received. All the three procedures
require the alleged victim to present to the Committee prima facie evidence
of personal involvement which excludes the procedure being
used as actio popularie.8
Examining such individual complaints should constitute an important
part of the work of human rights treaty bodies. This, however, will
only be the case if more States Parties accept the respective procedure
and the information on the availability of such procedure is disseminated
widely in the States Parties. For example, Ecuador, Peru, the Russian
Federation and Uruguay have made the Declaration recognizing
the competence of CERD under article 14 of the Convention. However,
no communication has been transmitted yet from any of these
States Parties. So far, individual complaints came from the Netherlands,
Denmark, Australia, Finland and Sweden. This does not reflect the human
rights situation prevailing in these States. The limited acceptance of
this procedure and the insufficient information about its availability
may be the reasons why the procedure has not been used more frequently.
Several members of the Committee routinely encourage States
Parties to adhere to this procedure.
The Committee simply has a limited practice with respect to individual
complaints. It applies in most cases a two-stages procedure, first
48 However, the Human Rights Committee did agree to consider communications
submitted on behalf of alleged victims by others, even without
formal mandate or power of attorney, when it appeared that the victim was
unable to submit the communication himself.
Wolfrum, The Committee on the Elimination of Racial Discrimination 513
establishing admissibility and thereafter considering the merits. This
makes the procedure a slow one, cases are pending for too long which
may be considered to be a denial of justice. In two cases the Committee
has asked the States Party concerned to report about the admissibility
as well as on the merits (Australia and Sweden). States Parties and some
of the experts are reluctant to accept such a procedure since they consider
(wrongly) that the decision to have a case admitted already carries
some verdict.
VIII. Preventive Action, Including Early Warning and
Urgent Procedure
CERD at its 43rd Session adopted a paper on preventive action, including
early warning and urgent procedures as a guide for its future
work concerning possible measures to prevent and more effectively respond
to violations of the Convention." Under the same title a permanent
item was included in the agenda of the Committee's future sessions.
Successive annual reports of the Committee to the SecretaryGeneral
of the United Nations summarize the working paper.
Similar steps have been taken and implemented by the Human
Rights Committee, the Committee on Economic, Social and Cultural
Rights and the Committee on the Rights of the Child. However, as far
as conceptuality and the implementation of such procedure are concerned,
CERD has developed the most systematic and far-reaching
practice.'
Like the other human rights treaty bodies the Committee was particularly
induced to establish such a procedure by the events in former
Yugoslavia and in the Great Lakes region of Central Africa. The members
of the Committee felt that the regular monitoring of the human
rights situation in States Parties through the reporting system had
49 This was encouraged by the General Assembly with the Agenda for PeaceAIRES/
47/120 of 18 December 1992.
50 Doc.A/49/18, para. 19; Doc.A/50/18, para. 22; Doc.A/51/18, para. 26. For
further details see Banton, see note 1, 161 et seq.
51 M. O'Flaherty, Human Rights and the UN: Practice Before the Treaty
Bodies, 1996, 103 et seq.; Banton, see note 1, 161 et seq.
Max Planck UNYB 3 (1999)
proven to be inadequate to prevent the occurrence or recurrence of
such man-made disasters.9 58
Preventive actions of CERD shall include early warning measures to
address existing structural problems which might escalate into conflicts.
Such a situation calling for early warning exists, in the view of the
Committee, inter alia when the national implementation procedures are
inadequate or there exists the pattern of escalating racial hatred and
violence, or racist propaganda or appeals to racial intolerance by persons,
groups or organizations, notably by elected or other officials. To
formulate such early warning CERD will have to make full use of its
sources of information and of its expert capacity to assess them.
The criterion for initiating an urgent procedure, according to the decision
of CERD, is the presence of a pattern of massive or persistent racial
discrimination. In nearly all cases dealt with by the Committee, so
far, one expert took the initiative and made a reasoned suggestion to
have a particular situation dealt with under this procedure. In all cases
such a suggestion was accepted after a brief discussion.
The reactions in its preventive function and in response to proulems
requiring immediate attention are similar although under the early
52 T van Boven, Prevention, Early-Warning and Urgent Procedures: A New
Approach by the Committee on the Elimination of Racial Discrimination,
in: E. Denters, N.Schrijver (eds), Reflections on International Law from the
Low Countries in Honour of Pal de Waar, 1998,165 et seq.
When in 1993 the Committee adopted its prevention, early-warning and
urgent procedure its Chairman justified such decision in its covering letter
to the annual report to the Secretary-General of the United Nations in the
following terms: "The forms of racial discrimination which in the 196¥
were regarded as most abhorrent were those of discrimination by whites
against blacks. Racial discrimination was frequently described as caused by
the dissemination of doctrines of racial superiority by the institutions of
colonial rule and by policies of racist regimes. The international community
could counter these abuses by political means and in this way racial
discrimination could be eliminated." The letter continued to say: In 1993
we contemplate the success of policies initiated in the 1960s. The struggle
against colonial rule and racist regimes has been successful even if the consequences
of apartheid will continue to give trouble for a long time. New
challenges started to emerge at the end of the 1980s with the disintegration
of some of the larger political structures, particularly in eastern Europe,
and the weakening of some structures in other regions ... racial or ethnic
conflicts are appearing in areas previously characterized by tolerance..."
(Report of the Committee on the Elimination of Racial Discrimination,
1993, Doc.A/48/18, 6).
Wolfrum, The Committee on the Elimination of Racial Discrimination 515
warning procedure CERD will first exhaust its advisory functions vis~-
vis the respective State Party. The Committee may address its concern,
along with recommendations for action, to all or any of the following:
the State Party concerned; the Special Rapporteur established
under a Commission on Human Rights resolution; the SecretaryGeneral;
and all other human rights bodies. The information addressed
to the Secretary-General may in the case of urgent procedures include a
recommendation to bring the matter to the attention of the Security
Council. In the case of urgent procedures CERD may designate a Special
Rapporteur.
As already indicated the attempt to improve the functions of the
Committee, as far as its response to serious, massive or persistent patterns
of racial discrimination is concerned or the upcoming threat
thereof, was very much influenced by the situation in the former Yugoslavia.
In consequence Bosnia Herzegovina, Croatia and the Federal
Republic of Yugoslavia (Serbia and Montenegro) belonged to the States
Parties that were placed under the early-warning procedure. Others
were or still are Rwanda and Burundi, Papua New Guinea, with regard
to the serious violations of human rights in Bougainville, Mexico with
regard to the ethnic conflict involving the indigenous population of the
Chiapas, the Russian Federation concerning the massive loss of life in
the Republic of Chechnya and Liberia, Afghanistan as well as Zaire/the
Democratic Republic of Congo concerning the situation brought about
by civil war. Other cases dealt with under this procedure were States
Parties where serious incidents caused concern in the Committee as to
the implementation of the Convention and where it feared the aggravation
of the situation. These incidents included the massacre committed
by an Israeli settler against Palestinian worshippers, the racist terrorist
acts against Jews in Buenos Aires in 1994 and in London 1994, the
clashes that took place in Cyprus in 1996 and the terrorist attacks in
Algeria in 1994 and 1995.
The actions taken by the Committee differed widely depending on
the extent to which the respective State Party was willing to cooperate
with the Committee. In the case of the Federal Republic of Yugoslavia
(Serbia and Montenegro) an intensive dialogue commenced at an early
stage which resulted in sending a good offices mission of three experts
(Mrs H. Ahmadu, Mr. I. Reshetov and Mr. R. Wolfrum) to Belgrade
and the Kosovo to promote a dialogue between the Albanians in
Kosovo and the Government of the State Party. The dialogue broke off
due to the decision of the meeting of States Parties to exclude the Federal
Republic of Yugoslavia (Serbia and Montenegro) from its delibera516
Max Planck UNYB 3 (1999)
tions.'' In spite of that unofficial contacts have been maintained between
members of the Committee and the representative of the Federal
Republic of Yugoslavia with a view to resuming the dialogue. Croatia
invited one member of the Committee (Mr. M. Yutzis) to give technical
advice as to the drafting of the report.
The response of Israel was less cooperative. The Permanent Representative
of Israel informed the United Nations of the establishment by
the government of a Commission of Inquiry and agreed, while questioning
the competence of the Committee, to transmit a copy of the
findings to the Committee. However, it refused to submit a special report
that the Committee had asked for. It has finally submitted the reports
(7th, 8th and 9th in one) at the 52nd Session (in March 1998). In
the introduction of the report the delegation of Israel questioned
whether Israel was receiving fair and equal treatment.
Representatives of Rwanda, Burundi and Algeria took the opportunity
to address the Committee whereas no reaction was received from
Afghanistan, Papua New Guinea, Liberia and the Democratic Republic
of Congo when they were informed that the Committee intended to
deal with the situation under its early warning and urgent procedure
and were asked to provide for information. The Russian Federation has
provided the required information in its periodic report and, in particular,
in the dialogue following the submission of such report.
Considering the experience of the Committee with this new procedure,
so far, the overall assessment is positive.5' Te focus of this procedure
should be less on such States in the situation of a civil war" but
rather on States Parties where tension is building up or might build up
or where civil war has ended and the State Party concerned needs all assistance
for restructuring its legal, judicial and administrative system.
See the letter of the Charge d'affaires of the Permanent Mission of the Federal
Republic of Yugoslavia in Geneva of 15 February 1995 as reproduced
in the Report of the Committee on the Elimination of Racial Discrimination,
1995 (Doc.A/50/18, para. 227). See also the reply of the Chairman of 6
March 1995 (in the same report at para. 227).
Different Alston, see note 44, para.79.
Here, in fact, the principle of the division of labour should apply as sggested
by Alston, see note 44, para. 79. Tis, however, requires that the Security
Council or a regional organization has become active. This cannot be
taken for granted. In the cases of inactivity it is the function of the human
rights treaty bodies engaged in such procedure to induce activities of international
organizations engaged in the preservation of peace and security.
Wolfrum, The Committee on the Elimination of Racial Discrimination 517
IX. Relation with the General Assembly, the Secretariat
and Other Human Rights Bodies
CERD is an autonomous body established under the Convention
which is linked to the UN System. It submits its reports to the General
Assembly through the Secretary-General. However, interest in the
work of the Committee in the General Assembly, notably its Third
Committee, is limited. The secretarial services for CERD are provided
by the Secretariat. The funding formally provided for by States Parties
now comes from the UN budget; the respective amendment of the
Convention has not yet entered into force.
Though the Committee has appointed experts as liaison officers to
be informed about the activities of other human rights bodies its connection
to such bodies is limited. An improved coordination amongst
the treaty bodies, at least, would render the functioning of such bodies
more effective. Such coordination can only be achieved with the assistance
of the Secretariat, which at the moment does not fulfill this function.
Receiving information aboat activities of other human rights
bodies, particularly, the Commission on Human Rights, UNHCR or
other treaty bodies depends totally upon the initiative of each single expert.
Additionally, there is little interest from the other human rights
bodies to cooperate more closely. For example, the Commission on
Human Rights has appointed a Special Rapporteur on contemporary
Forms of Racism, Racial Discrimination, Xenophobia and related Intolerance.
Although his tasks overlap with the ones of the Committee
and although he reports about States which are reporting to the Committee
he does not make use of the material accumulated by CERD
over decades. Given the limited resources for the protection of human
rights such duplication of efforts seems unacceptable.
X. Conclusions
The international efforts against racism, racial discrimination, xenophobia
and other related forms of intolerance have, so far, not been successful.
Although the struggle against apartheid has led to a positive result,
new forms of racism, racial discrimination and ethnical prejudice
or prosecution have emerged. The international bodies engaged in the
struggle against all these forms of intolerance and violence based there518
Max Planck UNYB 3 (1999)
upon, in particular the Committee, nevertheless have to continue and
even have to strengthen their efforts.
Only through these efforts will a public awareness be created as well
as a conviction within the world community that the mentioned forms
of intolerance and racial discrimination are intolerable violations of the
human dignity and constitute an international crime.
However, the possibilities of the Committee to effectively eradicate
racial discrimination are limited. The reporting system has its merits
although it is lacking enforcement mechanisms. Its effect rests in enforcing
States Parties to self-assess the human rights situation in the
given country. Such effects could be strengthened if the reports were
made public and became the object of a national discussion. This can be
achieved through publishing national reports either before submitting
them to CERD and inviting comments which would be communicated
to the Committee, or after the dialogue together with the Concluding
Observations. Another option would be the discussion of the report in
Parliament. Any of these approaches would initiate a public discussion
which again would fertilize the next dialogue with the Committee.
CERD should strongly encourage States Parties to pursue such a policy.°
CERD's possibilities are limited in cases where ethnic conflicts become
violent. In cases such as Rwanda or former Yugoslavia, where
ethnic tensions have resulted in an armed conflict, CERD has only limited
possibilities to ameliorate the situation, apart from calling for international
awareness and intervention. The latter functions, however,
should not be underestimated. International awareness concentrates on
specific conflicts and for a limited period only, thereafter conflicts are
neglected. This is, for example, true in respect of the civil war in Sudan,
equally no attention was paid in the international media to the ongoing
violations of human rights in Bougainville. Hence the international
community made no or very little effort to ameliorate the situation and
to put pressure on the States concerned. In this respect CERD could
and should provide for a more balanced approach and a sharpened
awareness of the international community concerning systematic and
grave violations of the Convention otherwise neglected.
In respect of cases taken up under the prevention, early-warning and
urgent procedure CERD has a twofold function. It should warn States
Parties about the building up of ethnic tensions and inform United Na57
Emphasized in the Alston report Doc.A/44/668, J6 et seq.
Wolfrum, The Committee on the Elimination of Racial Discrimination 519
tions bodies accordingly. After the ending of a conflict the Committee
should play an active role in assisting the reorganisation of the respective
State. The necessity of this approach was clearly felt in the Committee
when it discussed Bosnia Herzegovina after the conclusion of
the Dayton Accord. It was the prevailing view in the Committee clearly
expressed in the Concluding Observations -- that the Dayton
Accord had not been prepared adequately and that in particular the
rules on elections might lead to the confirmation of the facts established
by ethnic cleansing. This approach was also expressed in respect of
Rwanda where the Committee indicated its readiness to assist in the restructuring
of the country so as to avoid the repetition of the previous
ethnic conflicts. This approach was clearly inspired by the positive role
the Venice Commission has played and still plays concerning the drafting
of constitutional laws of eastern European States. In this regard the
Committee still has to define its role more clearly which States Parties
will have to accept and to utilize.
Annex 1013
Greta Uehling, The First Independent Ukrainian Census in Crimea: Myths, Miscoding, and
Missed Opportunities, 1 Ethnic and Racial Studies, Vol. 27 (January 2004)
Pursuant to Rules of the Court Article 50(2), Ukraine has provided only an extract of the
original document constituting this Annex. In further compliance with this Rule, Ukraine
has provided two certified copies of the full document with its submission.
I for q
Ethnic and Racial Studies Vol. 27 No. 1 January 2004 pp. 149--170
The first independent Ukrainian
census in Crimea: Myths, miscoding,
and missed opportunities
Greta Uehling
Abstract
State-defined identity categories can have a profound impact on individuals'
conception of themselves. Like birth certificates and migration documents,
the census is a crucial instrument in producing and maintaining ethnic and
racial identities. Recent research suggests that censuses measure preferences,
rather than objective data, and can profitably be studied along the
lines of political campaigns. This article advances the idea that the next
question is whose preference is being recorded. Ethnographic research on
the micropolitics of census-taking in Crimea, Ukraine suggest the dynamics
between census-takers and ethnic constituencies, as well as instructions from
census officials with various ethnic loyalties, have a crucial role to play.
Keywords: Census; Ukraine; state-building; Crimean Tatars; language;
nationality.
Political actors and government officials have a decided role to play in
the production of collective identities by carving national, racial, and
ethnic categories out of a diffuse spectrum of humanity. Statisticsgathering
is therefore one of the ways that the state enters the complex
process of identity formation.' Turning to the state's role in categorizing
a populace is not, however, to suggest that 'the state' is necessarily
operating in a unified or coherent way. Ethnography can bring greater
clarity to how various representatives of the state (and its citizens) are
involved. This article considers the dynamics of the 2001 Ukrainian
census in the Autonomous Republic of Crimea. I focus on census-takers'
interactions with respondents, conversations among census officials, and
informal dialogues among census-takers to explore the complex nexus in
which the practices and politics of census-taking were worked out.
02004 Taylor & Francis Ltd
ISSN 0141-9870 print/1466-4356 online
DOI 10.1080/0141987032000147977
I l Routledge
or6foci croon
l
154 Greta Uehling
they were collectively accused of treason and deported to the Urals and
Soviet Central Asia.' The Crimean Tatars began returning from exile in
large numbers after the disintegration of the Soviet Union. In particular,
their success in achieving equitable representation in official bodies and
sufficient education in their native language depends on numerical presence.
Long distrustful of Soviet statecraft, the Crimean Tatars have
conducted their own unofficial censuses. They have also had to fight for
official recognition. After the 1979 census, the Crimean Tatars objected
to the practice of counting them as 'Tatars' so vociferously that they were
then included in the 1989 census under the 'Crimean Tatar' ethnonym
(Tishkov, personal communication).
In spite of the Crimean Tatars' official status in the 2001 census,
dynamics between the census-takers and the Crimean Tatar population
refreshed memories of their historical erasure, raising new fears of their
annihilation as group. From the first days of the census, the editorial
offices of the major Crimean Tatar newspapers began receiving calls that
Crimean Tatars were being told by census-takers that there was no such
ethnic group, only 'Tatars'. The behaviour of the census-takers led
Crimean Tatars to believe that a hidden hand was operating behind the
scenes, intent (not unlike the authorities of the Soviet Union) on their
disappearance. As the acting head of the Crimean Tatar political body,
the Mejlis put it: 'This is a special, political genocide. The Mejlis has
been charged with advocating on Crimean Tatars' behalf on issues of this
nature.'
On the ground, it was hard to ascertain how prevalent was the coding
of 'Crimean Tatars' as 'Tatars'. The Deputy Director of the Department
of Statistics admitted that the census-takers 'had their own shortcomings'.
She elaborated on the limited training they received and did not
exclude that such violations were possible. It seemed more likely,
however, that the Crimean Tatars were especially sensitized to the possibility
of this kind of treatment by their 1944 deportation and experiences
of discrimination in the past. In the Soviet period, the experience of
being denied their very existence (they were issued passports that read
'Tatar') was woven into the habitus of the Crimean Tatars, making it
doubly difficult to assess the accuracy of these perceptions. When I
followed a census-taker in a Crimean Tatar area, there were numerous
instances in which it was the respondent who replied 'Tatar' to the
question about nationality and it was the census-taker who sought
clarification before writing Crimean Tatar. Similarly, when these respondents
said they spoke 'Tatar' she sought clarification whether they meant
Crimean Tatar. Here, it is partly the Crimean Tatar ethnonym that is
responsible: the 'Crimean' part is dropped, particularly by youth, for the
sake of brevity and ease of speech. However, it is also the case that the
sharpness and immediacy of Crimean Tatar identity may be fading.
National elites worry that there are Crimean Tatars who are not
lst independent Ukrainian census in Crimea 155
sufficiently conscious of their ethnic 'roots. This concern was evident
when both the editors of the Crimean Tatar newspapers and the acting
head of the Mejlis lamented that by failing to propagandize prior to the
census, they had missed an opportunity to 'work with the people' and
raise ethnic self-awareness.
The instances in which the Crimean Tatars were coded as 'Tatars'
became such a concern over the course of the week that it coloured
religious observances. The Muslim holiday of Yantar, which fell on 10
December just prior to the end of Ramadan, was supposed to have been
marked off from politics. However the holiday celebration dissolved into
a discussion of the threat the census posed. This led to a debate about
the relative merits of changing their Crimean Tatar ethnonym. Census
politics had so thoroughly penetrated the milieu that they were palpable
at the ritual.
The preliminary results of the census show that the fears of the
Crimean Tatars were only partially borne out. The 248,000 indicated in
the preliminary census results is viewed as an undercount by the
Crimean Tatars, whose unofficial censuses suggest that they number
closer lo 265,000 or even 270,000.16 However, the Crimean Tatars' fears
were not borne out with respect to miscoding. Except in Kherson oblast
and Sevastopol where the number of Tatars rose while the number of
Crimean Tatars fell, the relative proportion of the two groups remained
at 1989 levels. The Kherson data are explained by the fact that Kherson
was home to Crimean Tatars who migrated into the peninsula proper
following the mass repatriation effort. Why Tatars rose in relation to
Crimean Tatars in Sevastopol, however, remains unexplained. Whether
or not Crimean Tatar concerns were well grounded, the more basic point
remains that an exercise designed to make the division of resources more
rational and equitable led to rumours and the hypertrophy of fear.
Administrators and citizens alike were highly conscious of the long-term
political outcomes that could evolve from these events. Much will
depend on whether the Crimean Tatars, who are seeking representation
at all levels of government, will win a say in the matters that affect them.
Nationality
[n the first independent Ukrainian census, it was the questions on nationality
and language that generated the most controversy. This is predictable
given the history of Soviet nationality politics. By the middle of the
twentieth century, Soviet ethnographers, Marxist-Leninist social scientists,
and Soviet officials had crafted a system of classifying national and
territorial units that not only worked as neatly as a set of nesting dolls
(Slezkine 1994) but was perhaps more clearly articulated than in any
other country in the world (Hirsch 1997). The irony is that in 2001, many
individuals were simply not asked about their nationality. Census-takers
Annex 1014
Institute for Political and Ethnonational Research of the National Academy of Sciences of
Ukraine, Crimea in Ethnopolitical Measurements (2005), cited in Krym v
etnopolitychnomu vymiri (Kyiv: Instytut politychnych i etnonatsional’nykh doslidzhen’
NAN Ukra
Pursuant to Rules of the Court Article 50(2), Ukraine has provided only an extract of the
original document constituting this Annex. In further compliance with this Rule, Ukraine
has provided two certified copies of the full document with its submission.
For NOTE 13
NOTE 13
It was necessary to
train
Annex 1015
Gwendolyn Sasse, The Crimea Question: Identity, Transition, and Conflict, Harvard University
Press (2007)
Pursuant to Rules of the Court Article 50(2), Ukraine has provided only an extract of the
original document constituting this Annex. In further compliance with this Rule, Ukraine has
provided two certified copies of the full document with its submission.
m
THE CRIMEA QUESTION:
Identity, Transition, and Conflict
Gwendolyn Sasse
Distributed by Harvard University Press
for the Harvard Ukrainian Research Institute
Crimean Tatar Historiography
The ethnogenesis of the Crimean Tatars is presented differently
depending on who wrote its history"" The Crimean Tatars resent the
predominant Soviet portrait of their relatively late arrival in Crimea
during the Mongol era, which projects their origin into the depths of
Asia or presents them as a subgroup of the Volga Tatars. This view
effectively undermines the Crimean Tatars' claims to be an indigenous
group with a special right to the territory. Crimean Tatar historians
take issue with this interpretation and emphasize the Crimean
Tatars' pre-Mongol links to Crimea. Williams describes the Crimean
Tatars as "an eclectic Turkic-Muslim ethnic group that claims direct
descent from the Goths, Pontic Greeks, Armenians, the Tatars of the
Golden Horde, and other East European ethnic groups." For most of
their history, the Crimean Tatars were not a homogeneous group;
their differences resulted from the diverse geography of Crimea itself.
Against the background of these diverse ethnic and geographic loyalties,
Islam increasingly became the primary marker of a collective
cultural identity which linked the inhabitants of Crimea to the wider
74 CHAPTER THREE
as a way to direct!v challenge Ukrainian sovereignty and independence.'
Aleksandr Solzhenitsyn's claim that Crimea is Russia's "natural
southern border" is but one prominent example of this rhetoric,
readily taken up by populist Russian politicians like lurii Luzhkov
or Vladimir Zhirinovskii. The Communist Parry under Gennadii
Zyuganov also has kept alive the Soviet-era myth. The Russian movement
in Crimea has used the Sevastopol myth to lend itself historical
credibility and to connect with the claims of certain Russian politicians.
The Sevastopol myth dominated the rhetoric of the early postSoviet
polarization in Crimea. Admiral lgor' Kasatono, for example,
claimed rhar the loss of the Black Sea Fleet, which he commanded.
would throw Russia back to the time before Peter [.' In 1996, in what
can only be described as a coup of the regional media. the alleged
descendants of three famous Crimean War commanders-Pavel
Nakhimov, Vladimir Kornilov, and Vladimir Istomin --appealed to
the Russian authorities not to loosen their control over Sevastopol.
The local fears of linguistic and political "Ukrainization" of Crimea,
\ real or imagined, led to talk of a "third Sevastopol siege."
THE MAKING OF HISTORY
Nat«f
75
international Muslim community (umma) rather than the territory
of Crimea. By the fifteenth cenrury, the process of lslamization had
created the foundation for a wider Crimean Tatar group identification.
The historically most contested period is that of Russian colo/
aial rule over Crimea. Crimean Tatar and Turkish historiography
provide the mirror image of the Russian and Soviet-Russian views.
) For Crimean Tatar and Turkish historians, the year 1783 represents a
national disaster. The subsequent waves of emigration to the Ottoman
Empire are linked to Russian repression. An estimated 4oo,ooo Tatars
emigrated from Crimea to the Ottoman Empire in the eighteenth
and nineteenth cenruries, and about forty percent of the Crimean
population emigrated after the Crimean war, reducing the number
of Crimean Tatars to about 10o,0o0 by 1865. However, Crimean Tatar
historiography tends to downplay both the religious incentives to
emigrate, which still superseded territorial attachments, and the mass
response to the explicit invitation by the Ottoman sultan."
The identification with Crimea as an ethnically defined Crimean
Tatar homeland is by and large a twentieth-century creation. Paradoxically,
"it was the Soviet state that completed the development of a
secular Crimean Tatar national identity...and the construction of the
Crimea as a homeland." The Soviet regime first fostered this ethnoterritorial
identity in the 192os. After the deportation of 1944, this
fused territorial and cultural identity served as a common bond and
means of survival in exile. The urge to find out more about Crimean
Tatar history, a taboo subject under the Soviet regime, was one of the
starting points for the Crimean Tatar national movement from the
1950s and 196os and the Soviet dissident movement in general." As
elsewhere in the FSU, the "history debate" of the perestroika period
from 1986--87 marked a key turning-point for nationalist mobilization.
In the case of the Crimean Tatars, this momentum grew into a mass
return to Crimea in the early 1990s.
Oral history plays an important part in the historical consciousness
of the Crimean Tatars. The written historical record prior to the
early twentieth century is sparse." Moreover, the Tatars "have generally
had their enemies as their historians." A modernization of educational
policies for the Muslims in the Russian Empire got under way
only at the end of the nineteenth century." The key formative stage
Annex 1016
Razumkov Center, 5 National Security and Defense (2009)
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
(Analytical Report of Razumkov Centre) ...................................................................................2
Section 1. DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF
RELATIONS, PROSPECTS OF THEIR EVOLUTION (in Crimean and pan-Ukrainian
contexts) .................................................................................................................... 3
1.1. SOCIO-CULTURAL COMMUNITIES OF CRIMEA: SPECIFICITY OF SELF-IDENTIFICATION
AND PROSPECTS OF FORMATION OF A COMMON CRIMEAN IDENTITY ........................ 3
MAP
SOCIO-DEMOGRAPHIC FEATURES OF SOCIO-CULTURAL GROUPS OF CRIMEA ........................ 8
ANNEX 1
SPECIFICITIES OF SELF-IDENTIFICATION OF SOCIO-CULTURAL COMMUNITIES .....................10
1.2. SPECIFICITIES OF COMMUNICATION AND CONFLICT POTENTIAL IN RELATIONS
BETWEEN THE DOMINANT SOCIO-CULTURAL GROUPS .............................................. 13
1.3. IDEAS OF WAYS TO HARMONISE INTER-ETHNIC AND INTER-CONFESSIONAL
RELATIONS IN CRIMEA ................................................................................................. 19
TABLE
SPECIFICITIES OF IDENTIFY OF DOMINANT SOCIO-CULTURAL GROUPS OF CRIMEA .............22
Section 2. FACTORS INFLUENCING THE SITUATION IN THE AR OF CRIMEA ............................29
2.1. INEFFECTIVE MANAGEMENT OF SOCIAL PROCESSES IN CRIMEA ............................... 29
2.2. UNRESOLVED PROBLEMS OF INTEGRATION OF
CRIMEAN TATARS INTO UKRAINIAN SOCIETY .............................................................. 37
MAP
STATE OF SETTLEMENT AND AMENITIES FOR CRIMEAN TATARS IN CRIMEA .............................42
2.3. FRAGMENTATION OF INFORMATION SPACE OF CRIMEA
AND ITS VULNERABILITY TO EXTERNAL INFLUENCES ................................................ 48
ANNEX 2
INFORMATION PREFERENCES OF CRIMEANS ...........................................................................54
2.4. DISPARITIES IN THE EXERCISE OF SOCIO-CULTURAL RIGHTS
AND NEEDS IN CRIMEA ................................................................................................ 56
2.5. TRENDS OF ETHNIC AND RELIGIOUS INTOLERANCE IN THE ACTIVITY
OF CRIMEAN PUBLIC ORGANISATIONS ........................................................................ 60
ANNEX 3
CRIMEAN ORGANISATIONS EXERTING THE GREATEST INFLUENCE ON INTER-ETHNIC
AND INTER-CONFESSIONAL RELATIONS ...................................................................................66
Section 3. CONCLUSIONS AND PROPOSALS ...........................................................................70
ARTICLES
CRIMEAN PROJECT OF THE RUSSIAN FEDERATION: AN ATTEMPT OF POLICY
RECONSTRUCTION ON THE BASIS OF AD HOC DECISIONS
Oleksandr LYTVYNENKO ........................................................................................................73
CONFLICT ASPECTS OF POLITICAL COMMUNICATION IN CRIMEA:
INTER-ETHNIC CONTEXT
Yuliya TYSHCHENKO ..............................................................................................................77
POLITICAL AND LEGAL PROBLEMS OF CRIMEAN TATAR PEOPLE:
APPROACHES TO SOLUTION
Yuriy YAKYMENKO .................................................................................................................84
NATIONAL
SECURITY & DEFENCE
π 5 (109)
2 0 0 9
Founded and published by:
UKRAINIAN CENTRE FOR ECONOMIC & POLITICAL STUDIES
NAMED AFTER OLEXANDER RAZUMKOV
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Editorial address:
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do not necessarily reflect those
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© Razumkov Centre, 2009
C O N T E N T S
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http://www.razumkov.org.ua/magazine
This project is implemented by Razumkov Centre
together with the University of Basel’s
Europainstitut with support from the Swiss State
Secretariat for Education and Research.
2 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
The AR of Crimea is a special region of Ukraine, not only because of its autonomous status, but also
thanks to its unique historic and cultural heritage, ethnic composition of the population, geopolitical situation.
It may be said without exaggeration that the ability to integrate Crimea into the pan-Ukrainian political and
socio-cultural space presents a key test of maturity and effectiveness of the Ukrainian state. This determines
the extreme importance of Crimean segment in the Ukrainian policy. But unfortunately, there are no grounds
to claim serious success in that domain; rather, things are developing in the opposite direction.
It may be stated that the socio-political situation in the AR of Crimea, after the relative stability of late 1990s
– early 2000s, has deteriorated lately.
In the result of serious political contradictions, deregulation of the executive branch, lack of system and
consistency in the Ukrainian state policy regarding Crimea, interaction between the republican and central
authorities in some sectors is far from standards of constructive cooperation, which leads to continual nonexecution
or even open obstruction of decisions of the central authorities dealing with Crimea.
This brings to light drawbacks in the effective legislation describing the rights and powers of the
AR of Crimea, regimenting the autonomy’s relations with Kyiv, presentation and defence of its interests in
the supreme bodies of state power.
Meanwhile, radical, first of all – pro-Russian public and political forces stepped up their activity in Crimea,
manifested, in particular, in stronger opposition to actions of the state authorities aimed at rapprochement with
Euro-Atlantic structures, and in moral support for Russia and its Black Sea Fleet during the armed conflict
with Georgia in August 2008.
The problems of amenities for and social rehabilitation of repatriates, first of all – representatives of Crimean
Tatars, are far from final solution. Despite the deep study of those problems by the Ukrainian authorities and
representative bodies of the Crimean Tatar people, full mutual understanding between its political leadership
and the state authorities in the issues of restoration of economic, social, cultural and political rights of the
Crimean Tatar people, definition of its place in Ukraine’s legal framework and its state system is still absent.
Given the evident deficiency of means of protection of collective interests available to Crimean Tatars, this
undermines trust in the authorities, both Ukrainian and Crimean, and deteriorates inter-ethnic relations in
Crimea.
The absence of strategic approaches of the Ukrainian authorities to comprehensive solution of Crimean
problems, prevalence of the policy of situational response to separate problems or their neglect have an
effect on the public consciousness of the Crimean residents in the form of growth of separatist and irredentist
spirits, unpopularity of the prospects of further development of Crimea within the constitutional framework of
Ukraine.
External influences on the situation in the AR of Crimea in economic, political, religious and information
sectors are growing. Not all of them may be termed negative, but many of them are designed to entirely cut
Crimea from Ukrainian political and socio-cultural space or to make the latter a factor of political and cultural
disintegration of the Ukrainian society and state.
Against that background, Crimean society witnesses processes of transformation, in particular, consolidation
of the main ethnic groups by socio-cultural features, growth of competition among them in the political, socioeconomic
and symbolic domains. Evolution of relations among the most numerous Crimean socio-cultural
communities towards aggravation of contradictions will threaten the socio-political stability of not only Crimea
but Ukraine as a whole, give a pretext for interference of outside forces in its internal affairs, moreover, given
the precedents of implementation of similar political scenarios.
Study of the situation in the AR of Crimea, identification of factors influencing it and search of ways of the
most optimal solution of the existing problems are all covered by the Ukrainian-Swiss project “Socio-political,
inter-ethnic and inter-confessional relations in Crimea –state, problems, ways of solution”, jointly implemented
by Razumkov Centre and University of Basel’s Europainstitut1. This Analytical Report deals with the second
stage of the project.
Analytical Report consists of three sections.
on the basis of data of sociological surveys identifies the main socio-cultural communities of Crimea, examines
their mutual perception, the character and prospects of relations, prospects of emergence of a single Crimean
identity.
analyses the main factors influencing the situation in Crimea – political, socio-economic, cultural, religious,
information.
carries conclusions of the prospects of formation of the Crimean identity, specificities of the main socio-cultural
communities of Crimea, the character and prospects of their relations, and presents proposals as to the ways
and lines of improvement of the socio-economic and socio-political situation in the autonomy.
First
section
Second
section
Third
section
CRIMEAN SOCIETY: DIVIDING
LINES AND PROSPECTS
OF CONSOLIDATION
1 Razumkov Centre compliments Professor G.Kreis (University of Basel’s Europainstitut) for valuable advice and proposals at the stage of generation of
the working hypotheses of this report and the study toolset.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 3
1 For more detail see: Crimea: people, problems, prospects (Socio-political, inter-ethnic and inter-confessional relations in Crimea). Razumkov Centre
Analytical Report. – “National Security & Defence”, No.10, 2008.
2 The Report builds on the results of all-Crimean public opinion polls representative of the adult population of the AR of Crimea and Sevastopol by the key
socio-economic indicators (age, sex, settlement type, nationality). The polls were conducted by the Razumkov Centre Sociological Service: on July 29 – August
11, 2004 (3,143 respondents above 18 years polled in the AR of Crimea and Sevastopol, the sample’s theoretical error does not exceed 1.2%); October 18 –
November 9, 2008 (6,891 respondents above 18 years polled in the AR of Crimea and Sevastopol, the sample’s theoretical error does not exceed 1.2%);
May 7-20, 2009 (2,016 respondents above 18 years polled in the AR of Crimea and Sevastopol, the sample’s theoretical error does not exceed 2.3%).
Also used were the results of focus groups (group interviews) held by Razumkov Centre Sociological Service in Simferopol in May 2009 (three focus groups −
of ethnic Russians (R), Ukrainians (U), Crimean Tatars (Т)) and an expert poll (held by Razumkov Centre Sociological Service on May 23 - June 3, 2009, with
80 experts polled in Kyiv and Crimea).
Unless specified otherwise, cited are the results of the latest Crimean poll.
3 See: Crimea: people, problems, prospects (Socio-political, inter-ethnic and inter-confessional relations in Crimea)…, p.11.
1.1. SOCIO-CULTURAL COMMUNITIES
OF CRIMEA: SPECIFICITY OF SELFIDENTIFICATION
AND PROSPECTS OF
FORMATION OF A COMMON CRIMEAN
IDENTITY
Prediction of socio-political processes in Crimea is
impossible without a clear idea of self-identification of
the residents of that region, since their self-identification
is among the most important factors shaping the character
of social behaviour of citizens, as they first of all follow
the values, norms, beliefs, convictions dominating in
the social group they affiliate themselves with. So,
we examined specificities of the socio-cultural selfidentification
of the Crimean residents and singled out
their socio-cultural communities2. The results generally
reiterated the preliminary conclusions of the first phase
of the project, saying that “by mentality characteristics as
well as regarding their attitude towards Ukraine, Ukrainian
citizenship, Crimea’s perspectives, etc., the majority of
Ukrainian and Russian residents present a unified social and
cultural community”3, while Crimean Tatars substantially
differ from them.
1.1.1. Criteria of distinction of socio-cultural
communities
Language. The numeric prevalence of Russians
in Crimea leads to the prevalence of the Russianlanguage
environment in the autonomy; as a result, the
overwhelming majority (85.1%) of ethnic Ukrainians in
Crimea consider Russian their native language, 98.5%
speak it at home (among ethnic Russians – respectively,
99.6% and 98.4%). The share of Crimean Tatars
considering Russian their native language is rather small
(6%, although the share of those who mainly speak it at
home is higher − 31.5%).
Affiliation with a cultural tradition. 75.9% of ethnic
Russians affiliate themselves with the Russian cultural
tradition, another 17.4% − with the Soviet. The majority
(52.7%) of ethnic Ukrainians affiliate with the Russian
cultural tradition (another 26.6% − with the Soviet
cultural tradition, only 9.7% − the Ukrainian). Crimean
Tatars distance themselves from the Russian cultural
tradition – only 0.5% affiliated with it, 91.9% − with the
Crimean Tatar.
UKRAINE IN THE SINGLE ECONOMIC SPACE
DOMINANT COMMUNITIES OF
CRIMEA: SELF-IDENTIFICATION,
CHARACTER OF RELATIONS,
PROSPECTS OF THEIR EVOLUTION
(in Crimean and pan-Ukrainian
contexts)
The first stage of the study performed by Razumkov Centre at the end of 2008 revealed a number
of topical problems of public life in Crimea that required a deeper survey. The problems included, in
particular, processes of formation of the Crimean regional identity and the character of relations among the
main communities formed in Crimea1. Meanwhile, the study demonstrated that the communities exerting
“institutional” influence on socio-political developments in the autonomy are not always formed on ethnic
grounds. Socio-cultural orientations, including language and cultural preferences, civic and religious selfidentification,
play the decisive role here.
This section describes features of the main socio-cultural groups of Crimean society distinguished by
the results of studies conducted during the second stage of the project, their mutual assessments, ideas of
the ways of solution of regional problems.
1.
4 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
This gives grounds to note that the majority of
Ukrainians in Crimea identify themselves as representatives
of a common with Russians socio-cultural community,
resting on domination of the Russian-language culture.
When directly asked if they agree that there are actually
no differences between ethnic Russians and Ukrainians in
Crimea, and they make one socio-cultural community, a
positive answer was given by 73.7% of ethnic Ukrainians
living in Crimea, the same opinion is shared by the
majority (76.2%) of Russians (Table “There is an opinion
that there are almost no differences between ethnic Russians
and Ukrainians in Crimea...”).
Socio-cultural communities. Proceeding from the
above, one may distinguish the main socio-cultural
communities of Crimea.
The most numerous group is presented by those
representatives of the Russian and Ukrainian ethnoses
who by their socio-cultural orientations gravitate to the
Russian cultural and language identity, the geopolitical
community that may be termed “the Russian world”.
One may distinguish three main ideological reference
points important for affiliation with the “Russian
world”: (1) adherence to the Russian culture, Russian
language; (2) support for Orthodoxy as the spiritual
and uniting basis of the “Russian world”; (3) unity of
the East Slavic world led by Russia. That group was
conventionally termed “Slavic community” (58.7% of
those polled).
The Crimean Tatar community (9.1% all of those
polled) even in the conditions of forced long exile
managed to preserve a high level of national selfidentification
and unity, the native language, the feeling
of affiliation with the Crimean Tatar cultural tradition and
traditional religion – Islam.
Namely the relations between those two socio-cultural
groups (Crimean Tatars and the Slavic community) largely
shape the public life in the autonomy in different sectors
(cultural, social, political, etc).
Alongside with those two “core” groups, we
distinguished rather a motley group of “others” (32.2% of
those polled) that, being distinguished by the “negative”
criterion (i.e., stay beyond the two former groups), is very
heterogeneous by its structure. Within it, we separated
another small group – “Crimean Ukrainians” (6.5%
of those polled) that included Ukrainians unwilling to
associate themselves with the “united Russian-Ukrainian
community of Crimea”.
1.1.2. Specificities of self-identification
of socio-cultural communities4
Slavic community
Individual criteria of self-identification. The
importance of national, language and religious selfidentification
for representatives of different sociocultural
groups may be judged from answers to the
question “What group of people you can say about “That
is us”, in the first place?”. National self-identification
was first in none of the groups, being the least important
for representatives of the Slavic community − there,
only 3% reported “We are representatives of our
nationality” (in other groups – from 16% to 21%).
For representatives of the Slavic community, the main
individual criterion of self-identification is presented
by the affiliation with a language community (“We are
Russian-speaking” − 66%).
Affiliation with a cultural tradition. Three-quarters
(74.6%) of representatives of the Slavic community
affiliate themselves with the Russian cultural tradition.
Quite many representatives of the Slavic community
affiliate themselves with the Soviet tradition. However,
the younger representatives of that group are, the less they
4 The summary results of the latest public opinion poll dealing with the specificity of self-identification of socio-cultural communities are cited in Annex 1,
pp.10-13 of this magazine.
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
There is an opinion that there are almost no differences
between ethnic Russians and Ukrainians in Crimea,
and they make a unified socio-cultural community.
Do you agree with this statement?
% of those polled
CRIMEA Ukrainians Russians Crimean
Tatars
Agree 37.4 34.1 40.1 28.8
Most likely agree 35.3 39.6 36.1 20.1
Most likely do not agree 9.8 12.4 7.3 18.5
Do not agree 4.5 5.2 3.9 7.6
Hard to say 13.0 8.7 12.6 25.0
With what religion are you affiliated?
% of those polled
CRIMEA Ukrainians Russians Crimean
Tatars
Orthodoxy 76.5 85.1 84.9 1.1
Islam 9.5 0.2 0.2 97.8
I am just Christian 5.4 6.0 6.1 0.0
Roman Catholicism 0.4 0.4 0.1 0.0
Greek Catholicism 0.2 0.2 0.1 0.0
Protestantism 0.2 0.2 0.3 0.0
Judaism 0.2 0.0 0.0 0.5
Buddhism 0.0 0.0 0.1 0.0
Other 0.0 0.0 0.1 0.0
I am not affiliated with any
religion
7.5 8.0 8.1 0.5
Confessional self-identification. Confessional selfidentification
is an important aspect of socio-cultural
self-identification. At that, self-identification with
some religious community is often determined not by
religious convictions but, rather, by the perception
that affiliation with a certain religion is an attribute of
affiliation with some ethnic community. For instance,
according to the poll conducted by Razumkov Centre in
November 2008, 58.4% of the polled Crimeans agreed
that “the ethnic and religious affiliation of a person
should be related with traditional perceptions, for
instance, Russian – Orthodox, Pole – Catholic, Crimean
Tatar – Muslim, etc”.
According to the May 2009 poll, 85.1% of ethnic
Ukrainians and 84.9% of Russians called themselves
Orthodox, while 97.8% of Crimean Tatars − Muslims
(Table “With what religion are you affiliated?”).
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 5
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
tend to identify themselves like that. For instance, among
people above 60 years, affiliation with the Soviet cultural
tradition was reported by 38.9%, while in the age from 18
to 29 years – by only 6.5%.
Territorial-spatial identity. The Crimean regional
identity prevails among representatives of the Slavic
community – 65.4% reported “Crimeans” as the group that
could be termed by them as “us”. Only 7.4% in the first
place called themselves citizens of Ukraine.
Somewhat different answers were produced when
representatives of that group were asked what they
associated themselves with in the first place. 35.9%
associated themselves with Crimea – much fewer than
those who said “we are Crimeans”, mainly because this
question suggested answers that, on one hand, allowed
deeper “localisation” of their identity – “with the place
of residence (city, village)” (25.6%), and enabled
identification with Russia (16.6%) or the Soviet Union
(11.7%). Only 3.6% of them associated themselves with
Ukraine.
Rather demonstrative for comprehension of the
territorial-spatial identity of different socio-cultural
groups were the answers to the question of their idea of
what the Crimea is. 40.2% of representatives of the Slavic
community said “Crimea is Russia”, 34.8% – “Crimea is
both Ukraine and Russia”.
The prevalence of the local identity produces rather
high share (41%) of people convinced that all Crimeans,
irrespective of their ethnic origin, have common traits that
differ them from Ukrainians, Russians, representatives of
other peoples. At that, 36.9% believe that the existence of
those common traits may with time lead to the creation of
a single community –Crimean nation (the opposite opinion
is shared by 26.1%).
Nearly two-thirds (65.7%) of representatives of the
Slavic community believe that Russians and Ukrainians
are the same people.
EXTRACTS FROM RECORDS OF
DISCUSSIONS IN FOCUS GROUPS
U: “Every nationality has such trait as love for the small
Motherland. So, the specific character of Ukrainians and Russians
in Crimea may be described as “Crimean patriotism”. I used to
spend much time outside Crimea. We felt kindred because we were
Crimeans, and only after that, Russians, [or] Ukrainians. That was
the kinship based on the Crimean patriotism. Other residents of
Ukraine did not understand that. In some companies, they called
us…“Crimeans”. I mean that this factor of kinship…influences
human consciousness”.
U: “When I was employed at one organisation (not in Crimea),
we had a Tatar from Dzhankoy at work, and there happened to be a
Russian from Crimea. When they met, they embraced each other,
and were so happy. They had common subjects [for conversation],
talked about nature, walked together, and when one got a job, and
the other did not, they kept contact over the phone. People from
Crimea are kind of more united than people from other regions of
Ukraine”.
Attributes of the common Crimean identity.
Although in all socio-cultural groups those who
believe that Crimeans have common traits that differ
them from those living outside Crimea are in a relative
majority, the perceptions of what exactly unites
(or should unite) the Crimeans in one community
substantially differ. For representatives of the Slavic
community, the top five such “uniting” traits are:
(1) “common language used by the majority of
Crimeans is Russian”; (2) “positive attitude to Russia”;
(3) “desire to see Ukraine in a union with Russia
and Belarus”; (4) “common Motherland is Crimea”;
(5) “negative attitude to NATO”.
That is, orientation to Russia and association of the
Crimean community with the “Russian world” are seen as
the main value-based pillars of the Crimean community.
The negative perception of NATO appears among the main
attributes of the unity of the Crimean community exactly
because NATO is seen as a geopolitical alternative to the
“Russian world”.
Civil identity. Only 27.3% of representatives of the
Slavic community consider themselves members of the
Ukrainian political nation (“Ukrainian people, including,
according to the Constitution of Ukraine, citizens of
Ukraine of all nationalities”), while 44.2% do not feel like
that.
Religious identity. The overwhelming majority
(90.5%) of representatives of the Slavic community
consider themselves Orthodox, although only 53.3%
of representatives of the Slavic community who called
themselves Orthodox affiliate themselves with the
Ukrainian Orthodox Church (43.5% do not affiliate
themselves with any Orthodox church, saying “I am just
Christian”).
Crimean Tatars
Subjective criteria of self-identification. Crimean
Tatars first of all identify themselves as Muslims (61.4%),
another 6.5% − as members of Ummah (the world Muslim
community).
Religious identity. 97.8% of Crimean Tatars
consider themselves Muslims. Half (50%) of Crimean
Tatar followers of Islam believe that a faithful
Muslim should follow such Islamic prescriptions as
Sadaka (voluntary donations and alms to the poor)
and Salat (namaz, five prayer, 49.2%). Sawm (the fast
of the month of Ramadan) was mentioned by 42.5%,
Shahadah (words of declaration of belief) – 30.6%,
more rarely mentioned were Hadj (pilgrimage to
Mecca, 16%) and Zakat (obligatory tax on property
and revenues for the community benefit, 12.7%). The
fact that faithful Muslims least of all tend to see Zakat
as an obligatory prescription of Islam to be followed
may witness poor control of Crimean Muslim leaders
over believers.
Idea of the right stand of a faithful Muslim in
public life. Half (50.6%) of Crimean Tatars who consider
themselves Muslims believe that a Muslim should follow
the covenants of Islam, while remaining a loyal citizen
6 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
of his country. 20% of representatives of that group
believe that a Muslim should seek rearrangement of the
state he lives in on Islamic principles, 25.6% − aspire
restoration of Caliphate (World Islamic state). So, it
may be assumed that Islamist convictions are rather
widely spread among Crimean Tatars.
Affiliation with a cultural tradition. 91.9% affiliate
with Crimean Tatar cultural tradition, only 0.5% – with
the Russian.
Territorial-spatial identity. 78.3% chose “Crimeans”
as the group termed “us”, only 7.6% consider themselves
citizens of Ukraine in the first place. Somewhat different
answers were produced when representatives of that
group were asked what they associated themselves
with in the first place. 38.3% associates themselves
with Crimea – far less than those who reported “we
are Crimeans”. Other options of self-identification at
answer to this question were reported by still fewer
representatives of that group, 22% remained undecided.
The large share of undecided Crimean Tatars is in the
first place attributed to those representatives of that
group who share Islamist convictions – 45.1% of them
were undecided5, while among Crimean Tatars who do
not share Islamist views undecided made only 1.9%,
whereas 58.9% of them in the first place associated
themselves with Crimea.
For a relative majority (35.3%) of Crimean Tatars, the
Crimea is neither Ukraine nor Russia. For every fourth
(23.9%), Crimea is both Ukraine and Russia. Again,
the answers substantially differ dependent on adherence
to Islamist principles, first of all, concerning the option
“Crimea is Ukraine”. Among those who share Islamist
views, it was chosen by only 1.2%, among those who
do not – 26.5%.
Crimean Tatars more than other groups tend to believe
that the existence of common traits may with time lead
to the creation of a single community – Crimean people
(43.2%).
Attributes of a common Crimean identity.
For Crimean Tatars, the top five traits making the
Crimeans feel a single community included “common
Motherland is Crimea”, “own territory is Crimean
peninsula”, “historic place names”, “tolerable attitude
to representatives of all nationalities and faiths living
in Crimea”, “Ukrainian citizenship”, i.e., common
territory, common history, tolerance, common Ukrainian
citizenship. Meanwhile, speaking about historic place
names, they mean restoration of Crimean Tatar names.
As discussed below, that idea is rejected by the majority
of representatives of the other Crimean socio-cultural
groups.
Civil identity. Only 20.7% of Crimean Tatars
consider themselves representatives of the Ukrainian
political nation, and roughly as much (23.9%) do not.
The majority (55.4%) remained undecided on that issue.
The “doubts” of the majority of Crimean Tatars may
stem from the fact that they still do not feel integrated
into Ukrainian society. Also demonstrative, every tenth
polled Crimean Tatar did not mention his Ukrainian
citizenship.
If we examine groups of Crimean Tatars who share
and do not share Islamist convictions separately, the
difference is striking. While among those who do not
share Islamist convictions, 37.3% considers themselves
representatives of the Ukrainian nation, 30.4% do not,
and 32.3% are undecided, no adherent of Islamism
reported to be a representative of the Ukrainian
political nation, 17.1% reported they were not, 82.9%
were undecided. It may be assumed therefore that the
popularity of Islamist views is strongly related with the
non-integration of Crimean Tatars into the Ukrainian or
Crimean society.
Social status and socio-economic standing6. The
social status greatly depends on education. According
to the survey results, Crimean Tatars differ from
the other socio-cultural groups – they produced a
somewhat lower than the Crimean average share of
respondents with higher education, and a somewhat
higher – with uncompleted secondary education. As
a result, they have fewer professionals (respectively,
8.7% and 16.2%). 12% of Crimean Tatars reported
that they had no job (among all those polled in the
Crimea – 5%). A Crimean Tatar member of a focus
group noted: “When Crimean Tatars were coming
back, it was difficult for them to find a job, because
of a “taboo” to hire Crimean Tatars. Crimean Tatars
proved industrious and began to create jobs for
themselves”. Crimean Tatars reported a higher than
Crimean average share of entrepreneurs (respectively,
9.3% and 5.9%),
Financial standing and affiliation with a social
class. Among Crimean Tatars, notably more respondents,
describing the material standing of their family, give the
answer “Hardly make ends meet, money is insufficient
to buy even necessary foodstuffs” (60.3%). Among
representatives of the Slavic community, they make 45%,
among “other” – 35.8%.
Due to the low self-assessment of their wellbeing,
Crimean Tatars more than representatives of
other groups tend to affiliate themselves with the
lower social class (58.2%, among all those polled –
43.1%).
5 The answer “hard to say” may witness either an undecided stand or the reluctance to frankly give an answer not shared by the majority of the population in
some area or region.
6 Socio-demographic features of socio-cultural groups of Crimea are presented on the map, pp.8-9 of this magazine.
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 7
7 The majority (59.5%) of “Crimean Ukrainians” (being a part of the group of “other”) consider themselves representatives of the Ukrainian political nation.
Group of “other”
By many features, the group of “other” is close to the
Slavic community. For its representatives, too, the main
individual criterion of self-identification is presented by
self-identification with a language community (“we are
Russian-speaking” − 46.5%). More than half (54.7%) of
representatives of that group affiliate themselves with the
Russian cultural tradition.
Among the attributes of the common Crimean
identity, representatives of that group more often
referred to “a common language used by the majority
of Crimeans is Russian”, “common Motherland is
Crimea”, “a positive attitude to Russia”, “tolerable
attitude to representatives of all nationalities and faiths
living in Crimea”, “negative attitude to NATO”, “own
territory is Crimean peninsula”, “desire to see Ukraine
in a union with Russia and Belarus”. That is, the stand of
representatives of that group is very much similar to that
of the Slavic community.
However, by contrast to the Slavic community and
Crimean Tatars, a relative majority (44.2%) of that group
consider themselves representatives of the Ukrainian
political nation7.
So, social processes in Crimea, the public life in
different domains (cultural, social, political, etc.)
are largely determined by the character of relations
between two socio-cultural groups – Crimean Tatars
and the Slavic community. At that, for representatives of
the Slavic community and “other”, the most important
individual criterion of social self-identification is
presented by the language criterion (“we are Russianspeaking”)
as a symbol of affiliation with the “Russian
world”, while for Crimean Tatars – the confessional
criterion (“we are Muslims” or “we are members of
Ummah”).
The Crimean regional identity generally prevails
among the Crimeans. It dominates in all sociocultural
groups. The prevalence of the local identity
makes many representatives of all socio-cultural
groups sure that all Crimeans, irrespective of their
ethnic origin, have common traits differing them
from Ukrainians, Russians, representatives of other
nations.
Meanwhile, there are two evidently different
approaches to the building of the Crimean community:
“Crimean Tatar” and “pro-Russian”. The former
rests on the comprehension of the territorial, historic,
civic unity and the need of national tolerance (with
restoration of rights of the Crimean Tatar people);
the latter (supported by the majority of the Crimean
population) mainly relies on association of the Crimean
community with the “Russian world” (with a negative
perception of stay in Ukraine).
In such conditions, there can be no talk of the
existence of a “single Crimean community” as a real,
not declared Crimean identity, since the ideas of the
principles of its building in Crimean Tatars and pro-
Russian Slavic community are too different. Rather,
it goes about the formation of two communities, two
identities – Crimean Tatar and Slavic.
The majority of representatives of the Slavic
community do not consider themselves representatives
of the Ukrainian political nation. Among Crimean
Tatars, the majority were undecided on that issue,
possibly because they still do not feel integrated into
Ukrainian society. The survey results leave place for the
assumption that the spread of Islamist views is related
with the non-integration of Crimean Tatars into both
the Ukrainian and Crimean society.
Furthermore, support or non-support for Islamist
principles by Crimean Tatars seriously influences their
self-identification and perception of the key social
problems.
The main socio-cultural communities of Crimea are
in unequal socio-economic conditions. The standing of
Crimean Tatars is evidently worse, which affects their
social comfort and may pose a factor of destabilisation
of the situation in Crimea.
CRITERIA OF DISTINCTION OF SOCIO-CULTURAL
COMMUNITIES IN CRIMEA
1. Crimean Tatars (by self-identification) (9.1% all of those
polled).
2. Slavic community (58.7% all of those polled)
Ethnic Russians and Ukrainians, who:
• consider Russian their native language;
• speak Russian at home;
• do not affiliate themselves with the Ukrainian, Crimean Tatar or
other ethnic cultural tradition;
• agree that there is actually no difference between ethnic
Russians and Ukrainians in Crimea and they make one sociocultural
community;
• when asked about religious affiliation, report that they are
Orthodox, or just Christians, or do not affiliate themselves with
any confession.
3. Other – all respondents not included in the two former groups
(32.2% all of those polled).
In that group, we also distinguished the group of “Crimean
Ukrainians” (6.5% all of those polled) − ethnic Ukrainians who do
not share the opinion that there is actually no difference between
Russians and Ukrainians in Crimea and they make one socio-cultural
community.
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
8 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
SOCIAL STATUS
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Civil pensioners 26.5 25.7 26.3 26.9 27.1
Specialist in humanitarian sciences (incl. economists, lawyers,
specialists in education, arts, healthcare, etc.) 12.5 7.1 13.2 12.8 14.7
Pupil, student 10.4 12.6 11.2 8.2 15.5
Housewife 9.1 13.7 8.4 9.0 5.4
Skilled worker 8.9 4.9 10.4 7.4 5.4
Businessman 5.9 9.3 5.0 6.6 10.9
Employee 5.8 6.0 5.7 5.7 3.9
Off-the-job (not registered as unemployed) 4.2 8.7 3.0 5.3 4.7
Unskilled worker 3.9 1.6 4.3 3.7 6.2
Technical specialist 2.3 0.5 2.4 2.3 3.9
Specialist in natural sciences 1.4 1.1 1.6 1.1 0.0
Head (manager) of the department of an enterprise 1.1 0.0 1.4 0.9 0.8
Disabled (incl. invalids) 0.8 0.5 0.7 1.1 0.0
Officially registered as unemployed 0.8 3.3 0.7 0.5 0.0
Navy servants, servants of the State Security Service, Ministry
of Internal Affairs of Ukraine 0.7 0.0 0.9 0.5 0.0
Agricultural worker 0.6 0.5 0.3 0.9 0.8
Pensioner of the Soviet Army, Navy 0.5 0.0 0.5 0.6 0.0
Pensioner of the Ukrainian Army, Navy 0.3 0.0 0.3 0.3 0.0
Pensioner of the Russian Army, Navy 0.3 0.5 0.3 0.2 0.0
Head (manager) of the enterprise, establishment 0.2 0.0 0.1 0.6 0.0
Farmer, tenant 0.2 0.0 0.4 0.0 0.0
Servant of the Armed Forces of the Russian Black Sea Fleet 0.1 0.0 0.2 0.2 0.0
Other 2.3 3.3 2.1 2.2 0.0
Did not answer 1.2 0.7 0.6 3.0 0.7
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RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 9
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
FOR HOW LONG HAVE BEEN LIVING IN CRIMEA
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean Ukrainians
Born in Crimea 66.0 34.2 75.8 57.1 55.7
Moved to Crimea before 1944 2.7 0.5 3.4 2.2 1.5
Moved to Crimea during 1944-1954 4.3 0.5 4.6 4.8 7.6
Moved to Crimea during 1955-1969 9.2 3.3 7.9 13.1 17.6
Moved to Crimea during 1970-1980 9.3 16.8 5.8 13.4 10.7
Moved to Crimea in 1990s 5.1 33.7 0.8 4.9 3.8
Moved to Crimea in 2000s 1.7 5.4 0.9 1.9 3.1
Hard to say/did not answer 1.7 5.6 0.8 2.6 0.0
FOR HOW LONG HAVE REPRESENTATIVES OF PREVIOUS GENERATIONS
(parents, grandparents, etc.) BEEN LIVING IN CRIMEA
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean Ukrainians
Lived in Crimea before 1944 47.5 77.2 50.0 34.5 21.4
Moved to Crimea during 1944-1954 11.9 0.5 14.6 10.2 8.4
Moved to Crimea during 1955-1969 13.2 2.7 12.4 17.5 26.7
Moved to Crimea during 1970-1980 7.7 6.0 6.8 9.9 14.5
Moved to Crimea in 1990s 1.5 4.9 1.3 1.1 0.8
Moved to Crimea in 2000s 0.6 0.5 0.7 0.3 0.0
Representatives of previous generations
do not live and did not live before in Crimea
8.5 1.6 6.0 14.8 13.7
Hard to say/did not answer 9.1 6.6 8.2 11.7 14.5
SETTLEMENT TYPE
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean Ukrainians
Town with population of 100-999 thousand persons 44.3 37.0 46.3 42.9 39.2
Town with population of 50-99 thousand persons 7.8 5.4 8.1 7.7 1.5
Town with population of 20-49 thousand persons 2.8 0.5 3.6 2.2 0.0
Town with population less than 20 thousand persons 0.7 0.0 1.3 0.0 0.0
Urban-type settlement 12.5 15.8 12.6 11.4 13.8
Village 31.8 41.3 28.1 35.8 45.4
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10 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
SPECIFICITIES OF SELF-IDENTIFICATION OF SOCIO-CULTURAL COMMUNITIES Annex 1
What group of people you can say about “That is us”, in the first place?
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60 and
over
Male Female
We are Russian-speaking 54.0 2.7 66.0 46.5 34.6 54.6 51.3 55.6 53.1 55.0 54.2 54.4
We are Orthodox 26.9 5.4 29.8 27.7 26.9 25.7 27.4 24.4 27.7 28.7 26.2 27.6
We are the representatives of our nationality 8.9 20.7 3.0 16.2 19.2 8.6 9.8 9.3 9.6 7.7 8.7 9.3
We are Muslims 5.8 61.4 0.0 0.8 0.8 6.3 6.6 6.0 6.2 4.5 6.8 5.1
We are the representatives of ummah
(the world’s Muslim community)
0.6 6.5 0.0 0.0 0.0 0.0 0.3 0.8 0.3 1.5 0.6 0.6
None of the listed 2.1 1.1 0.5 5.4 13.8 1.9 2.0 3.3 2.0 1.7 2.8 1.6
Hard to say 1.7 2.2 0.7 3.4 4.7 2.9 2.6 0.6 1.1 0.9 0.7 1.4
With what cultural tradition do you associate yourself?
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
Russian 61.4 0.5 74.6 54.7 46.9 73.7 70.1 58.0 54.9 49.5 60.6 62.2
Soviet 18.8 1.6 21.3 19.0 13.1 5.8 10.9 19.0 25.1 32.8 17.6 19.9
Crimean Tatar 8.7 91.9 0.0 0.9 0.8 9.2 8.6 8.5 9.3 8.3 10.0 7.9
Ukrainian 3.4 1.6 0.0 10.0 15.4 2.1 3.2 2.5 4.2 5.1 3.3 3.4
Pan-European 3.4 1.6 2.0 6.5 10.8 2.9 4.3 6.3 3.7 0.9 4.7 2.5
Other 0.2 0.0 0.0 0.6 0.0 0.4 0.0 0.0 0.6 0.0 0.2 0.2
Hard to say 4.1 2.8 2.1 8.3 13.0 5.9 2.9 5.7 2.2 3.4 3.6 3.9
What of the following do you connect (identify) yourself with, in the first place?
% of the polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60 and
over
Male Female
With the region – Crimea 35.6 38.3 35.9 34.4 41.5 39.0 39.2 37.5 31.8 30.8 35.2 36.4
With town or village 26.5 15.8 25.6 31.0 27.7 25.6 24.8 23.8 29.0 28.8 26.9 26.2
With Russia 14.4 10.9 16.6 11.3 5.4 11.7 13.8 16.2 14.6 15.6 13.6 15.2
With Soviet Union 9.5 0.5 11.7 8.2 4.6 10.7 6.9 6.0 9.3 12.8 10.1 9.1
With Ukraine 5.5 2.7 3.6 9.6 15.4 4.0 7.2 7.4 6.2 4.1 5.8 5.4
With Europe 0.3 0.5 0.2 0.5 0.8 0.6 0.0 0.3 0.6 0.0 0.5 0.2
Other 2.0 9.3 0.6 2.5 0.8 1.3 2.9 1.4 3.9 1.1 1.6 2.2
Hard to say 6.2 22.0 5.8 2.5 3.8 7.1 5.2 7.4 4.6 6.8 6.3 5.3
With what of the following statements do you agree more?
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
Crimea is both Ukraine and Russia 32.8 23.9 34.8 31.9 26.7 31.8 29.7 35.6 32.0 34.8 33.1 32.9
Crimea is Russia 30.9 4.3 40.2 21.6 10.7 29.7 28.2 26.5 31.4 37.6 29.9 32.1
Crimea is neither Ukraine nor Russia 16.5 35.3 13.0 17.3 19.1 17.6 20.5 18.0 14.7 12.4 17.1 16.3
Crimea is Ukraine 9.8 14.7 5.1 17.1 26.7 11.1 10.1 10.5 9.9 7.9 9.9 9.9
With any of the statements 3.8 4.3 1.6 7.7 12.2 2.7 5.2 3.6 5.4 2.8 4.3 3.6
Hard to say 6.2 17.5 5.3 4.4 4.6 7.1 6.3 5.8 6.6 4.5 5.7 5.2
What group of people you can say about “That is us”, in the first place?
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60 and
over
Male Female
We are Crimeans 61.5 78.3 65.4 50.0 33.1 69.7 68.8 67.9 55.1 48.1 63.7 61.4
We are citizens of the former Soviet Union 19.8 1.1 22.3 20.7 15.4 4.8 9.5 16.2 28.0 39.5 19.4 20.5
We are citizens of Ukraine 10.4 7.6 7.4 16.7 31.5 14.0 10.6 9.6 10.2 6.6 9.5 10.9
We are Europeans 2.4 3.3 1.5 3.7 6.2 4.6 2.9 1.9 1.4 1.3 2.7 2.3
None of the listed 2.2 6.5 0.8 3.4 8.5 2.7 2.0 1.6 2.3 2.1 2.4 2.1
Hard to say 3.7 3.2 2.6 5.5 5.3 4.2 6.2 2.8 3.0 2.4 2.3 2.8
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 11
ANNEX 1
Do you think that all Crimeans, regardless of their
ethnic background, have common traits which
distinguish them from Ukrainians, Russians,
representatives of other nations?
% of those polled
Crimean Tatars
Slavic community
Other
Crimean Ukrainians
Age
(Crimea)
Gender
(Crimea)
18-29
30-39
40-49
50-59
60 and
over
Male
Female
Yes 38.3 41.0 47.8 45.0 36.6 43.7 45.1 44.5 46.2 42.3 44.1
No 30.1 35.1 34.0 38.2 35.4 35.1 34.6 34.6 31.8 35.4 33.5
Hard to say 31.6 23.9 18.2 16.8 28.0 21.2 20.3 20.9 22.0 22.3 22.4
Do you think that existence of these common traits can lead
in the future to the formation of a single community –
Crimean nation?
% of those polled
Crimean Tatars
Slavic community
Other
Crimean Ukrainians
Age
(Crimea)
Gender
(Crimea)
18-29
30-39
40-49
50-59
60 and over
Male
Female
Yes 43.2 36.9 35.2 28.5 33.0 35.3 39.3 38.4 39.2 37.9 36.9
No 23.5 26.1 35.1 42.3 24.0 28.7 32.7 28.0 31.0 29.2 28.4
Hard to say 33.3 37.0 29.7 29.2 43.0 36.0 28.0 33.6 29.8 32.9 34.7
How do you think, are Russians and Ukrainians one nation
(socio-cultural community), or they are
two different nations?
% of those polled
Crimean Tatars
Slavic community
Other
Crimean Ukrainians
Age
(Crimea)
Gender
(Crimea)
18-29
30-39
40-49
50-59
60
and over
Male
Female
One nation 40.8 65.7 42.0 26.0 53.3 56.5 55.2 52.4 60.7 56.7 55.2
Two
different
nations
38.6 29.5 43.1 61.8 34.5 33.7 36.0 37.2 32.9 34.4 34.9
Hard
to say
20.6 4.8 14.9 12.2 12.2 9.8 8.8 10.4 6.4 8.9 9.9
Do you consider yourself a representative of Ukrainian
nation to which, according to the Constitution of Ukraine,
belong citizens of Ukraine of all nationalities?
% of those polled
Crimean Tatars
Slavic community
Other
Crimean Ukrainians
Age
(Crimea)
Gender
(Crimea)
18-29
30-39
40-49
50-59
60
and over
Male
Female
Yes 20.7 27.3 44.2 59.5 35.2 34.8 29.9 29.3 30.6 33.4 32.5
No 23.9 44.2 34.6 21.4 32.5 37.6 44.1 40.6 42.6 38.8 41.4
Hard to say 55.4 28.5 21.2 19.1 32.3 27.6 26.0 30.1 26.8 27.8 26.1
12 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
How important for self-sentiment of Crimeans as a unified community is each of the following features?*
average mark
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60 and
over
Male Female
Common language being used by the
majority of Crimeans is Russian
4.69 4.29 4.87 4.45 4.26 4.67 4.68 4.68 4.67 4.73 4.64 4.72
Common Motherland is Crimea 4.58 4.75 4.69 4.34 4.16 4.57 4.53 4.57 4.61 4.62 4.57 4.59
Positive attitude to Russia 4.55 4.11 4.76 4.29 3.96 4.54 4.56 4.57 4.54 4.56 4.55 4.55
Own territory is Crimean peninsula 4.50 4.69 4.62 4.20 3.90 4.53 4.49 4.47 4.53 4.46 4.48 4.51
Negative attitude to NATO 4.45 3.82 4.67 4.20 3.86 4.38 4.39 4.47 4.45 4.57 4.42 4.48
Desire to see Ukraine in union with Russia
and Belarus
4.45 3.58 4.73 4.19 3.88 4.38 4.44 4.49 4.34 4.60 4.43 4.47
Tolerable attitude to representatives of all
nationalities and faiths living in Crimea
4.42 4.52 4.50 4.25 3.95 4.45 4.40 4.36 4.40 4.47 4.40 4.43
Common Crimean holidays 4.32 4.32 4.50 3.98 3.59 4.27 4.28 4.35 4.32 4.39 4.31 4.33
Desire to strengthen Crimean autonomy from
Ukraine
4.31 4.21 4.50 3.99 3.80 4.39 4.25 4.33 4.26 4.30 4.33 4.30
Famous historic personalities connected
with Crimea
4.30 4.22 4.51 3.92 3.68 4.31 4.22 4.30 4.24 4.38 4.32 4.28
Common history 4.29 4.39 4.44 3.99 3.76 4.33 4.26 4.36 4.21 4.29 4.29 4.30
Common traditions, customs 4.20 4.10 4.40 3.86 3.43 4.29 4.14 4.30 4.10 4.16 4.19 4.21
Authorities, Constitution of the AR of Crimea,
official symbols of the AR of Crimea: Emblem,
Flag, Anthem, etc.
4.16 4.19 4.34 3.81 3.64 4.22 4.10 4.18 4.12 4.15 4.18 4.14
Belonging to Orthodox church 4.12 3.57 4.42 3.68 3.20 4.15 4.09 4.10 4.08 4.17 4.09 4.15
Historic names of localities, geographic
names
4.06 4.53 4.16 3.72 3.53 3.94 4.00 4.13 4.04 4.18 4.07 4.04
Negative attitude to being a part of Ukraine 3.99 3.65 4.25 3.60 3.22 4.02 3.94 3.96 3.97 4.05 3.97 4.01
Positive attitude to the Soviet past 3.95 3.75 4.11 3.70 3.62 3.86 3.86 4.07 3.94 4.03 3.98 3.93
Common psychology, national character 3.90 4.33 4.05 3.51 3.35 3.94 9.84 3.94 3.76 3.96 3.90 3.89
Ukrainian citizenship 3.53 4.46 3.44 3.44 3.19 3.46 3.50 3.57 3.58 3.54 3.52 3.53
Perception of current status of Crimea as a
part of Ukraine
3.42 4.12 3.42 3.24 3.04 3.43 3.41 3.41 3.48 3.39 3.41 3.43
* On a five-point scale from 1 to 5, where “1” means “not important at all”, and “5” – “very important”.
With what religion are you affiliated?
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
Orthodoxy 76.5 1.1 90.5 72.3 81.7 73.9 77.5 78.8 74.4 78.0 74.3 78.1
Islam 9.5 97.8 0.0 1.7 0.0 9.8 9.2 9.6 10.1 8.8 10.7 8.7
I am just Christian 5.4 0.0 3.9 9.7 7.6 5.8 4.3 4.7 5.4 6.4 4.2 6.3
Roman Catholicism 0.4 0.0 0.0 1.1 0.0 0.2 1.2 0.3 0.3 0.0 0.6 0.2
Greek Catholicism 0.2 0.0 0.0 0.6 0.0 0.2 0.0 0.6 0.0 0.2 0.2 0.2
Protestantism 0.2 0.0 0.0 0.8 0.0 0.6 0.0 0.0 0.6 0.0 0.5 0.1
Judaism 0.2 0.5 0.0 0.6 0.0 0.0 0.0 0.6 0.6 0.2 0.2 0.3
Buddhism 0.0 0.0 0.0 0.2 0.0 0.2 0.0 0.0 0.0 0.0 0.1 0.0
Hinduism 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0
Paganism 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0
Other 0.0 0.0 0.0 0.2 0.0 0.2 0.0 0.0 0.0 0.0 0.0 0.1
I am not affiliated with any religion 7.5 0.5 5.6 11.4 10.7 9.0 7.5 4.7 7.9 6.0 8.5 5.8
Did not answer 0.1 0.0 0.0 1.4 0.0 0.0 0.3 0.8 0.8 0.4 0.7 0.3
With which Orthodox denomination are you affiliated?
% of those who consider themselves Orthodox
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
Ukrainian Orthodox Church 49.1 0.0 53.3 39.4 41.9 45.8 45.9 49.0 54.5 51.0 50.0 50.2
I am just Orthodox 45.8 0.0 43.5 51.4 48.6 50.0 47.0 46.5 41.7 43.0 46.6 46.3
Ukrainian Orthodox Church - Kyiv Patriarchy 2.2 0.0 0.5 6.2 6.7 2.0 3.7 1.7 1.5 2.5 2.3 2.2
Ukrainian Autocephalous Orthodox Church 0.1 0.0 0.2 0.0 0.0 0.6 0.0 0.0 0.0 0.0 0.2 0.1
Do not know 2.7 0.0 2.6 3.0 2.9 1.6 3.4 2.7 2.2 3.6 0.9 1.2
ANNEX 1
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 13
1.2. SPECIFICITIES OF COMMUNICATION AND
CONFLICT POTENTIAL IN RELATIONS
BETWEEN DOMINANT SOCIO-CULTURAL
GROUPS
The nature and forms of relations between different
socio-cultural groups depend on the specificity of their
self-assessments and mutual perception, stereotypes and
biases, ability to understand the opinions and needs of the
other group.
Each of the main socio-cultural groups has a specific
set of perceptions of moral and socio-psychological
features of itself and of other groups it coexists with. The
content of those perceptions exerts direct influence on
the relations between representatives of those groups.
Similarly, each of those groups has its opinion of
sensitive for its self-identification issues concealing a
conflict potential in relations between them. Such issues
in the Crimean context include: language, assessments of
certain historic events, values and symbols, ideas of the
autonomy’s future.
Assessment of specific features of representatives
of different socio-cultural groups8
Self-assessment and assessment of other communities
by Crimean Tatars. Representatives of Crimean Tatars
ascribe to their national community such positive traits
as goodwill, religiousness, ability to defend their own
interests; less intrinsic are the striving for justice, hardworking,
ability to understand the interests of others.
Specific of Russians, as seen by Crimean Tatars,
are goodwill, striving for justice, hard-working, to a far
smaller extent – religiousness, national unity.
Among the main good features of Ukrainians, Crimean
Tatars mentioned hard-working, openness, religiousness,
ability to defend their own interests; the least inherent –
striving for justice.
By and large, Crimean Tatars tend to ascribe to
Ukrainians more positive qualities than to Russians.
However, they more readily ascribe all positive qualities
to their own community than to the other two mentioned
communities.
Results of discussions in focus groups made
up (separately) of ethnic Russians, Ukrainians and
Crimean Tatars show that Crimean Tatars treat
Russians and Crimean Ukrainians rather tolerantly
and amicably. The tension arising in communication is
usually attributed to the historic heritage in the form
of distorted stereotypes of mutual perception, negative
media reports, etc. At that, they note that in everyday
life, relations will gradually normalise when people
better know each other.
8 See Table “Specificities of identity of dominant socio-cultural groups of Crimea”, pp.22-28 of this magazine.
What of the listed is obligatory for every Muslim?*
% of Muslims
CRIMEA Crimean
Tatars
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
Sadaka (voluntary donations and alms to the poor) 50.7 50.0 52.2 48.5 50.0 58.3 43.9 48.4 52.5
Salat (namaz) (five prayer) 49.5 49.2 42.6 53.1 54.3 47.2 52.5 50.0 49.0
Sawm (the fast of the month of Ramadan) 43.7 42.5 44.7 37.5 50.0 41.7 43.9 54.3 33.7
Shahadah (pronouncing words of declaration of belief) 32.5 30.6 25.5 34.4 31.4 30.6 40.0 32.3 32.7
Hajj (piligrimage to Mecca) 18.0 16.0 14.9 15.2 25.0 19.4 17.1 18.3 18.2
Zakat (obligatory tax at a fixed rate in proportion to the worth of property, collected
from the well-to-do and distributed among the poor Muslims)
14.8 12.7 10.6 15.6 11.4 25.0 12.2 15.2 14.1
Nothing of the listed 0.7 0.6 2.1 0.0 0.0 0.0 0.0 0.0 1.0
Hard to say 3.2 3.3 6.4 3.0 2.8 2.8 2.5 2.2 4.0
* Respondents were asked to mark all acceptable answer variants.
Which of the three assertions listed below corresponds the most to your own convictions?
% of Muslims
CRIMEA Crimean
Tatars
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
A faithful Muslim is to obey the commandments of Islam, at the same time being a
loyal citizen of his country
50.5 50.6 54.2 42.4 55.6 48.6 45.0 54.3 48.0
A faithful Muslim is to obey the commandments of Islam, and work for renewal of
Caliphate (World Islamic state)
25.1 25.6 27.1 36.4 16.7 18.9 27.5 23.9 26.5
A faithful Muslim is to obey the commandments of Islam, at the same time striving
to rebuild the country he is living in according to the principles of Islam
20.4 20.0 14.6 18.2 19.4 27.0 25.0 18.5 22.4
None of the listed 1.1 1.1 2.1 0.0 2.8 2.7 0.0 1.1 1.0
Hard to say 2.9 2.7 2.0 3.0 5.5 2.8 2.5 2.2 2.1
14 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
Т: “After the mass arrival of Tatars, the situation began to
stabilise little by little. People began to see Tatars as their neighbours.
Now, my Ukrainian friends say: “Tatars are hard workers, hospitable
people, always ready to help”.
Т: “In everyday life, everything is more or less good, all talk to each
other. The mistrust observed 20 years ago is beginning to fade away”.
Т: “If we come back to the Russian people, it is openness,
amicability, support”.
Т: “Russians are very quiet people, they are very passive in
Crimea, posing no threat, they are immigrants. The authorities have
always decided instead of them, that is why they are not dangerous.
While previously, they were reserved, let nobody on threshold, now,
as I come, they right let a man in, serve coffee. Rather industrious,
many learned people you can talk to”.
Т: “The more you deal with Russians, the better. They are
sympathetic at work. Treat little children with awe”.
By and large, Crimean Tatars clearly distinguish
perception of Russians (and Ukrainians) in everyday
life and in public. In the former case, they are generally
viewed as equals, facing the same troubles as Crimean
Tatars, which makes it easy to come to terms with them,
in principle.
Publicly, Crimean Tatars associate Russians with
the deportation of their people and identify them with
the Crimean authorities, treated mainly negatively. For
Crimean Tatars, the authorities – central to the smaller and
local to the greater extent – are a source of violation of
their rights. Regarding the growth of tension in inter-ethnic
relations, a great deal of fault was vested on radical Slavic
(mainly, Cossack) organisations, and on some mass media.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
Т: “When I graduated from the institute, nobody took me to
work here, on national grounds, so I had no record of work. They
did not say it to me outright but this was felt at conversations,
meetings”.
Т: “It so happens in Crimea that if a Tatar is appointed minister,
his deputy can never be Tatar. This is also discrimination, because
selection should be made by professional qualities”.
Т: “My father had an accident in 2001 – he was hit [by a car]. We
went to the investigator who … spoke rudely to us. They arranged
different tests, invented some rain. Then they said that he was in
dark clothes, and there was a young man driving, not the one they
showed him”.
T: “In 2003, before the election of the President of Ukraine,
skinhead structures appeared here. Right here, in Crimea. First, there
were cases of attacks on Palestinians, than on Armenians, than on
Crimean Tatars… My personal opinion is that it is a Russian project,
used before elections to divide society into several parts... And
those Cossacks … It is an organised group of people that can be set
against, creating a conflict situation”.
Т: “The situation is provoked, Cossacks are used to pull down
tent camps, our guys are treated badly”.
Т: “Such political figures as… (a Crimean politician – Ed.) also
speak up from time to time and stir up the situation. Before the
elections… (a Crimean politician – Ed.) spoke on Lenin square and
said that if you elect Yuschenko, tomorrow NATO will be here and
will trample you Russians down, if Yuschenko comes, there will be
only Crimean Tatars here, while Russians will be deported. There is a
video recording but those people are not brought [to responsibility,
although] this is clear destabilisation in the region, and it is deputies
who do this”.
While in everyday life, Ukrainians are seen by
Crimean Tatars on par with Russians (although Crimean
Tatars disapprove assimilation of Ukrainians), publicly,
Crimean Tatars distinguish Ukrainians from Russians
and treat them more positively, since they, in the opinion
of the focus group participants, from the very\beginning
positively treated Crimean Tatars. However, this refers to
Ukrainians by and large rather than Crimean Ukrainians.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
Т: “I also noted that the Ukrainians I meet consider themselves
Russians. They are shy to speak Ukrainian and sometimes oppose
the Ukrainian language more than Russians do”.
Т: “I do not like that, one should not forget his ancestors.
Otherwise, they are kind people”.
Т: “Ukrainians may claim to be Ukrainians but try to think and act
like Russians. If one asks: “You are Ukrainian, why do you act like
that?”, he says “It is better for me this way, more convenient”.
Т: “They were simply said that they were Russians for 70 years,
and such life stereotype arose”.
Т: “Good for them, they treated us well from the very beginning.
The only [bad] thing is that they are absent here, despite the claimed
23%”.
Т: “After resettlement to Crimea, my sister’s family lived a whole
winter in a Ukrainian family. They even now maintain good relations”.
Т: “Russians are viewed by Crimean Tatars as a people involved
with deportation. Next, Tatar stereotypes: mistrust in any authorities,
because Crimean Tatars were not let to power. And today, Russians
are in power in Crimea. Regarding Ukrainians, many Crimean Tatars
took a pro-Ukrainian stand”.
Self-assessment and assessment of other
communities by Slavs9. In the opinion of representatives
of the Slavic community, the main good features of
Russians are goodwill, openness, striving for justice, while
the least inherent traits are religiousness, ability to defend
their own interests and national unity. Focus group results
also demonstrate low assessments of the national unity of
Russians and their ability to defend their interests.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
R: “We Russian-speakers are just kind of calm, quiet. Tatars need
not be compelled to rise. If you just tell them at 8 AM, they all stand
at 10:00 … We are not”.
Moderator: “What is good in the nature of a Russian man?”
R: “They tolerate long”.
R: “I just wanted to say, patience. No matter whom, they tolerate,
I do not know why”.
R: “Slavs! Slavs keep on tolerating. We are very patient: we are
humiliated, to tell the truth, and lowered our heads”.
Moderator: “And what traits do you consider negative in
Russians?”
R: “We have no negative traits”.
R: “May I mention tolerance?”.
R: “And plenty of love, because we can love, carouse, suffer –
all from the heart”.
Representatives of the Slavic community consider
more specific of Crimean Tatars their ability to defend
their own interests, national unity, feeling of national pride
and religiousness, less – the ability to understand interests
of others and openness.
9 Analysing the answers of representatives of the Slavic community, one should keep in mind that their assessments of the ethnic groups of Russians and
Ukrainians to some extent (dependent of the share of representatives of each ethnos in that socio-cultural community) present a self-assessment, while
assessments of Crimean Tatars characterise their attitude to “other”.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 15
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
During focus group discussions, Russians mainly
negatively described Crimean Tatars, stressing that their
unity in the defence of their interests, in the opinion of the
panellists, often goes together with aggressiveness towards
representatives of other nations. Negative assessments of
Crimean Tatars also prevailed in the Ukrainian focus groups.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
R: On Crimean Tatars: “what Russians call baseness, they call wisdom,
cunning… Many Turcomans, not only Crimean Tatars …, actually all.
Evidently, the roots are somewhere in Islam. Just in religion”.
R: “I can tell you what Tatars exactly are: ill-mannered crumps,
they behave like kings of the nature”.
R: “Another trait, kind of instilled – permissiveness”.
R: “They are indeed well-organized to go out to meetings, we all
see this regularly”.
R: “If you touch Tatars, they get organised very quickly. And will
override us, trample us down”.
U: “I would call them more aggressive. Stay here till the 18th of
May [mourning meeting in commemoration of victims of deportation –
Ed.], and we will see what you say”.
U: “Aggressiveness is bad, the ability of Tatars to achieve what
they want is good to me. Not all methods are good though”.
U: “We all go to market. Who sells radishes? And who resells
it? Did any Russian buy radishes from a Tatar [for resale]? Their
industriousness, mainly Tatars trade in the market, but this does not
mean that they grow all this”.
U: “I want to intercede. A Tatar laid tiles in my bathroom … “clever
fingers” – laid tiles like that. Earning for his family… He may shoot,
too, if something happens”.
Although Russians in focus groups mentioned
aggressiveness of Crimean Tatars, they also admitted
aggression on the part of representatives of the Slavic
community. They also noted the negative role of politicians
in the instigation of inter-ethnic conflicts. However,
negative descriptions of Crimean Tatars prevailed, there
were even statements of the need to evict them and fears
that “they will evict us”.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
R: “My neighbour was beaten up. They just took him for a Tatar,
although he is a Jew. A mob gathered… Beat him up on purpose,
abused, called him Tatar, so and so”.
Moderator: “Between representatives of what nationalities did such
problem situations arise?”
R: “It appears, Orthodox and Muslim”.
R: “We now mainly have conflicts … from the Crimean Tatar
population”.
R: “I never had a conflict with anyone. My opinion about this… we
are all people. Every nation has good and bad people. No matter who
you are: Russian, Ukrainian or Tatar. People are susceptible to influences,
someone said something into the microphone – and they all run as a mob
to beat Russians, or Tatars, or Ukrainians, or, all together, Jews”.
R: “Yes, this is done intentionally, such is my opinion. They above
designed it, and we here live with all that”.
R: “Poor Russians, for Tatars, we are not humans, for Ukrainians,
we are inferior, a minority, I want to feel like human”.
R: “They [Crimean Tatars] came here to dictate… They came here
as masters”. “They came offended, misfortunate, deported. In their
opinion, it is not Stalin who is to blame, not the regime but we all
are to blame, because we appeared here somehow… They came as
masters, we are inferiors for them, they always look at us, well, as if –
when they have a leader who will pack us in trains… Say, I certainly
dislike, … dislike their, as I put it, those extremes (Islam). My God,
you cannot evict them somewhere! Previously, there was Russia,
the Soviet Union, a lot of space, but where here in Small Russia?”
R: “Western Ukraine loves them a lot”.
R: “Send them there!”
R: “Tatars do not understand, on one hand, that Ukrainians,
especially nationalists, first, fight Moscovites, and then: “Wait
comrades, you are not that many, we will deal with you later”.
R: “Have you heard anything about the united Arab Caliphate, that
idea now in the air? And how much money the Islamic world “plugs” in
that subject: Tatar problem, creation of that Caliphate, that crazy idea”.
R: “We will give you money, but you, if something happens, will
go kill Russians”.
Representatives of the Slavic community mentioned
among the main virtues of Ukrainians national pride,
hard working and amicability, least of all – openness.
By and large, by assessments of representatives of the
Slavic community, all good qualities are manifested in
Ukrainians more evenly than in Russians and Crimean
Tatars.
The results of focus groups show that Russians
distinguish Ukrainians living in Crimea from those
living in other regions of Ukraine, stressing that “ours”,
i.e., Crimean Ukrainians “are just like us”. Meanwhile,
assessments of Ukrainians are influenced by the
stereotypes of perception of “Western Ukrainians”:
Russians consider them “nationalists”, imparting that
term a negative meaning (“they, Western, are certainly
terrible nationalists”).
This fact may lead to extension, transfer of
assessments of Western Ukrainians to “locals”. As a result,
representatives of the Slavic community, suggesting that
there is actually no difference between Russians and
Crimean Ukrainians, more rarely than Russians ascribe
to Crimean Ukrainians the qualities undoubtedly seen as
positive (goodwill, openness, ability to understand the
interests of others, striving for justice). The assessment
of Ukrainians may also be influenced by the negative
perception of Ukrainisation.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
R: “We have no Ukrainian people here, I at least never met them.
Never met them, as a people. Some individuals, but just some –
they consider themselves residents of Crimea – and do right”.
R: “Even if they are Ukrainians, they do not consider themselves
such”.
Moderator: “What good traits of the Ukrainian national character,
Ukrainians, could you mention in the first instance?”
R: “Good – singing”.
R: “I do not see a single good trait. I live in Ukraine, that is why
I do not see a single good trait”.
R: “I dislike [the Ukrainian people] … I try to avoid Ukrainians.
Because I do not know the Ukrainian language, I do not learn it
on principle… do not read, do not watch Ukrainian movies. What
I dislike about Ukrainian is that I am forced to listen… to the radio
only in the Ukrainian language…. I cannot stand them, dislike with
all of my soul”.
R: “Genuine Ukrainians” are all rather amicable, hospitable,
always ready to share”… For me, Ukrainians are anyway divided
into Western and “ours” who, in my opinion, are just like us”.
R: “I am very happy that so far, they [nationalists] still keep
in Western Ukraine… For instance, I would be happy [to divide
Ukraine] right along the Dnieper, in a civilized way, all willing, even
Kyiv might be given [to Poland]”.
Meanwhile, Ukrainians in focus groups demonstrated
rather a vague idea of their national identity and
unwillingness to be distinguished as a separate national group.
16 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
U: “The specific character of Ukrainians and Russians in Crimea
may be termed “Crimean patriotism”.
U: “My personal opinion is that people should not be divided by
nationality”.
U: “I studied at a university, department of Ukrainian language
and literature, and till the junior year we did not know who Russian
was, who – Ukrainian, although there were Crimean Tatars, too. We
never divided”.
U: “I am more frightened when we Ukrainians are set against
Russians”.
U: “I guess that neither Russian nor Ukrainian have a specific
character”.
Knowledge of cultures of Crimea’s peoples
and interest in them
Representatives of the main socio-cultural groups of
Crimea belong to different cultural traditions. That is why
mutual knowledge of their cultures, traditions, customs,
and desire to learn more are important for maintenance
of an inter-cultural dialogue, mitigation of tension in
relations.
Crimean Tatars demonstrated the best knowledge of
the culture of their people – the overwhelming majority
of them know a lot about it, while the number of those
who know little is meagre. They also reported rather good
knowledge of the culture of Russians and Ukrainians,
of which the overwhelming majority of Crimean Tatars
knows much or “something”.
The overwhelming majority of Crimean Tatars is highly
interested or tends to be interested in the cultures of other
peoples of Crimea. Among peoples of whose culture they
would like to learn more, they mainly mentioned Karaites
and Greeks, less often – Krymchaks and Germans, and
very rarely – Ukrainians and Russians (maybe because
Crimean Tatars consider their knowledge in that field deep
enough).
The overwhelming majority of representatives of the
Slavic community reported good knowledge of the culture
of Russians and Ukrainians. Far fewer reported good
knowledge of the culture of Crimean Tatars, while more
than half have some knowledge of it.
Meanwhile, they are more than Crimean Tatars eager
to learn more about the culture of other peoples. They
mainly reported the desire to learn more about the culture
of Karaites and Krymchaks, less – Greeks and Bulgarians,
but quite many would like to learn more about the culture
of Crimean Tatars, Russians and Ukrainians alike.
Stand of socio-cultural groups in the language issue
There are only two numerous language groups in
Crimea – Russian-speakers and Crimean Tatars. The
Ukrainian language is on the outskirts in all sectors – public
life, culture, education, everyday life, etc. Even among
ethnic Ukrainians, the number of those who consider
Ukrainian their native language is rather low, of those who
speak it at home – meagre. Such standing of the Ukrainian
language in Crimea contrasts with its official status that,
however, does not allow its total neglect.
For instance, in all socio-cultural groups of Crimea
more than half or nearly half believe that every state
servant in the authorities and local self-government bodies
of the autonomy should know the Ukrainian language,
and this conviction is the strongest among Crimean Tatars
(57.6%). Meanwhile, the overwhelming majority of
Crimeans believe that every official should also know the
Russian language. However, the opinions of the officials’
duty to know the Crimean Tatar language show substantial
disparities: while the majority (67.4%) of Crimean Tatars
admit such need, in other socio-cultural groups this opinion
is shared by no more than a quarter.
Similar disparities exist in the opinions of different
socio-cultural groups on the obligatory command of
specific languages by every resident of Crimea and their
obligatory teaching in all Crimean schools, irrespective
of the main languages of studies. The necessity of the
Russian language arouses the least differences in the
former and latter cases. In all groups without exception,
the overwhelming majority believe that every resident
of Crimea should know it, and it should be taught in all
schools.
Big differences, however, are recorded regarding
obligatory teaching of the Ukrainian language and its
knowledge by every Crimean. More than half of Crimean
Tatars consider it necessary both in the former and in the
latter case. The Slavic community supports the former
by 10%, the latter – by 30%. Even greater disparities are
observed in the opinions of Crimean Tatars and Slavs about
the obligatory knowledge and teaching of the Crimean
Tatar language.
The Russian language is evidently recognised as the
language of inter-ethnic communication in Crimea by all
socio-cultural groups. However, while representatives of
the Slavic community tend to freeze the language situation
in the autonomy, Crimean Tatars would be happy with
wider use of their native and the official languages.
The fact that Crimean Tatars more often than
representatives of other socio-cultural groups consider use
of the Ukrainian languages in the key public sectors and
its knowledge by citizens and state servants obligatory
illustrates the attitude of Crimean Tatars to the Ukrainian
state, largely resting on hopes that the state will be the
institute that will ensure fully-fledges integration of
Crimean Tatars on their historic Motherland. At that,
focus group result show that Crimean Tatars are often
puzzled and irritated by the stand of many Crimean
Ukrainians who, in their opinion, largely lost their
national consciousness.
During discussions in focus groups ethnic Russians,
speaking of their idea of the language policy, mainly
stressed the expediency of several official languages
(Russian, Crimean Tatar, Ukrainian or only Russian and
Crimean Tatar) – often suggesting however that this will
require from officials not mandatory knowledge of all
official languages, but sufficient command of at least one
of them (as well as study of only one language at school).
They also suggested that Russian should be the only state
(official) language.
Ukrainians during discussions in focus groups spoke
out for the use of the Ukrainian languages in state
service and education, stressing that this should be done
gradually, and that there should be a choice. The also
suggested that higher educational establishments should
teach students of Slavic nationalities the Crimean Tatar
language, too.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 17
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
R: “Russian, Ukrainian and Crimean Tatar. I would refuse from
Ukrainian, but who will let me do that? Ukrainian may be dropped.
Nobody here speaks it. There might be two languages: Russian and
Crimean Tatar, let them calm down”.
R: “Only the Russian language would be ideal. What we have
now: my child studies Ukrainian, and if Tatar is added – must he
study Tatar?”
U: “Not everyone can immediately start speaking Ukrainian, they
should begin with the younger generation. Gradually, quietly, without
collisions. And, of course, the prestige of being Ukrainian must be
shown”.
U: “It seems to me that the [Ukrainian] language should of course
be introduced. They just want to do it fast... Teaching Ukrainian at
school should be introduced gradually… Moreover, I guess that
the Tatar language should also be delivered to children of Slavic
nationalities at higher educational establishments. That nation exists
and is big enough, one should at least understand what two persons
say behind your back”.
R: “Ukrainian and Crimean Tatar may be admitted, but a man
should always have the right of choice of one or another language
in paperwork”.
U: “There should be a choice in the language and in education”.
R: “A Slav is really unable to learn the Crimean Tatar language,
moreover adult”.
R: “There should be official languages, at least in Crimea, spoken
by the majority of people. If we, say, make a majority, of course, it
must be the Russian language. A developing language (all linguists
will say) can never be official, while it is developing”.
R: “One official language (Russian)”.
U: “One cannot live in society and be free from society. Of course,
as a Ukrainian, I believe that everybody should know the official
language. State servants − “fluent command of the [Ukrainian]
language is mandatory”. But how to learn the language? It should be
started from kindergarten, gradually adding at school. There should
be a planned policy, special programmes prepared for that”.
Т: “Now, Crimean Tatar children speak Ukrainian best of all. At all
events devoted to Shevchenko, Crimean Tatar children read verses,
Crimean Tatar children take part in competitions”.
Regarding limitations on the use of the native
languages, Crimean Tatars are in the worst situation,
since the majority of them face limitations in everyday
life – at work, during studies, in public activity,
communication with representatives of the authorities,
law-enforcement, judicial bodies (most often), doctors,
sales people, employees of utility services. The majority of
representatives of all other socio-cultural groups reported
absence of such limitations.
Ability to bring up children in cultural
traditions of their people
The majority of Crimean Tatars and more than half of
representatives of the Slavic community reported that they
did not have enough possibilities to bring up children in
the cultural traditions of their people. Only a fifth of the
former and more than a quarter of the latter believe that
they have such possibility.
In secondary and higher education, Russian is the most
desired language for the main socio-cultural groups of
Crimea, to a different extent though. The absolute majority
of representatives of the Slavic community and a relative
majority of Crimean Tatars would like their children to
study at school or a higher educational establishment in
that language.
The difference between the socio-cultural groups
is that only a bit more than a quarter of Crimean
Tatars would prefer the language of their people as the
language of secondary and higher education for their
children.
Perception of the problem of “Ukrainisation
of Crimea” and idea of its signs
The problem of Ukrainisation remains sensitive for
Crimea. Representatives of all socio-cultural groups agree
or tend to agree that this phenomenon exists, and this
opinion is widely shared even by Crimean Tatars, although
much less than in the Slavic community.
In all socio-cultural groups, the majority (actually
the same share) sees forcible Ukrainisation in the ban on
broadcasting of Russian TV channels in Ukraine whose
programmes were not adapted to the requirements of
the Ukrainian legislation. Also, nearly half of Crimean
Tatars and the majority of representatives of the other
groups referred to translation of prescriptions, manuals,
description of goods in Ukrainian and dubbing movies on
TV and in the cinema.
More than half of representatives of all socio-cultural
groups, except Crimean Tatars, also see Ukrainisation in
translation of business documentation to the Ukrainian
language.
The focus group results revealed different perceptions
of Ukrainisation by the main ethnic groups of Crimea.
In Russians, it arouses flat rejection, even aversion.
Ukrainians are generally not against Ukrainisation as
such but against extremes and haste accompanying it, in
their opinion. Crimean Tatars are the most receptive of
Ukrainisation, but suggest that it should be accompanied
with the development of Crimean Tatar education,
wider use of the Crimean Tatar language. In its absence,
Ukrainisation will only do harm to the Crimean Tatar
people.
Do you have enough possibilities to bring up your children
according to the cultural traditions of your people?
% of those polled
Crimean Tatars
Slavic community
Other
Crimean
Ukrainians Age
(Crimea)
Gender
(Crimea)
18-29
30-39
40-49
50-59
60 and
over
Male
Female
Yes 21.7 29.2 42.2 33.6 28.9 32.0 33.8 34.5 35.0 32.5 33.1
No 67.9 53.3 33.2 37.4 40.8 53.6 50.3 51.1 47.4 46.9 49.5
Hard to say 10.4 17.5 24.6 29.0 30.3 14.4 15.9 14.4 17.6 20.6 17.4
18 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
R: “Ukrainisation is a problem of not only Crimea, it is a problem
of the whole country. The Ukrainian language never existed and
probably never will. The whole of Ukraine speaks Pidgin Ukrainian,
only its nature changes dependent on the region... There is no single
Ukrainian language as such…”
R: “We are forcibly ukrainised. Pity our children who enter
institutes... Not all lecturers at higher educational establishments can
teach in Ukrainian. I guess, if English were imposed upon us like that,
we would similarly dislike English”.
U: “Ukrainisation should not go on at such a pace in Crimea.
Although we should support it… I noticed that as soon as they began
to translate movies, that sector [cinema] became loss-making in
Crimea. One should take into account not only political importance of
issued laws, but also economic”.
U: “It seems to me that Ukrainisation should be a process of
building the Ukrainian self-identification. For a man to be Ukrainian
and think Ukrainian. Best of all is to begin with mass media. But on the
other hand, why do we deprive other peoples, say, Russians, of the
right to bring up their children in their language?”
Т: “Ukrainisation in Crimea goes on very slowly, but it does. I see
that children now without difficulty watch and understand everything
in the Ukrainian language. It may be difficult for our parents but easy
for a child. The next generation will be ukrainised... If Crimea is in
the Ukrainian state, the only second official language may be Crimean
Tatar after Ukrainian … Ukrainisation should be adapted to Crimea”.
Т: “Ukrainisation is hostile to our people. My niece in Crimea
learns verses about Kyiv. Why not about Crimea, mosques, even in the
Ukrainian language? And another thing: I will welcome Ukrainisation
if it goes along with Tatarisation. In the result of Ukrainisation alone,
nothing will be left from my people tomorrow”.
Attitude to historic heritage and
assessment of historic events
The problems of historic heritage, assessments of
historic events are of special importance because they fall
within the segment of so-called “historic myths”, being
a vital element shaping consciousness of socio-cultural
groups. Those problems, as a rule, arouse great interest
and expressive emotional response even in those who little
care about the problem of history, since they touch value
symbols in human consciousness.
Assessment of deportation of Crimean Tatar
people. The majority of representatives of Crimean Tatars
and the Slavic community disagree that deportation of
Crimean Tatars was a justified act of the Soviet leadership.
However, the degree of disagreement in those groups
substantially differs. While nearly half of Crimean Tatars
entirely disagree with that statement, among Slavs, only
half tends to disagree, and only 7.3% disagree entirely.
Deportation is justified by more than a quarter of
representatives of the Slavic community and nearly
one-fifth of Crimean Tatars.
So, despite some differences, deportation is not justified
by the majority in all socio-cultural groups.
Approaches to restoration of historic Crimean
Tatar place names in Crimea. Opinions of Crimean
Tatars and Slavs regarding the expediency of restoration
of historic (Crimean Tatar) place names in Crimea are
diametrically opposite. Some 70% of Crimean Tatars see
it expedient, and actually as many representatives of the
Slavic community – inexpedient.
This is a contentious subject for representatives of
those socio-cultural groups, since the change of place
names will witness a change in “symbolic value space”
in Crimea to the benefit of one of them, and command of
that space means control of the material space, with all its
resources.
Idea of the Crimea’s future. A relative majority of
Crimean Tatars remained undecided on the most desired
for them option of the Crimea’s future. Roughly equal
groups (a bit more than 10% each) chose such options as
secession of Crimea from Ukraine and getting the status of
an independent state, transfer to Russia, transformation into
a Crimean Tatar autonomy within Ukraine, preservation
of the current status with expanded rights and powers.
Did you personally experience restrictions in use of your native language?
% of those polled
Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60 and
over
Male Female
In communication with
representatives of bodies of
power, law-enforcement and
judicial authorities
Yes 71.2 40.1 35.0 33.1 37.7 41.8 42.6 38.6 45.7 43.1 40.6
No 20.7 54.7 56.5 56.2 53.8 52.2 51.6 54.6 49.4 52.5 53.2
Hard to say 8.1 5.2 8.5 10.7 8.5 6.0 5.8 6.8 4.9 4.4 6.2
During studies
Yes 62.0 34.0 25.2 28.2 39.5 34.3 33.0 29.6 30.8 37.2 34.5
No 30.4 56.0 65.1 59.5 52.7 55.3 61.5 61.1 54.7 59.2 60.9
Hard to say 7.6 10.0 9.7 12.3 7.8 10.4 5.5 9.3 14.5 3.6 4.6
In public activity
Yes 58.2 29.5 21.5 13.1 29.7 27.1 30.2 29.1 30.6 30.8 28.9
No 31.0 62.8 70.1 76.2 60.5 64.8 64.3 61.3 61.5 62.9 63.1
Hard to say 10.8 7.7 8.4 10.7 9.8 8.1 5.5 9.6 7.9 6.3 8.0
In communication with
healthcare, sales, communal
services’ personnel
Yes 53.6 21.7 17.6 15.4 20.7 23.3 20.3 26.8 25.6 23.6 23.3
No 36.1 69.1 69.0 69.2 68.1 66.3 69.2 64.7 62.2 65.8 66.7
Hard to say 10.3 9.2 13.4 15.4 11.2 10.4 10.5 8.5 12.2 10.6 10.0
At work
Yes 46.7 16.3 17.4 12.3 17.7 19.5 23.4 21.0 17.3 20.1 20.4
No 42.9 66.8 72.5 80.0 65.1 68.4 63.9 66.9 68.2 67.9 69.9
Hard to say 10.4 16.9 10.1 7.7 17.2 12.1 12.7 12.1 14.5 12.0 9.7
> Ow
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RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 19
ДОДАТОК 2
The least desired for Crimean Tatars are the prospects of
transfer of the Crimea to Turkey and granting it the status
of a region within Ukraine10.
Among representatives of the Slavic community, more
than a third would like Crimea to be part of Russia, nearly a
quarter – be transformed into a Russian national autonomy
as a part of Ukraine. The least wanted are such options
as the oblast status for the Crimea and transfer to Turkey.
Very few people would like Crimea to stay an autonomy
within Ukraine with the existing rights and powers or to
be an independent state. None of the polled would like
Crimea to be the Crimean Tatar national autonomy.
So, by and large, the stand of the Slavic community
looks more definite than of Crimean Tatars, and that
stand, judging by the two most acceptable for that
community options of the Crimea’s future, is evidently
pro-Russian. The unpopularity among representatives
of both communities of once the most acceptable option
of preservation of the present status of the autonomy
with wider rights and powers witnesses threatening
trends in the social consciousness of the Crimeans, in
particular, disbelief of the majority in positive prospects
of Crimea staying within the state system of Ukraine.
The main Crimean socio-cultural groups are
highly ethno-centrist. This is seen in self-assessments
and mutual assessments of human qualities inherent
in socio-cultural groups, their attitude to cultural
traditions, languages, problems of other socio-cultural
groups.
Assessments of human qualities of representatives
of other group by the main socio-cultural and ethnic
groups substantially differ from self-assessments of
those groups: as a rule, representatives of their group
are ascribed more positive qualities, while otherwise
positive qualities associated with representatives of
other communities in the end acquire a negative tint. At
that, Crimean Tatars assess Russians and Ukrainians
much better than they are assessed by representatives
of those nations. Russians demonstrated least of all
tolerance and amicability to the other national groups.
Ukrainians in Crimea are actually not seen by
representatives of other communities as a separate
socio-cultural group, and their own national selfidentification
is weak. At that, Crimean Tatars
generally treat Ukrainians more positively, Russians –
more negatively.
Representatives of the main socio-cultural
communities demonstrated rather good knowledge of
the culture, traditions, customs of the main ethnic groups
of Crimea – Russians, Ukrainians, Crimean Tatars.
At that, Crimean Tatars know the culture, traditions,
customs of Russians and Ukrainians somewhat better
than representatives of the Slavic community – the
culture, traditions, customs of Crimean Tatars.
Representatives of the main socio-cultural and
ethnic groups of Crimea, in principle, are united
regarding mandatory knowledge and desirability of
study of the Russian language, while serious differences
are observed concerning other languages. At that,
Russians are happy with the present situation of actual
monolingualism in the Crimea. Ukrainians would
not mind wider use of their native language, gradual
though. Crimean Tatars support wider use in Crimea
of their native and the official languages. They also face
the toughest limitations in the use of their language
in actually all social sectors, while the majority of
Ukrainians and Russians never encountered such
problem.
Meanwhile, the majority of representatives of the
main socio-cultural groups of the Crimea recognised
that they did not have enough possibilities to bring up
their children in the cultural traditions of their people.
Along with some differences in assessments of the
rationale of deportation by the Slavic and Crimean
Tatar communities, there are fundamental differences
between them regarding the restoration of historic
Crimean Tatar place names. Contradictions in symbolic
values conceal a significant potential of conflicts.
1.3. IDEAS OF WAYS TO HARMONISE INTERETHNIC
AND INTER-CONFESSIONAL
RELATIONS IN CRIMEA
The attitude of the main socio-cultural groups to the
institutes of governance, their influence on the situation,
views of the ways of solution of existing problems present
the basis for development of the situation in the field of
inter-ethnic relations in the autonomy.
In this context, the depth of differences between groups
may present both a precondition for search of a common
stand, and a factor of their division. In particular, their
opinions are similar as soon as they deal with economic
and social problems, and differ as soon as they deal
with political problems and problems of inter-ethnic
relations11.
Assessment of the focus of central
and Crimean authorities
The attitude of representatives of actually all sociocultural
groups may differ only in the range from critical
to very critical.
Central authorities. Nearly 40% of representatives
of all socio-cultural groups believe that the policy of
the central authorities in Crimea pursues interests of
oligarchic clans. A bit fewer people (21-23%) in the main
socio-cultural groups believe that it pursues the interests
of Ukraine as a whole. There is notable difference between
assessments of Slavic and Crimean Tatar groups, on one
hand, and the group of “other” (7.4%). The number of
Slavs and Crimean Tatars who believe that that policy
pursues interests of specific ethnic groups is small. Only
some of the “other” and “Crimean Ukrainians” believe
that that policy pursues interests of Ukrainians – 7.9% and
17.4%, respectively.
Crimean authorities. Perception of the policy of local
authorities by representatives of all socio-cultural groups
is more critical, compared to the attitude to Kyiv’s policy.
Almost half of representatives of the Slavic and Crimean
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
10 For more detail on the attitude of the Crimeans to the autonomy’s problems see: Crimea: people, problems, prospects. Razumkov Centre Analytical Report. –
“National Security & Defence”, No.10, 2008.
11 Results of the previous phase of the project show that the main Crimean ethnic groups differently see the desired future status of the peninsula, and some
alternatives acceptable for a specific group, if attempted, can cause serious conflicts, including with the use of force. For more detail see: Crimea: people,
problems, prospects…, pp.19-22.
20 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
Tatar communities believe that Crimean authorities pursue
a policy in the interests of oligarchic clans. However, in
the Slavic community, twice more people (10.9%) believe
that it pursues the interests of the Crimeans.
Therefore, representatives of all socio-cultural
groups have similar, rather critical assessments of
the policy of both central and Crimean authorities.
Representatives of the Slavic community more often
note the “pro-Crimean” nature of actions of the local
authorities, compared to representatives of the other
communities.
Ideas of ways to enhance the effectiveness
of the Crimean authorities
Differences in the assessments of measures at
improvement of operation of the central and local
authorities by representatives of different socio-cultural
groups are not fundamental and mainly deal with their
importance and priority.
Central authorities. Representatives of the Slavic
community mentioned among the most effective measures
at enhancement of the effectiveness of operation of
the central authorities in Crimea formulation and
implementation of the strategy of development of the
Crimea (24.4%), elimination of corruption (20.5%). They
attach less importance to the issues of organisation and
human resources (11-16%): replacement of executives
with more professional; extension of greater powers to the
Crimean authorities, wider representation of Crimea in the
central bodies of power, reversal of the party affiliation
and political course of the central authorities. The stand of
the group of “other” is very much the same.
The stand of Crimean Tatars in that issue differs by
that they attach the highest priority to fighting corruption
(36.2%), and see reversal of the party affiliation and
political course as the main organisational and HR step
(17.3%).
Noteworthy, Crimean Tatars pay less attention than
the Slavic community to wider powers for the Crimean
authorities and stronger representation of Crimea in the
central bodies of power – only some 4%.
Crimean authorities. Representatives of the Slavic
community mentioned as the most important measures
at enhancement of the effectiveness of the Crimean
authorities: elimination of corruption (50.2%), working
out and implementation of the Crimea’s development
strategy (46.7%), replacement of its leadership with
more professional (39.3%). The opinions of “other” and
“Crimean Ukrainians” are close, the main difference being
that they consider replacement of its leadership with more
professional the second most important step.
The difference in the stand of Crimean Tatars lies in
their emphasis on measures at broader representation of
the deported peoples in the Crimean authorities (54.3%),
where they are supported by only 3-5% of representatives
of the other groups.
Representatives of different groups are generally
united in their perceptions of the need and ways of
enhancement of the effectiveness of the central and
Crimean authorities. Crimeans prioritised removal
of corruption, making the authorities’ policy strategic
and personal changes for their improvement.
Interestingly, Crimean Tatars, emphasising their
greater involvement in local authorities, pin little hope
on representation of the Crimea in central bodies of
power.
Ideas of ways to solve problems
in the sphere of inter-ethnic relations
The most important for all Crimeans, from the viewpoint
of influence on inter-ethnic relations, are problems in two
sectors: political and socio-economic. Crimean Tatars
also attach greater importance than representatives of
other groups to measures in the cultural, language and
educational sectors.
Socio-economic sphere. The majority of all Crimeans
are united that inter-ethnic relations in Crimea may get
better with the recovery of industry and agriculture. The
main socio-cultural groups also show little differences in
the assessment of the importance of such measures as rise
of wages and pensions, development of the recreational
sector and, interestingly, fair solution of the land problem
to the benefit of representatives of all nationalities.
Meanwhile, representatives of the Slavic community
and the group of “other” far more often than Crimean
Tatars noted the urgency of the problem of dealing
with unemployment (58.1% and 62.6% against 29.3%,
respectively).
On their part, Crimean Tatars see it more urgent,
compared to representatives of the other communities,
to increase funding of measures aimed at amenities for
repatriates and solution of land problems.
Political sphere. Crimean Tatars consider as the
most important political measures: establishment of a
commission for solution of inter-ethnic, religious and
political conflicts involving representatives of the authorities
and public organisations; conduct of presidential elections
and change of the President of Ukraine; fighting corruption
at land allotment; passage of a programme of Crimea’s
development, taking into account the interests of all strata
and ethnic groups; equal treatment of representatives of
all national groups living in Crimea by the central and
Crimean authorities; fighting corruption in the authorities
as a whole.
The fact that “replacement of the President of Ukraine”
was mentioned by 43.5% of Crimean Tatars largely
witnesses the assessment of not only the President but all
supreme bodies of power in Ukraine in solution of problems
of the deported peoples, including Crimean Tatars.
Among the key political measures that could have
a positive effect on inter-ethnic relations in Crimea,
representatives of the Slavic community the most often
mentioned extension of the Agreement of Russia’s Black
Sea Fleet stationing in Sevastopol after 2017; presidential
elections and change of the President of Ukraine; fighting
corruption in the authorities as a whole; Ukraine’s accession
to the Federal State of Russia and Belarus; fighting
corruption in law-enforcement and judicial bodies.
Therefore, the Slavic community and Crimean
Tatars share the urgency of eliminating corruption and
change of the President.
The main socio-cultural groups substantially differ
by their perception of the Black Sea Fleet stationing in
Crimea. Representatives of the Slavic community (75.5%)
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 21
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
view that factor as a guarantee of an acceptable for them
status of Crimea. Here, they are supported by 47.6% of
the group of “other”. Among Crimean Tatars, only 19.6%
consider that it exerts positive influence on inter-ethnic
relations.
Legal sphere. Almost a third of Crimean Tatars see
as the most important measures granting the status of an
indigenous people of Ukraine for the Crimean Tatar people
and official recognition of Majlis by the Ukrainian state
as a plenipotentiary representative body of the Crimean
Tatar people. Here, they are supported by only 1-3% of
representatives of the Slavic community and the group of
“other”.
Representatives of the Slavic community more often
mention in that field: greater activity of law-enforcement
bodies at suppression of activity of public organisations
instigating inter-ethnic hatred in Crimea; limitation of
activity or prohibition of such organisations; cancellation
of registration of mass media whose materials instigate
inter-ethnic hatred; permission of dual citizenship
(Ukrainian and of another state at their choice) for
Crimean residents.
Those measures were also mentioned by 19% to 27%
of Crimean Tatars, but proceeding from the results of
focus groups, when Crimean Tatars and representatives of
the Slavic community speak of the need to ban extremist
national organisations and publications stirring up interethnic
hatred, they mean different organisations and
publications: representatives of the Slavic community –
Crimean Tatar, Crimean Tatars – pro-Russian.
Cultural, language, information spheres. The most
important measures, as seen by Crimean Tatars, include
an effective possibility of study in the native language for
all who wish so; refusal from Ukrainisation of the Crimean
information space and educational sector; legislative
provision of obligatory command of the Crimean Tatar
language for state servants and officials of local selfgovernment
bodies, its obligatory study at secondary
schools.
Representatives of the Slavic community see as the
most important measures: refusal from Ukrainisation of
the Crimean information space and educational sector; an
effective possibility of study in the native language for all
who wish so; the status of Russian as the second official
language in Ukraine. Here, their opinions coincide with
those of the group of “other”.
So, representatives of all socio-cultural groups are
united by the negative perception of Ukrainisation of
the information sector (although the support for that step
among Crimean Tatars is twice lower than in the Slavic
community – 27.7% and 58.7%, respectively).
Sphere of inter-confessional relations. Specific of
that sector, the importance of the proposed measures for
each socio-cultural group substantially differs.
For instance, representatives of the Slavic community
consider much more effective than Crimean Tatars the
following measures: refusal of registration of religious
organisations whose doctrine and ideology contain
calls for forcible spread of their religion, establishment
of a theocratic state, intolerance to representatives of
other religions and non-believers (24.2% and 10.9%,
respectively); introduction of the practice of consultations
of the state bodies with leaders of the main churches and
religious organisations of Crimea at registration of new
religious organisations, communities (17% and 4.9%,
respectively); refusal of the leadership of churches and
religious organisations from missionary outreach among
representatives of other confessions (11.9% and 1.6%,
respectively).
Crimean Tatars consider the most effective
introduction in the secondary school curricula of a subject
dealing with the history and fundamentals of teaching of
traditional religions of Crimea (22.8%, against 16.6% in
the Slavic community).
By contrast to the two former groups, representatives
of the group of “other” attach greater importance to
measures at expansion of mutual contacts of churches
and religious organisations of Crimea, development and
implementation of common social, charitable, cultural
programmes and enhancement of the educational level of
the clergy.
Therefore, representatives of the Slavic community
are somewhat greater than the other groups worried
by the problem of spread of other religions in Crimea.
Representatives of Crimean Tatars emphasised spread
of knowledge about the traditional for Crimea religions,
including Islam, among youths, representatives of the
group of “others” are more disposed to the inter-church
dialogue and accord.
Representatives of all socio-cultural groups are
generally united in views of the ways of enhancement
of the authorities’ effectiveness and solution of socioeconomic
problems (while Crimean Tatars stress the need
of greater attention to the problems of repatriates).
In the policy sector, the opinions of the Slavic
community and Crimean Tatars coincide in admission
of the need of defeating corruption and change of the
President. The greatest contradictions between Slavs
and “other”, on one hand, and Crimean Tatars – on the
other, are caused by the presence of Russia’s Black Sea
Fleet in Sevastopol.
In the legal field, the desire of Crimean Tatars to
get the status of an indigenous people of Ukraine and
to secure official recognition of Majlis by the Ukrainian
state is shared by very few representatives of other
communities of Crimea.
Representatives of the main socio-cultural groups
feel cautious about each other, which is manifested in the
implications of their desire to ban public organisations
instigating inter-ethnic hatred in Crimea – meaning
organisations that do not belong to their group.
Representatives of all socio-cultural groups reported
a mainly negative perception of Ukrainisation of the
educational and information sectors. Serious differences
are observed in the attitude of the socio-cultural
communities to the status of the Crimean Tatar language.
While many Crimean Tatars see it necessary to legislatively
provide for obligatory command of the Crimean Tatar
language for state servants and officers of local selfgovernment
bodies, its obligatory study at secondary
schools, among representatives of the Slavic community,
support for this opinion is extremely low.
22 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
SPECIFICITIES OF IDENTIFY OF DOMINANT SOCIO-CULTURAL GROUPS OF CRIMEA
Crimean Tatars Slavic community Other Crimean Ukrainians CRIMEA IN GENERAL
IDENTIFICATION DIMENSIONS
“Crimean identity”
Do you consider yourself a representative of
Ukrainian nation to which, according to the
Constitution of Ukraine, belong citizens of
Ukraine of all nationalities?
Hard to say
(55.4%)
No
(23.9%)
Yes
(20.7%)
No
(44.2%)
...
Yes
(27.3%)
Yes
(44.2%)
No
(34.6%)
Yes
(59.5%)
No
(21.4%)
No
(39.3%)
Yes
(32.1%)
What group of people you can say about “That
is us”, in the first place?
We are Crimeans
(78.3%)
We are citizens of Ukraine
(7.6%)
None of the listed
(6.5%)
…
We are citizens of the former
Soviet Union
(1.1%)
We are Crimeans
(65.4%)
We are citizens of the former
Soviet Union
(22.3%)
We are citizens of Ukraine
(7.4%)
We are Crimeans
(50%)
We are citizens of the former
Soviet Union
(20.7%)
We are citizens of Ukraine
(16.7%)
We are Crimeans
(33.1%)
We are citizens of Ukraine
(31.5%)
We are citizens of the former
Soviet Union
(15.4%)
We are Crimeans
(61.5%)
We are citizens of the former
Soviet Union
(19.8%)
We are citizens of Ukraine
(10.4%)
What of the following do you connect (identify)
yourself with, in the first place?
With Crimea
(38.3%)
Hard to say
(21.3%)
With the place of residence
(15.8%)
With Russia
(10.9%)
…
With Ukraine
(2.7%)
With Soviet Union
(0.5%)
With Crimea
(35.9%)
With the place of residence
(25.6%)
With Russia
(16.6%)
With Soviet Union
(11.7%)
...
With Ukraine
(3.6%)
With Crimea
(34.4%)
With the place of residence
(31%)
With Russia
(11.3%)
With Ukraine
(9.6%)
With Soviet Union
(8.2%)
With Crimea
(41.5%)
With the place of residence
(27.7%)
With Ukraine
(15.4%)
With Russia
(5.4%)
With Soviet Union
(4.6%)
With Crimea
(35.6%)
With the place of residence
(26.5%)
With Russia
(14.4%)
With Soviet Union
(9.5%)
...
With Ukraine
(5.5%)
Do all Crimeans, regardless of their ethnic
background, have common traits which
distinguish them from Ukrainians, Russians,
representatives of other nations?
Yes
(38.3%)
...
No
(30.1%)
Yes
(41%)
No
(35.1%)
Yes
(47.8%)
No
(34%)
Yes
(45%)
No
(38.2%)
Yes
(43%)
No
(34.2%)
How important for self-sentiment of Crimeans
as a unified community are the following
features?1
Common Motherland is Crimea
4.75
Own territory is Crimean peninsula
4.69
Historic names of localities,
geographic names
4.53
Common language being used by the
majority of Crimeans is Russian
4.87
Positive attitude to Russia
4.76
Desire to see Ukraine in union
with Russia and Belarus
4.73
Common language being used by the
majority of Crimeans is Russian
4.45
Common Motherland is Crimea
4.34
Positive attitude to Russia
4.29
Common language being used by the
majority of Crimeans is Russian
4.26
Common Motherland is Crimea
4.16
Positive attitude to Russia
3.96
Common language being used by the
majority of Crimeans is Russian
4.69
Common Motherland is Crimea
4.58
Positive attitude to Russia
4.55
With what of the following statements do you
agree more?
Crimea is neither Ukraine nor Russia
(35.3%)
Crimea is both Ukraine and Russia
(23.9%)
...
Crimea is Ukraine
(14.7%)
Crimea is Russia
(4.3%)
Crimea is Russia
(40.2%)
Crimea is both Ukraine and Russia
(34.8%)
Crimea is neither Ukraine nor Russia
(13%)
...
Crimea is Ukraine
(5.1%)
Crimea is both Ukraine and Russia
(31.9%)
Crimea is Russia
(21.6%)
Crimea is neither Ukraine nor Russia
(17.3%)
Crimea is Ukraine
(17.1%)
Crimea is Ukraine
(26.7%)
Crimea is both Ukraine and Russia
(26.7%)
Crimea is neither Ukraine nor Russia
(19.1%)
…
Crimea is Russia
(10.7%)
Crimea is both Ukraine and Russia
(32.8%)
Crimea is Russia
(30.9%)
Crimea is neither Ukraine nor Russia
(16.5%)
Crimea is Ukraine
(9.8%)
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 23
ДОДАТОК 2
Which variant of the Crimea’s future is the most
preferable for you? Would you like Crimea to…?
Hard to say
(36.3%)
Secede from Ukraine and become an
independent state
(11.4%)
Secede from Ukraine
and join Russia
(10.8%)
Preserve its current status of the
autonomy as a part of Ukraine with
expanded rights and powers
(10.3%)
Become Crimean Tatar national
autonomy as a part of Ukraine
(10.3%)
Secede from Ukraine
and join Russia
(37.1%)
Become Russian national autonomy
as a part of Ukraine
(24.7%)
Hard to say
(16.3%)
Preserve its current status of the
autonomy as a part of Ukraine with
expanded rights and powers
(12.3%)
Secede from Ukraine
and join Russia
(29.8%)
Preserve its current status of the
autonomy as a part of Ukraine with
expanded rights and powers
(17.3%)
Preserve its current status of the
autonomy as a part of Ukraine with
existing rights and powers
(13.9%)
Become Russian national autonomy
as a part of Ukraine
(13.4%)
Hard to say
(11.6%)
Secede from Ukraine
and join Russia
(26%)
Preserve its current status of the
autonomy as a part of Ukraine with
existing rights and powers
(19.8%)
Preserve its current status of the
autonomy as a part of Ukraine with
expanded rights and powers
(19.8%)
Secede from Ukraine
and join Russia
(32.3%)
Become Russian national autonomy
as a part of Ukraine
(19.5%)
...
Preserve its current status of the
autonomy as a part of Ukraine with
expanded rights and powers
(13.8%)
Socio-cultural identity of Crimea’s social groups
What group of people you can say about “That
is us”, in the first place?
We are Muslims
(61.4%)
We are representatives of our
nationality
(20.7%)
We are representatives of ummah
(world’s Muslim community)
(6.5%)
We are Russian-speaking
(66%)
We are Orthodox
(29.8%)
We are representatives
of our nationality
(3%)
We are Russian-speaking
(46.5%)
We are Orthodox
(27.7%)
We are representatives
of our nationality
(16.2%)
We are Russian-speaking
(34.6%)
We are Orthodox
(26.9%)
We are representatives
of our nationality
(19.2%)
We are Russian-speaking
(54%)
We are Orthodox
(26.9%)
We are representatives
of our nationality
(8.9%)
With what cultural tradition do you associate
yourself?
Crimean Tatar
(91.9%)
...
Ukrainian
(1.6%)
Pan-European
(1.6%)
Soviet
(1.6%)
Russian
(0.5%)
Russian
(74.6%)
Soviet
(21.3%)
…
Pan-European
(2%)
Ukrainian
(0.0%)
Crimean Tatar
(0.0%)
Russian
(54.7%)
Soviet
(19%)
Ukrainian
(10%)
...
Pan-European
(6.5%)
Crimean Tatar
(0.9%)
Russian
(46.9%)
Ukrainian
(15.4%)
Soviet
(13.1%)
...
Pan-European
(10.8%)
Crimean Tatar
(0.8%)
Russian
(61.4%)
Soviet
(18.8%)
Crimean Tatar
(8.7%)
...
Ukrainian
(3.4%)
Pan-European
(3.4%)
Language orientations
Knowledge of what languages is required from
every citizen of Crimea?
Russian
(70.1%)
Crimean Tatar
(63%)
Ukrainian
(53.3%)
Russian
(77%)
There is no need to require an
obligatory knowledge of a language
from Crimeans
(20.6%)
Ukrainian
(10.3%)
Crimean Tatar
(4.4%)
Russian
(68.8%)
Ukrainian
(30.3%)
There is no need to require an
obligatory knowledge of a language
from Crimeans
(24.9%)
Crimean Tatar
(12.3%)
Russian
(49.6%)
There is no need to require an
obligatory knowledge of a language
from Crimeans
(38.5%)
Ukrainian
(33.1%)
Crimean Tatar
(9.2%)
Russian
(73.7%)
There is no need to require an
obligatory knowledge of a language
from Crimeans
(21.8%)
Ukrainian
(20.7%)
Crimean Tatar
(12.3%)
Knowledge of what languages is required from
every official of bodies of power and
self-government bodies in Crimea?
Russian
(77.2%)
Crimean Tatar
(67.4%)
Ukrainian
(57.6%)
Russian
(87.2%)
Ukrainian
(49.8%)
Crimean Tatar
(25.7%)
Russian
(71.1%)
Ukrainian
(44.7%)
There is no need to require an
obligatory knowledge of a language
from officials
(21.8%)
Crimean Tatar
(19.9%)
Russian
(53.1%)
Ukrainian
(45.8%)
There is no need to require an
obligatory knowledge of a language
from officials
(29.2%)
Crimean Tatar
(16.8%)
Russian
(81.1%)
Ukrainian
(48.9%)
Crimean Tatar
(27.7%)
1
On a five-point scale from 1 to 5, where “1” means “not important at all”, and “5” – “very important”.
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
24 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
Crimean Tatars Slavic community Other Crimean Ukrainians CRIMEA IN GENERAL
What languages should be obligatory for
teaching in all schools of Crimea regardless
of the main language of instruction?
Russian
(78.3%)
Crimean Tatar
(73.4%)
Ukrainian
(59.2%)
Russian
(76%)
Ukrainian
(30%)
Crimean Tatar
(18.7%)
Russian
(74.2%)
Ukrainian
(39.4%)
There should be no languages
obligatory for teaching
(19.2%)
Crimean Tatar
(14.4%)
Russian
(58.8%)
Ukrainian
(39.2%)
There should be no languages
obligatory for teaching
(31.3%)
Crimean Tatar
(10.8%)
Russian
(75.6%)
Ukrainian
(35.7%)
Crimean Tatar
(22.3%)
What language of instruction would you prefer
for your children in the middle school?
Russian
(42.9%)
Crimean Tatar
(29.3%)
Hard to say
(24.1%)
…
Ukrainian
(0.5%)
Russian
(95.3%)
Ukrainian
(2.1%)
...
Crimean Tatar
(0.0%)
Russian
(78.5%)
Ukrainian
(9.7%)
...
Crimean Tatar
(0.5%)
Russian
(70.8%)
Ukrainian
(14.6%)
...
Crimean Tatar
(0.8%)
Russian
(85.2%)
...
Ukrainian
(4.4%)
Crimean Tatar
(2.8%)
What language of instruction would you prefer
for yourself or for your children in the higher
educational establishment?
Russian
(42.9%)
Crimean Tatar
(27.2%)
Hard to say
(22.9%)
…
Ukrainian
(1.6%)
Russian
(94%)
…
Ukrainian
(1.9%)
Crimean Tatar
(0.3%)
Russian
(77.4%)
Ukrainian
(9.6%)
...
Crimean Tatar
(0.5%)
Russian
(70.8%)
Ukrainian
(13.1%)
...
Crimean Tatar
(0.8%)
Russian
(84%)
...
Ukrainian
(4.4%)
Crimean Tatar
(2.8%)
INTER-ETHNIC RELATIONS
How well are you acquainted with culture,
traditions, customs of representatives of
the following peoples inhabiting Crimea?
Russians Know a lot
(46.2%)
Know something
(38%)
Know very little
(14.1%)
Know a lot
(82.9%)
Know something
(15.3%)
...
Know very little
(0.6%)
Know a lot
(71.1%)
Know something
(24.9%)
Know very little
(3.1%)
Know a lot
(76.2%)
Know something
(20%)
Know very little
(3.8%)
Know a lot
(78.8%)
Know something
(20.5%)
Know very little
(2.6%)
Ukrainians Know something
(50%)
Know a lot
(36.4%)
Know very little
(11.4%)
Know a lot
(70%)
Know something
(26.5%)
Know very little
(1.9%)
Know a lot
(56.4%)
Know something
(36.4%)
Know very little
(5.5%)
Know a lot
(63.4%)
Know something
(30.5%)
Know very little
(5.3%)
Know a lot
(62.6%)
Know something
(31.8%)
Know very little
(4%)
Crimean Tatars Know a lot
(86.4%)
Know something
(11.4%)
Know very little
(1.6%)
Know something
(53.2%)
Know very little
(23.6%)
Know a lot
(16.7%)
Know something
(45.4%)
Know very little
(24.7%)
Know a lot
(17.9%)
Know something
(31.5%)
Know very little
(29.2%)
Know a lot
(28.5%)
Know something
(46.9%)
Know a lot
(23.4%)
Know very little
(21.9%)
Are you interested in culture, traditions,
customs of other peoples inhabiting Crimea?2
Interested
(66.3%)
Not interested
(25%)
Interested
(80.5%)
Not interested
(10.3%)
Interested
(60%)
Not interested
(31%)
Interested
(54.2%)
Not interested
(36.7%)
Interested
(72.6%)
Not interested
(18.4%)
Culture, traditions, customs of what peoples
inhabiting Crimea would you like
to know more about?
Hard to say
(39.7%)
Karaites
(20.7%)
Greeks
(19%)
Know enough, there is no need
to know more about culture
of any of the peoples
(15.8%)
Krymchaks
(35.7%)
Karaites
(32.3%)
Hard to say
(23.5%)
Greeks
(22.1%)
Hard to say
(30.3%)
Karaites
(27.5%)
Krymchaks
(25.8%)
Greeks
(20.9%)
Hard to say
(34.6%)
Karaites
(30.5%)
Krymchaks
(28.5%)
Greeks
(20%)
Krymchaks
(30.4%)
Karaites
(29.7%)
Hard to say
(27.2%)
Greeks
(21.4%)
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
'
'
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RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 25
ДОДАТОК 2
To what extent each of the following qualities is
pronounced in the peoples listed below?3
Russians Goodwill
3.48
Striving for justice
3.43
Hard-working
3.41
Ability to defend their own interests
3.37
Goodwill
4.43
Openness
4.26
Striving for justice
4.26
Sense of national pride
4.10
Goodwill
4.51
Openness
4.21
Sense of national pride
4.16
Striving for justiceі
4.06
Goodwill
4.46
Openness
4.22
Sense of national pride
4.02
Hard-working
3.94
Goodwill
4.37
Openness
4.15
Striving for justice
4.12
Sense of national pride
4.05
Crimean Tatars Goodwill
4.48
Religiosity
4.32
Ability to defend their own interests
4.32
Sense of national pride
4.30
Ability to defend their own interests
4.38
National unity
4.25
Sense of national pride
4.14
Religiosity
4.13
Ability to defend their own interests
4.37
National unity
4.28
Sense of national pride
4.22
Striving for justice
3.30
National unity
4.48
Ability to defend their own interests
4.43
Sense of national pride
4.33
Religiosity
4.18
Ability to defend their own interests
4.37
National unity
4.25
Sense of national pride
4.18
Religiosity
4.16
Ukrainians Hard-working
3.61
Openness
3.61
Religiosity
3.56
Ability to defend their own interests
3.55
Sense of national pride
4.18
Hard-working
4.14
Goodwill
4.03
Religiosity
3.98
Goodwill
4.14
Hard-working
4.08
Sense of national pride
4.08
Striving for justice
3.78
Goodwill
4.26
Hard-working
4.18
Sense of national pride
4.01
Openness
3.89
Hard-working
4.07
Sense of national pride
4.06
Goodwill
4.02
Religiosity
3.86
Did you personally experience restrictions
in use of your native language?
At work Yes
(46.7%)
No
(42.9%)
No
(66.8%)
...
Yes
(16.3%)
No
(72.5%)
Yes
(17.4%)
No
(80%)
Yes
(12.3%)
No
(66.5%)
Yes
(19.5%)
During studies Yes
(62%)
No
(30.4%)
No
(56%)
Yes
(34%)
No
(65.1%)
Yes
(25.2%)
No
(59.5%)
Yes
(28.2%)
No
(56.6%)
Yes
(33.7%)
In public activity Yes
(58.2%)
No
(31%)
No
(62.8%)
Yes
(29.5%)
No
(70.1%)
Yes
(21.5%)
No
(76.2%)
Yes
13.1
No
(62.3%)
Yes
(29.5%)
In communication with representatives of
bodies of power, law-enforcement and judicial
authorities
Yes
(71.2%)
No
(20.7%)
No
(54.7%)
Yes
(40.1%)
No
(56.5%)
Yes
(35%)
No
(56.2%)
Yes
(33.1%)
No
(52.2%)
Yes
(41.3%)
In communication with healthcare, sales,
communal services’ personnel
Yes
(53.6%)
No
(36.1%)
No
(69.1%)
Yes
(21.7%)
No
(69%)
Yes
(17.6%)
No
(69.2%)
Yes
(15.4%)
No
(66.1%)
Yes
(23.3%)
Do you have enough possibilities to bring
up your children according to the cultural
traditions of your people?
No
(67.9%)
Yes
(21.7%)
No
(53.3%)
Yes
(29.2%)
Yes
(42.2%)
No
(33.2%)
No
(37.4%)
Yes
(33.6%)
No
(48.2%)
Yes
(32.7%)
Do you agree with the statement that
deportation of Crimean Tatars and
representatives of other nationalities was
a justified act of Soviet leadership?4
Do not agree
(58.9%)
...
Agree
(18.9%)
Do not agree
(51.9%)
Agree
(26.9%)
Do not agree
(51.1%)
...
Agree
(21.4%)
Do not agree
(68%)
...
Agree
(10.7%)
Do not agree
(52.3%)
Agree
(24.4%)
Is it reasonable to return historic (Crimean
Tatar) place names (toponyms) in Crimea?
Yes
(68.5%)
...
No
(10.3%)
No
(67.5%)
...
Yes
(5.6%)
No
(58.6%)
...
Yes
(10.3%)
No
(54.5%)
...
Yes
(12.1%)
No
(59.5%)
...
Yes
(12.8%)
2 In this question answer variant “interested” is made up of sum of answers “very interested” and “most likely interested”, and “not interested ” – of “not interested” and “most likely not interested”.
3
On a five-point scale from 1 to 5, where “1” means “not pronounced at all”, and “5” – “very much pronounced”.
4 In this question answer variant “agree” is made up of sum of answers “agree” and “most likely agree”, and “do not agree” – of “do not agre” and “most likely do not agree”.
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
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26 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
Crimean Tatars Slavic community Other Crimean Ukrainians CRIMEA IN GENERAL
Attitude to the problem of “Ukrainisation of Crimea”
Do you agree with the statement that the
population of Crimea is enduring forced
Ukrainisation?5
Agree
(77.2%)
Do not agree
(19%)
Agree
(92.9%)
Do not agree
(5.2%)
Agree
(73.3%)
Do not agree
(22.2%)
Agree
(66.2%)
Do not agree
(29.2%)
Agree
(85.3%)
Do not agree
(12%)
How is it demonstrated?6 Termination of broadcasting in Ukraine
of the Russian TV channels, whose
programmes were not adapted to the
requirements of Ukrainian legislation
(64.3%)
Translation of prescriptions, leaflets
to medications and goods into
Ukrainian language
(51%)
Dubbing of feature films on television
and in the movie theatres
in Ukrainian language
(47.9%)
Ban on using other languages in
citizens’ communication with bodies
of power, law-enforcement and judicial
authorities
(39.4%)
Termination of broadcasting in Ukraine
of the Russian TV channels, whose
programmes were not adapted to the
requirements of Ukrainian legislation
(67.5%)
Translation of prescriptions, leaflets
to medications and goods into
Ukrainian language
(65.6%)
Dubbing of feature films on television
and in the movie theatres
in Ukrainian language
(64.8%)
Making the local mass media to
change to Ukrainian language
(51.6%)
Translation of prescriptions, leaflets
to medications and goods into
Ukrainian language
(70.5%)
Termination of broadcasting in Ukraine
of the Russian TV channels, whose
programmes were not adapted to the
requirements of Ukrainian legislation
(66.7%)
Dubbing of feature films on television
and in the movie theatres
in Ukrainian language
(62.9%)
Translation of business documentation
into Ukrainian language
(59.8%)
Translation of business documentation
into Ukrainian language
(62.8%)
Translation of prescriptions, leaflets
to medications and goods into
Ukrainian language
(55.8%)
Making the local mass media to
change to Ukrainian language
(54%)
Termination of broadcasting in Ukraine
of the Russian TV channels, whose
programmes were not adapted to the
requirements of Ukrainian legislation
(50%)
Termination of broadcasting in Ukraine
of the Russian TV channels, whose
programmes were not adapted to the
requirements of Ukrainian legislation
(67%)
Translation of prescriptions, leaflets
to medications and goods into
Ukrainian language
(65.8%)
Dubbing of feature films on television
and in the movie theatres
in Ukrainian language
(62.9%)
Translation of business documentation
into Ukrainian language
(51.8%)
AUTHORITATIVE PUBLIC INSTITUTES/TRUST IN THEM
Public institutes and organisations
Do you trust the following public institutes and
organisations?7
Church Trust
(41.6%)
...
Do not trust
(20%)
Trust
(43.2%)
...
Do not trust
(26.4%)
Trust
(39.3%)
...
Do not trust
(28.8%)
Trust
(38.9%)
...
Do not trust
(24.4%)
Trust
(41.7%)
...
Do not trust
(26.6%)
Trade unions ...
Do not trust
(38.6%)
Trust
(17.9%)
Trust
(38.4%)
Do not trust
(33.9%)
Do not trust
(47.2%)
...
Trust
(20%)
...
Do not trust
(41.2%)
Trust
(13.8%)
Do not trust
(38.6%)
...
Trust
(30.6%)
National-cultural communities, unions,
organisations
Trust
(42.1%)
...
Do not trust
(26.3%)
Do not trust
(57.3%)
...
Trust
(17.6%)
Do not trust
(53.6%)
...
Trust
(18.6%)
Do not trust
(55.4%)
...
Trust
(6.2%)
Do not trust
(53.2%)
...
Trust
(20.2%)
Public organisations Trust
(42.9%)
Do not trust
(29.4%)
Do not trust
(60.5%)
...
Trust
(16.4%)
Do not trust
(58.2%)
...
Trust
(16.5%)
Do not trust
(56.5%)
...
Trust
(5.3%)
Do not trust
(56.9%)
...
Trust
(18.9%)
Political parties Do not trust
(69.8%)
...
Trust
(10.2%)
Do not trust
(85.6%)
...
Trust
(4.8%)
Do not trust
(71.4%)
...
Trust
(11.9%)
Do not trust
(65.4%)
...
Trust
(10%)
Do not trust
(79.6%)
...
Trust
(7.6%)
ATTITUDE TO THE AUTHORITIES
In the interests of who is the policy of central
Ukrainian authorities being led in Crimea?
Oligarchic clans (40.2%)
Ukraine in general (20.7%)
Other (16.8%)
…
All population of Crimea (2.7%)
Ukrainians (2.2%)
…
Russians (0.0%)
…
Crimean Tatars (0.0%)
Oligarchic clans (37.4%)
Ukraine in general (23.4%)
Hard to say (13.7%)
…
All population of Crimea (4.3%)
Ukrainians (2.5%)
…
Crimean Tatars (0.5%)
…
Russians (0.2%)
Oligarchic clans (40.7%)
Hard to say (17.3%)
…
Ukrainians (7.9%)
Ukraine in general (7.4%)
…
All population of Crimea (4.5%)
…
Crimean Tatars (0.9%)
Russians (0.8%)
Oligarchic clans (35.6%)
Ukrainians (17.4%)
Hard to say (14.4%)
...
Ukraine in general (6.1%)
…
All population of Crimea (3%)
Crimean Tatars (3%)
…
Russians (0.0%)
Oligarchic clans (38.8%)
Ukraine in general (18%)
Hard to say (14.3%)
...
All population of Crimea (4.2%)
Ukrainians (4.2%)
…
Crimean Tatars (0.6%)
Russians (0.4%)
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
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RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 27
ДОДАТОК 2
In the interests of who is the policy of local
authorities being led in Crimea?
Oligarchic clans (50.5%)
Hard to say (10.5%)
…
Ukraine in general (4.9%)
All population of Crimea (4.3%)
…
Ukrainians (0.0%)
Russians (0.0%)
Crimean Tatars (0.0%)
Oligarchic clans (48.4%)
Hard to say (12.9%)
All population of Crimea (10.9%)
…
Ukraine in general (7.3%)
…
Ukrainians (1.2%)
..
Crimean Tatars (0.7%)
Russians (0.3%)
Oligarchic clans (41.7%)
Hard to say (21.7%)
…
All population of Crimea (5.9%)
...
Ukrainians (3.1%)
Ukraine in general (2.6%)
…
Russians (0.5%)
Crimean Tatars (0.5%)
Oligarchic clans (32.6%)
Hard to say (21.9%)
Ukrainians (8.3%)
Business of other countries (8.3%)
…
Ukraine in general (3.8%)
All population of Crimea (3.8%)
Russians (0.0%)
Crimean Tatars (0.0%)
Oligarchic clans (46.5%)
Hard to say (15.4%)
…
All population of Crimea (8.7%)
Ukraine in general (5.6%)
…
Ukrainians (1.7%)
…
Crimean Tatars (0.6%)
Russians (0.3%)
What is to be done in the first place to raise
the effectiveness of central authorities’ work
in Crimea?
Eliminate corruption
(36.2%)
Work out the strategy of Crimea’s
development and implement it
(18.9%)
Fundamentally change the party
contingent and lines of policy
(17.3%)
Work out the strategy of Crimea’s
development and implement it
(24.4%)
Eliminate corruption
(20.5%)
Replace the executive staff
by more professional
(15.9%)
Eliminate corruption
(20.6%)
Work out the strategy of Crimea’s
development and implement it
(17.6%)
Replace the executive staff
by more professional
(16.5%)
Work out the strategy of Crimea’s
development and implement it
(18.5%)
Eliminate corruption
(17.7%)
Fundamentally change the party
contingent and lines of policy
(15.4%)
Give more powers to Crimean
authorities
(15.4%)
Eliminate corruption
(22%)
Work out the strategy of Crimea’s
development and implement it
(21.7%)
Replace the executive staff
by more professional
(15.9%)
What is to be done to raise the effectiveness of
Crimean authorities’ work?
Ensure broader representation of
deported peoples in the bodies of
power of Crimea
(54.3%)
Eliminate corruption
(46.2%)
Replace the executive staff
by more professional
(33.7%)
Eliminate corruption
(50.2%)
Work out the strategy of Crimea’s
development and implement it
(46.7%)
Replace the executive staff
by more professional
(39.3%)
Eliminate corruption
(51.2%)
Replace the executive staff
by more professional
(45.8%)
Work out the strategy of Crimea’s
development and implement it
(38.1%)
Eliminate corruption
(45.8%)
Replace the executive staff
by more professional
(45.8%)
Work out the strategy of Crimea’s
development and implement it
(36.6%)
Eliminate corruption
(50.2%)
Work out the strategy of Crimea’s
development and implement it
(42.4%)
Replace the executive staff
by more professional
(40.9%)
VISION OF WAYS TO SOLVE THE PROBLEMS IN RELATIONS BETWEEN CRIMEA’S SOCIO-CULTURAL GROUPS
Taking measures in which of the following
spheres can most positively influence
inter-ethnic relations in Crimea?
In political sphere
(25.4%)
In socio-economic sphere
(21.6%)
...
In cultural, language, information sphere
(18.4%)
In legal sphere
(14.1%)
In political sphere
(32%)
In socio-economic sphere
(28.3%)
In legal sphere
(17%)
In cultural, language, information sphere
(12.6%)
In socio-economic sphere
(29.4%)
In political sphere
(22.6%)
...
In legal sphere
(13.1%)
In cultural, language, information sphere
(12.4%)
In socio-economic sphere
(30.5%)
In cultural, language, information sphere
(19.8%)
…
In legal sphere
(18.3%)
In political sphere
(13%)
In political sphere
(28.4%)
In socio-economic sphere
(28%)
In legal sphere
(15.5%)
...
In cultural, language, information sphere
(13%)
Which of the suggested measures in the
political sphere can positively influence
inter-ethnic relations in Crimea?
Creation of the commission for
solving inter-ethnic, religious, and
political conflicts, which would include
the representatives both from the
authorities and public organisations
(52.2%)
Conduct of presidential elections and
change of the President of Ukraine
(43.5%)
Lowering the level of corruption
in the sphere of land allocation
(40.8%)
Prolongation of the treaty of the
Black Sea Fleet stationing
in Sevastopol after 2017
(75.5%)
Conduct of presidential elections and
change of the President of Ukraine
(51.6%)
Lowering the level of corruption
in bodies of power
(50%)
Lowering the level of corruption
in bodies of power
(53.1%)
Prolongation of the treaty of the
Black Sea Fleet stationing
in Sevastopol after 2017
(47.6%)
Adoption of the programme of
Crimea’s development which takes into
account the interests of all strata and
ethnic groups
(44.3%)
Lowering the level of corruption in
bodies of power
(48.5%)
Adoption of the programme of
Crimea’s development which takes into
account the interests of all strata and
ethnic groups
(46.9%)
Lowering the level of corruption in lawenforcement
and judicial authorities
(43.1%)
Prolongation of the treaty of the
Black Sea Fleet stationing
in Sevastopol after 2017
(61.4%)
Lowering the level of corruption
in bodies of power
(49.7%)
Conduct of presidential elections and
change of the President of Ukraine
(47.5%)
5 In this question answer variant “agree” is made up of sum of answers “agree” and “most likely agree”, and “do not agree” – of “do not agre” and “most likely do not agree”.
6 This question was answered only by those who gave answers “agree” and “most likely agree ” to the previous question.
7 In this question answer variant “trust” is made up of sum of answers “trust” and “most likely trust”, and “do not trust” – of “do not trust” and “most likely do not trust”.
DOMINANT COMMUNITIES OF CRIMEA: SELF-IDENTIFICATION, CHARACTER OF RELATIONS
28 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
8 Which by their actions contribute to the incitement of ethnic hatred.
9 Whose beliefs and ideology have calls to forced spread of their religion, creation of theocratic state, intolerable attitude to representatives of other religions and non-believers.
Crimean Tatars Slavic community Other Crimean Ukrainians CRIMEA IN GENERAL
Which of the suggested measures in the
socio-economic sphere can positively
influence inter-ethnic relations in Crimea?
Rebirth of industry
and agriculture
(61.4%)
Increase in salaries and pensions
(57.1%)
Development of resort industry
(56%)
Rebirth of industry
and agriculture
(69.4%)
Increase in salaries and pensions
(59.6%)
Development of resort industry
(58.8%)
Rebirth of industry
and agriculture
(72.4%)
Lowering the unemployment rate
(62.6%)
Increase in salaries and pensions
(59.4%)
Rebirth of industry
and agriculture
(77.9%)
Lowering the unemployment rate
(63.4%)
Lowering the prices for goods
and services
(59.5%)
Rebirth of industry
and agriculture
(69.6%)
Increase in salaries and pensions
(59.3%)
Lowering the unemployment rate
(56.9%)
Which of the suggested measures in the legal
sphere can positively influence inter-ethnic
relations in Crimea?
Granting Crimean Tatar people the
status of indigenous people of Ukraine
(32.6%)
Official recognition of Crimean Tatar Majlis
by Ukrainian state as a fully legitimate
representative body of
Crimean Tatar people
(30.4%)
Restriction or banning the activity
of Crimean intolerant8 socio-political
organisations
(26.6%)
More active steps of law-enforcement
bodies toward suppression of the
activity in Crimea of the intolerant
public organisations
(46.3%)
Restriction or banning the activity
of Crimean intolerant socio-political
organisations
(44%)
Withdrawal from registration of
the intolerant mass media
(43.3%)
More active steps of law-enforcement
bodies toward suppression of the
activity in Crimea of the intolerant
public organisations
(51.2%)
Withdrawal from registration of
the intolerant mass media
(39.6%)
Restriction or banning the activity
of Crimean intolerant socio-political
organisations
(30.1%)
More active steps of law-enforcement
bodies toward suppression of the
activity in Crimea of the intolerant
public organisations
(52.3%)
Restriction or banning the activity
of Crimean intolerant socio-political
organisations
(39.2%)
Withdrawal from registration of
the intolerant mass media
(38.5%)
More active steps of law-enforcement
bodies toward suppression of the
activity in Crimea of the intolerant
public organisations
(45.9%)
Withdrawal from registration of
the intolerant mass media
(40%)
Restriction or banning the activity
of Crimean intolerant socio-political
organisations
(37.9%)
Which of the suggested measures in the
cultural, language, information sphere can
positively influence inter-ethnic relations
in Crimea?
Real ensuring the opportunity to study
in native language for those
who wish so
(46.7%)
Refusal from Ukrainisation of
Crimea’s education sphere
(34.8%)
Legislative recognition of the need
to know Crimean Tatar language for
officials of the state bodies of power and
local self-government bodies, obligatory
study of the language at schools
(33.7%)
Refusal from Ukrainisation of
Crimea’s information sphere
(27.7%)
Refusal from Ukrainisation of
Crimea’s information sphere
(58.7%)
Refusal from Ukrainisation of
Crimea’s education sphere
(51.2%)
Real ensuring the opportunity to study
in native language for those
who wish so
(48.1%)
Giving Russian language the status of
the second state language on
the territory of Ukraine
(42.7%)
Giving Russian language the status
of the second state language on the
territory of Ukraine
(47.9%)
Refusal from Ukrainisation of
Crimea’s information sphere
(44.4%)
Real ensuring the opportunity to study
in native language for those
who wish so
(37.5%)
Refusal from Ukrainisation of
Crimea’s education sphere
(36.4%)
Refusal from Ukrainisation of
Crimea’s information sphere
(54.2%)
Refusal from Ukrainisation of
Crimea’s education sphere
(42.3%)
Giving Russian language the status
of the second state language on the
territory of Ukraine
(41.2%)
Real ensuring the opportunity to study
in native language for those
who wish so
(41.2%)
Refusal from Ukrainisation of
Crimea’s information sphere
(51.3%)
Refusal from Ukrainisation of
Crimea’s education sphere
(44.9%)
Real ensuring the opportunity to study
in native language for those
who wish so
(44.5%)
Giving Russian language the status
of the second state language on the
territory of Ukraine
(41.5%)
Which of the suggested measures can
positively influence inter-confessional
relations in Crimea?
Hard to say
(28.3%)
Introduction to the middle schools’
curricula of a subject giving knowledge
about history and fundamentals of
beliefs in traditional religions of Crimea
(22.8%)
…
Refusal to register intolerant and
disloyal religious organisations9
(10.9%)
Refusal of church and religious
organisations’ leadership to place
religious attributes outside the cult
buildings’ territory
(9.8%)
Hard to say
(27%)
Refusal to register intolerant and
disloyal religious organisations
(24.2%)
Introduction by government authorities
of practice of consultations with
leadership of major churches and
religious organisations of Crimea while
registering new religious organizations,
communities
(17%)
Introduction to the middle schools’
curricula of a subject giving knowledge
about history and fundamentals of
beliefs in traditional religions of Crimea
(16.6%)
Refusal to register intolerant and
disloyal religious organisations
(25.8%)
Hard to say
(22.3%)
Broadening of mutual contacts of
Crimea’s churches and religious
organisations, development and
implementation of joint social,
charitable, cultural programmes
(21.6%)
Improving the educational
level of clergymen
(20.1%)
Refusal to register intolerant and
disloyal religious organisations
(29.2%)
Improving the educational
level of clergymen
(23.8%)
Broadening of mutual contacts of
Crimea’s churches and religious
organisations, development and
implementation of joint social,
charitable, cultural programmes
(22.9%)
Hard to say
(20%)
Hard to say
(25.6%)
Refusal to register intolerant and
disloyal religious organisations
(23.5%)
Introduction to the middle schools’
curricula of a subject giving knowledge
about history and fundamentals of
beliefs in traditional religions of Crimea
(16.8%)
Broadening of mutual contacts of
Crimea’s churches and religious
organisations, development and
implementation of joint social,
charitable, cultural programmes
(16.1%)
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 29
UKRAINE IN THE SINGLE ECONOMIC SPACE
The events of 2005-2009 in the AR of Crimea bear some resemblance to early 1990s, first of all, from
the viewpoint of weakening influence of the central authorities on Crimean developments, growing
activity of pro-Russian forces, growth of conflicts in social and especially inter-ethnic relations.
The “intermediate” stage of 1994-2004 brought some stabilisation of the situation. However, starting
from 2005, the vector of its development changed, and in the second half of 2008, it might be termed as
pre-conflict.
In such conditions, contradictions in different sectors of public life – political-administrative, socioeconomic,
humanitarian – turned into factors of aggravation of tension in the relations between dominant
socio-cultural groups in the AR of Crimea.
1 Application of this approach, also known as “crisis management”, has become “a chronic disease” of the entire state and authorities on all levels in the years
of Ukraine’s independence. It is most vividly manifested in “replication” of great many concepts, strategies, programmes, not related with each other and having no
common basis – a strategy of development of Ukraine. It is contrasted by a systemic approach that provides for elaboration of a set of interrelated measures,
backed with resources and encompassing the entire range of state (region, branch, etc.) development objectives.
2 On February 21, 2006, Ukraine’s President V.Yushchenko had a meeting with the autonomy leadership, where a decision was taken to set up a working group for
drafting the Strategy. The working group was led by then head of the Presidential Secretariat O.Rybachuk and NSDC Secretary A.Kinakh. According to then NSDC
Secretary A.Kinakh: “…Special attention at the Strategy development will be paid to improvement of the investment climate, creation of new working places,
development of the tourism and recreation industry, fair solution of the land issue, promotion of extraction of energy resources..., the strategy will provide
for creation of mechanisms of cooperation between the authorities and the public, an effective human resources policy, maintenance of law and order, fighting
corruption.., particular attention will be paid to harmonisation of inter-ethnic relations, creation of proper conditions for representatives of deported peoples
without violation of legitimate interests of the present population of Crimea”. See: Working visit by the Head of Secretariat to the AR of Crimea. – Press Service
of the President of Ukraine, February 27, 2006, http://www.president.gov.ua
2.1. INEFFECTIVE MANAGEMENT OF SOCIAL
PROCESSES IN CRIMEA
Management of social processes in Crimea bears
a number of shortcomings directly and indirectly
contributing to the aggravation of social relations in
the autonomy. The main of those shortcomings are the
ineffectiveness of the central and Crimean authorities
and their interaction, lack of effective mechanisms which
consider the needs of Crimean Tatars, corruption in the
bodies of power.
Low effectiveness of the authorities (both central and
Crimean) at solution of the key problems of Crimea, poor
interaction among the institutes of governance of Ukraine
and the autonomy stem from many long-standing problems
resolved in Ukraine very slowly or not resolved at all.
Such problems include, first of all: absence of a systemic
approach in the authorities’ activity; organisational
problems of institutional interaction; ineffectiveness of the
mechanisms considering the interests of the AR of Crimea
during state policy formulation; political contradictions;
low executive discipline.
Absence of a systemic approach in the authorities’
activity. Although yet in 1994-2004, the situation in the
AR of Crimea was somewhat stabilised, this was done
through tactical measures effective in the short run, at the
expense of accumulation of “delayed problems”, manifested
now, in their combination and in a new quality1.
The need of a systemic, strategic approach to solution
of complex problems is realised very slowly, and its
practical implementation is hindered on all levels of the
bureaucratic machinery. Apparently, the absence of an
overall strategy of Ukraine’s development is the main
outside factor seriously complicating the planning of
Crimean development strategy.
The central authorities still have no effective and
clear policy with respect to Crimea and no strategy of the
autonomy development within Ukraine. Such situation
largely deprives the autonomy of the right reference points
and gives it an opportunity to set their own ones, that may
run contrary to the prospects of development of Ukraine as
a whole, as seen by the central authorities.
Say, Ukraine’s Parliament has not passed the Law “On
Fundamentals of Home and Foreign Policy of Ukraine”
and conceptual legislative documents (concepts, principles
of the state policy) in the most sensitive for Crimea sectors:
ethno-national, language, information, religious.
Only at the beginning of 2006, the President of
Ukraine announced plans of working out a strategy of
development of the AR of Crimea, specified its key
parameters and made some practical steps2. However,
those plans remained just plans.
Instead, in 2006-2008, the President of Ukraine issued
a number of decrees effectuating NSDC decisions on
Crimean issues. Those documents mentioned a wide
FACTORS INFLUENCING
THE SITUATION
IN CRIMEA
2.
30 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
Lack of realism in the programmes of settlement
and amenities for repatriates (including construction of
housing and utility infrastructure, schools, healthcare
establishments, etc), absence of practical results of the
land reform (inventory and development of the land
cadastre, land management, rational development of
recreational and preserve areas, urban construction9) lead
to differences between programmes of development of
the humanitarian sector, other programmes and plans.
In addition to the imposed deficit of resources for social
needs, including of repatriates (and associated rivalry for
resources), such situation prompts excessive politicisation
of social relations, corruption, growth of radical protest
spirits in society10.
So, absence of a strategic, systemic approach to
solution of problems on the central and republican
levels leads to their gradual accumulation, aggravation,
affecting the character of social relations in the AR of
Crimea.
Legal and organisational problems of institutional
interaction between the central and Crimean authorities.
Tension in the relations between the central and Crimean
authorities has been evident since Ukraine’s independence.
It is prompted by the vagueness and controversy of
some provisions of the fundamental documents – the
Constitutions of Ukraine and the AR of Crimea – and other
Ukrainian laws specifying the powers of the Verkhovna
Rada of the autonomy. In particular, the Constitution the
AR of Crimea refers to its competence some functions
not provided by the Constitution of Ukraine, including
participation in the formulation and implementation of
Ukraine’s foreign policy, which results in legal collision
and aggravation of political confrontation11. The Law
of Ukraine “On Verkhovna Rada of the AR of Crimea”
(item 2, Article 9) vests the exclusive right to amend the
Constitution of the autonomy to the Verkhovna Rada
of the AR of Crimea. At that, pursuant to the same Law
(Article 1), the Verkhovna Rada of the autonomy is to act
“within powers specified by the Constitution and laws of
3 President of Ukraine Decree “On Decision of the National Security and Defence Council of Ukraine of February 8, 2006 “On Social Situation in the AR of Crimea””
No. 154 of February 28, 2006.
4 Approved by the Cabinet of Ministers’ Resolution No. 1067 of August 30, 2007.
5 For more detail see: Competitiveness of the regions of Ukraine: state and problems. Razumkov Centre Analytical Report. – “National Security & Defence”,
2008, No. 4, pp.2-31.
6 Cabinet of Ministers’ Resolution “On Approval of the Programme of Settlement of and Amenities for Deported Crimean Tatars and Persons of Other
Nationalities who Returned for Residence in Ukraine, their Adaptation and Integration into Ukrainian Society through 2005” No. 618 of May 16, 2002. The
following Programme through 2010 was approved by the Cabinet of Ministers’ Resolution No. 637 of May 11, 2006. The Verkhovna Rada of the AR of Crimea
Resolution No. 102-5 of June 21, 2006, approved a programme of the same title, funded from the republican budget.
7 Report by the Director of Department for Affairs of Former Deportees on Ethnic Grounds of the State Committee of Ukraine for Nationalities and Religions
“Implementation of the Programme of Settlement of and Amenities for Deported Crimean Tatars and Persons of Other Nationalities who Returned for Residence
in Ukraine, their Adaptation and Integration into Ukrainian Society”. May 8, 2009, www.scnm.gov.ua/article/132148?annId=132149
8 According to the State Statistics Committee, in 2008, the inflation rate in the AR of Crimea hit 23.2%, as of May, 2009 – 8.9%. In the beginning of 2008, land
and housing prices in the autonomy were growing by some 45% per annum. See: “…from 2008, all operators expect intense growth of prices in Crimea (up to
50% per annum)”. Real Estate in Crimea. – Kyiv and Ukrainian Real Estate Portal, http://freehouse.com.ua/9
9 Such problems (and more of them) are specific of Ukraine as a whole. For more detail on the problems of the land policy in Ukraine see: State land policy in
Ukraine. – Working materials of Razumkov Centre for the Round-table “State and strategy of today’s land policy in Ukraine”, May 21, 2009, pp.4-13.
10 M.Dzhemilev: “It may be said that a state policy regarding Crimean Tatars is actually absent. I would not call it discriminatory. There is no thought-over policy.
That is the problem. And the lawlessness taking place here, gross violations of human rights are authorised not from Kyiv but from local chauvinist pro-Russianminded
elements”. See: Artemenko M. “Third force” trying to make Crimean Tatars separatists? – “Holos Kryma”, March 14, 2008.
11 For more detail see. Crimea on the political map of Ukraine. Razumkov Centre Analytical Report. – “National Security & Defence”, 2001, No. 4, pp.14-17.
On June 6, 2006, the Verkhovna Rada of the AR of Crimea passed a declaration protesting against the presence of units of the US and NATO armed forces on
the territory of the autonomy, calling for declaration of Crimea a NATO-free territory and demanding cancellation of the military exercise Sea Breeze 2006 in
the autonomy. See: Verkhovna Rada of the AR of Crimea refuses to cancel its decision declaring Crimea “a NATO-free territory”. – UNIAN, September 5, 2006.
A group of members of the Verkhovna Rada of the AR of Crimea initiated a Crimean referendum on declaration of the autonomy a “NATO-free territory”. See:
Conduct of a local referendum on Ukraine’s NATO membership does not fall within the competence of the Verkhovna Rada of the AR of Crimea. Representation
of the President in Crimea. – UNIAN, October 9, 2006. Sea also: Crimean Parliament calls for boycott of the National Council decision which bans broadcasting
of Russian TV channels. – UNIAN, October 23, 2008.
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
range of problems topical for the autonomy. However,
the great number of assignments given to the authorities
in pursuance of those decisions looked like an attempt
to solve all problems at a time, each dealing with a set
of different problems (for instance, distribution of land
resources, creation of new working places, guarantee of
the right to education in the native language, etc.), and
required special preparation and everyday attention3.
Deemed strategic, with some reservations, may be the
State Programme of Socio-Economic Development of the
AR of Crimea through 2017 approved by the Cabinet of
Ministers in August, 2007.4 But in absence of a strategy
of development of entire Ukraine, the Programme targets of
budget funding cannot be considered at least tentative, and
the designed plans – realistic5.
Regarding the problems of repatriates, transition of
the central authorities in 2002 and Crimean authorities
in 2006 from programmes of solution of important but
local tasks guaranteeing the rights of Crimean repatriates
to comprehensive programmes of their settlement and
amenities was a positive step6. However, the funding of
those programmes is insufficient to call them effective
(Table “Budget expenditures on programmes of amenities
for repatriates”7): absolute growth of budget expenditures
is offset by inflation and growth of prices of land and
housing8; actual satisfaction of programme requirements
during the implementation of the latest Programme
gradually goes down (from 80% to 70% – for national
and from 99% to 54% – for Crimean); state budget funds
are allocated irregularly (mainly in the last quarter, which
complicates their use).
Budget expenditures on programmes
of amenities for repatriates,
UAH million
Budgets 2002 2003 2004 2005 2006 2007 2008 2009
plan
State 40.0 46.0 50.0 61.4 53.1 66.3 64.4 53.3
Republican 10.5 18.3 19.8 21.3 24.5 26.0 30.0
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 31
FACTORS INFLUENCING THE SITUATION IN CRIMEA
Furthermore, according to the Constitution of the AR
of Crimea (Article 26), heads of some territorial units of
central executive bodies (ministries, state committees,
etc.) active on the territory of the autonomy are appointed
and dismissed with the consent of the Verkhovna Rada of
the AR of Crimea15. Experience proves that differences on
specific candidates may also cause tension in the relations
between Kyiv and Simferopol16.
Therefore, legal uncertainty and imperfection
of the system of governance in Ukraine at different
levels strongly contribute to ineffective institutional
interaction between the central and Crimean
authorities. The supreme Ukrainian authorities do not
fully employ their available powers and possibilities for
implementation of the state policy in the autonomy.
Absence of mechanisms of account of Crimean
interests in the formulation of the state policy. The
Constitution of the AR of Crimea (Article 3) guarantees
“account of the specificity of the AR of Crimea envisaged
by the Constitution of Ukraine by Ukrainian bodies of state
power passing decisions concerning the AR of Crimea”,
and “participation in formulation and implementation of
the main principles of home political, foreign economic and
foreign political activity of Ukraine in issues concerning
the AR of Crimea”17. However, the mechanisms of such
participation are poorly specified or ineffective.
For instance, Crimea is represented in the Verkhovna
Rada of Ukraine by 11 MPs18 who belong to different
parliamentary factions (not more than three in each)
and, given the ideological differences and political
contradictions among parliamentary factions, cannot act
as a united “Crimean lobby”.
There is a consultative-advisory body under the
President of Ukraine – the National Council for Interaction
between the State Authorities and Local Self-Government
Bodies, whose main task lies in “review, discussion and
generation of a coordinated position on issues of state and
regional importance”19. Crimea has six representatives in
that body20. However, the Council acts rather formally
(it met only once), and practical results of its activity are
absent.
According to the Constitution of the AR of Crimea,
the autonomy has its Permanent Representation in
Ukraine’s capital. However, its duties are mainly confined
to organisational support for the interaction of Crimean
Ukraine”. However, the absence of laws on some domains
(e.g., on fundamentals of home and foreign policy) and
internal controversy of the current legislative framework
of Ukraine give Crimeans a free hand in the promotion of
their initiatives and political interests.
Meanwhile, according to the Constitution of Ukraine,
Ukraine’s Parliament may, under certain conditions,
terminate powers of the Verkhovna Rada of the AR
of Crimea ahead of time (item 28, Article 85), and the
President is entitled to invalidate acts of the Council of
Ministers of the AR of Crimea (item 16, Article 106).
In practice, however, there have been no such precedents.
There are serious drawbacks in the organisation of the
system of governance in the autonomy. For instance, the
Council of Ministers and local state administrations in
the AR of Crimea, on one hand, are elements of the state
executive branch12. Meanwhile, according to Crimean
Constitution, the Council of Ministers is formed by the
Verkhovna Rada of the AR of Crimea and is accountable to
it. District state administrations (DSA) in Crimea belong
to the single system of executive bodies of Crimea. Those
bodies and their heads report and are accountable to the
Council of Ministers of the AR of Crimea13. Meanwhile,
DSA heads are appointed by the President of Ukraine upon
the submission by the Cabinet of Ministers of Ukraine,
their deputies – by DSA heads, but upon coordination with
the Cabinet of Ministers of Ukraine.
Therefore, the Council of Ministers of the AR of
Crimea and DSAs de jure have dual subordination and
powers, whose division with central executive bodies
and procedures of exercise are not always clear, lack
mechanisms of control and responsibility. In particular, this
refers to the management of budget funds (central agencies)
and responsibility for implementation of programmes and
plans (Crimean executive bodies).
Insufficiently clear division of areas of responsibility
between the central and Crimean authorities, in presence
of political contradictions between them, creates
preconditions for disregard or even wilful obstruction
to implementation of decisions of the central authorities
on the territory of the autonomy by Crimean bodies of
power. One example here is presented by the practice of
disregard of some decisions of the central authorities by
local bodies of power or even opposition to them rooted
in 2006-2008 (especially in “politically sensitive” sectors,
such as foreign, information, educational policy)14.
12 According to the Law “On Cabinet of Ministers of Ukraine” (Article 1), the Government of Ukraine “exercises executive power directly and through ministries,
other central executive bodies, the Council of Ministers of the AR of Crimea and local state administrations, directs, coordinates and controls the activity of those
bodies”. Furthermore, according to Article 41 of that Law, the Cabinet of Ministers of Ukraine “directs and coordinates the activity of the Council of Ministers of
the AR of Crimea at implementation of the Constitution and laws of Ukraine, acts of the President of Ukraine and acts of the Cabinet of Ministers of Ukraine on
the territory of the AR of Crimea”.
13 Regulations of the Council of Ministers of the AR of Crimea (Article 33), approved by a resolution of the Council of Ministers of the AR of Crimea of September 23, 1998.
14 Volkova A. Ministry of Education of Crimea allowed teachers not to follow Kyiv’s order of Ukrainisation of schools. – “Krym-Novosti” internet publication,
August 27, 2008, http://from.crimea.ua
15 E.g., Head of the Main Administration of the Ministry of Internal Affairs of Ukraine in Crimea, Head of the Main Administration of the Ministry of Justice in Crimea,
General Director of “Krym” State Television and Radio Company. The candidacy of the Public Prosecutor of the AR of Crimea is agreed only during his appointment.
16 E.g., the conflict concerning the appointment of M.Ilyichov the Head of the Main Administration of the Ministry of Internal Affairs of Ukraine in Crimea.
17 Constitution of the AR of Crimea (Item 3, Part 1, Article 18). We do not consider here the correspondence of this provision to the Constitution of Ukraine,
emphasising that the provision is valid and gives the AR of Crimea the relevant rights.
18 All colours of the nation. Full list of national deputies of the 6th convocation (prepared by “Expert Centre”). – “Obkom” internet publication, October 16, 2007,
http://www.obkom.net.ua
19 President of Ukraine Decree “Issue of the National Council for Interaction between the State Authorities and Local Self-Government Bodies” No. 241 of March 20, 2008.
20 The are: Chairman of the Verkhovna Rada of the AR of Crimea A.Hrytsenko, Chairman of the Council of Ministers of the AR of Crimea V.Plakida, People’s
Deputy of Ukraine M.Dzhemilev, Permanent Representative of the President of Ukraine in the AR of Crimea L.Zhunko, Simferopol City Mayor H.Babenko, Head
of Sevastopol City State Administration S.Kunitsyn.
32 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
The opposition to the central authorities also got control
over the majority of city and district councils in the
autonomy25. The early parliamentary elections- 2007 only
deepened the rift.
Ideological positions of the central (the President,
the parliamentary coalition and the Cabinet of Ministers
formed by it) and Crimean authorities on a number of
sensitive for society issues (language, foreign political
orientation of Ukraine, attitude to the historic past) proved
irreconcilable. The rift ran along the lines “wider use of
the Ukrainian or Russian language as the second official
language; accession to NATO or to the Federal State of
Russia and Belarus”, etc. Advocacy of those positions
during election campaigns contributed to the split in
society and prompted further complication of the situation
in the autonomy.
The conflict was further aggravated by the fact that the
political forces that came to power in Crimea (the Party of
Regions) saw Crimean elections as kind of a “revenge” for
their defeat at the election of the President of Ukraine26. The
same were the feelings of the majority of Crimeans who,
as we noted above, disapproved the “Orange authorities”.
This laid down the conflict background for the
relations of the central and Crimean authorities, against
which, ineffective management of social processes,
concentration of the authorities on political “battles”
shattered respect for them in society, impaired tools
of influence on the situation and prompted citizens to
solve problems by their own efforts.
Low executive discipline. In 2005-2008, a number
of decisions were passed whose implementation could
contribute to normalisation of the situation in the autonomy,
solution of some problems or neutralisation of conflicts’
factors. However, those decisions were never implemented –
in part, due to their poor planning, in part, because of the
low executive discipline.
The low executive discipline is showily demonstrated by
the above-mentioned Decrees of President V.Yushchenko
on Crimean issues27. While the first of them, following an
NSDC decision, set tasks for the state authorities covering
the whole range of problems of amenities for Crimean
Tatar repatriates and their integration into Ukrainian
society, the other two stated non-implementation (or late
implementation) of the previous and set new tasks that
were implemented not much better.
In particular, the President of Ukraine Decree No. 154
of February 28, 2006, assigned the Government to draw
up and submit “within four months a bill of fundamentals
of the ethno-national policy”. Such a bill prepared by the
Cabinet of Ministers was registered in the Verkhovna Rada
of Ukraine six months later – only on December 30, 2008.
21 Law of Ukraine “On Representation of the President of Ukraine in the AR of Crimea”.
22 In 2005-2008, five permanent representatives of the President of Ukraine in the AR of Crimea changed seats. The post was occupied by V.Kulish (September
2005 – May 2006), H.Moskal (May 2006 – January 2007), V.Shemchuk (February 2007 – May 2007), V.Khomenko (July 2007 – December 2007), L.Zhunko
(since January 2008).
23 Data of the official web site of the Central Election Commission of Ukraine, http://www.cvk.gov.ua
24 According to then Chairman of the Council of Ministers of the AR of Crimea S.Kunitsyn, the situation in Crimea in late 2004 – early 2005 “was so tense that
one wrong move could lead to bloodshed”. See: Kunitsyn believes that after the Orange Revolution, information and political freedom appeared in Ukraine. –
UNIAN, November 22, 2006.
25 For more detail see: Tyshchenko Yu., Khalilov R., Kapustin M., Socio-political processes in the AR of Crimea: key trends. Kyiv, Ukrainian Center for Independent
Political Research, 2008. – http://www.ucipr.kiev.ua
26 Election to Ukraine’s Parliament of a number of politicians known for their extreme “anti-Orange” stand during the presidential elections-2004 (e.g.,
N.Shufrych, D.Tabachnyk) also contributed to that process.
27 President of Ukraine Decrees “On Social Situation in the AR of Crimea” No. 154 of February 8, 2006; “On Decision of the National Security and Defence
Council of Ukraine of September 20, 2006 “On Implementation of the Decision of the National Security and Defence Council of Ukraine of February 8,
2006 “On Social Situation in the AR of Crimea” No. 822 of October 9, 2006; “On Decision of the National Security and Defence Council of Ukraine of May
16, 2008 “On Progress of Implementation of Decisions of the National Security and Defence Council of Ukraine on Situation in the AR of Crimea” No. 589 of
June 26, 2008.
authorities and their leaders with the central Ukrainian
authorities, including document circulation.
The Permanent Representation of the President of Ukraine
in the AR of Crimea, with its status and powers (mainly
controlling and information-analytical),21 can contribute
to consideration of the specificity of the peninsula and the
opinion of Crimean authorities during passage of the relevant
decisions by the central authorities. However, in 2005-2008,
the representation saw frequent personal changes, which
impaired the ability of that body to be a sound “communicator”
between the President and Crimean authorities22.
Therefore, the mechanisms of consideration of
interests of the autonomy at formulation of Ukraine’s
state policy are either not used, or used ineffectively,
which widens the split between central and regional
authorities, including political, and disables tools of
solution of urgent problems.
Political contradictions between central and
Crimean authorities. Some normalisation of the situation
in the AR of Crimea in late 1990s - early 2000s rested on
the relative loyalty of the local authorities to the central.
Not least of all, such loyalty was ensured by the electoral
support of Crimeans for the President elected in 1994 and
1999 (at the former elections, L.Kuchma won support
of 83% of Crimeans, at the latter – slightly yielded to
P.Symonenko: 34% against 38%).
After the elections-2004, the situation changed
fundamentally. The overwhelming majority of Crimean
voters (81%) in the repeated second round of elections of
the President of Ukraine (December 26, 2004) voted for
V.Yanukovych, while V.Yushchenko, elected Ukraine’s
President, got votes of 15% of Crimeans; in particular, in
Sevastopol, the ratio was 89% to 8%23.
Therefore, the majority of Crimean residents did
not support the new “Orange” rulers (including the
Government led by Yu.Tymoshenko and other authorities
led by representatives of the “Orange team”), which
affected the relations between Kyiv and the autonomy24.
In 2005, the relations between the central and Crimean
authorities resembled a “wait-and-see” policy, due to the
forthcoming elections of the Verkhovna Rada of Ukraine
and local self-government bodies, whose results could
influence the character of those relations.
The results of the elections held in March 2006 added
to the confrontation between the central authorities, on one
hand, and the authorities and local self-government bodies
of Crimea – on the other. The elections gave the majority
in the Verkhovna Rada of the AR of Crimea to the political
forces opposing the central authorities. The coalition formed
the Council of Ministers of the autonomy led by V.Plakida.
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 33
Presidential Decree No. 589 assigned the Cabinet of
Ministers of Ukraine to officially investigate the reasons for
non-implementation of NSDC decisions and subsequent
decisions of the Government concerning the AR of Crimea
and take appropriate measures upon its results, including
bringing those guilty to responsibility. So far, nothing has
been reported about the results of the official investigation
and associated penalties.
Parliament’s attention to the problems of the AR
of Crimea and parliamentary control in that sector is
clearly insufficient. It is suffice to remind that the latest
parliamentary hearings on those issues took place on
April 20, 2000, their recommendations were implemented
only in part, and the reasons for non-implementation are
unknown28.
In some cases, low executive discipline causes
additional tension in society. The most recent example
was presented by a Crimean Tatar picket at the Cabinet
of Ministers of Ukraine (from April 11, 2009) in response
to non-fulfilment of the Prime Minister’s promise to
solve the land issue in Crimea29. Escalation of events is
demonstrative – evolution of pickets with purely land
requirements into a hunger strike and protest under political
slogans: demands of picketers to allot Crimean Tatars 845
hectares of land managed by the central authorities yielded
to slogans “We will do our best for the world to know true
face of Ukrainian authorities”, “We will cut Ukraine’s road
to European Union” 30.
Low executive discipline, along with political
obstruction of decisions of the central authorities on
Crimean issues, make those decisions actually no-go,
depriving the authorities of trust of citizens who ever more
resort to protest actions.
Disregard of needs of Crimean Tatars
Poor regard of the needs of Crimean Tatars is one of the
factors of growth of tension in social relations in the AR of
Crimea. Its main reasons include limited representation of
Crimean Tatars in the bodies of power, their deprivation of
the ability to solve problem issues by referendums and bias
of local authorities to their rights and needs.
Limited representation of Crimean Tatars in the
Ukrainian bodies of power. The political leadership
of Crimean Tatars seeks a higher status for national
self-government bodies of Crimean Tatar people –
Kurultay and Majlis31 – and greater effectiveness of
their interaction with the central and Crimean authorities.
However, those aspirations meet little support from the
central and Crimean authorities.
For instance, in the Verkhovna Rada of Ukraine of
the 6th convocation, the interests of Crimean Tatar people
are represented by one MP – Majlis leader M.Dzhemilev
(parliaments of previous convocations had no more than
two Crimean Tatars).
The Council of Representatives of Crimean Tatar
People under the President of Ukraine was established
in 199932. During L.Kuchma’s presidency, it met rather
regularly, although far from all assignments given upon
the meeting results were executed, which was from
time to time brought to the attention of the Presidential
Administration by the Majlis Legal Service. However,
over the entire term of presidency of V.Yushchenko, the
Council of Representatives of Crimean Tatar People met
only once – in the first half of 2005, and since then, the
President has issued only one document relating to formal
aspects of its activity33.
There is the Council for Ethno-National Policy
under the Head of State, including one representative of
Crimean Tatar people34. However, so far, that body exerts
little influence on policy making and implementation in
that sector.
Therefore, the mechanisms of interaction of
national self-government bodies of Crimean Tatars
with Ukraine’s state authorities are still confined to
participation of their representatives in consultativeadvisory
bodies under the President of Ukraine, whose
activity is mainly declarative.
Representation of Crimean Tatars in bodies of
power of the autonomy35 (Insert “Legal framework
for participation of Crimean Tatars in bodies of power”).
After the latest (2006) elections held on a proportional
basis, seven representatives of Crimean Tatars were
elected to the Verkhovna Rada of the AR of Crimea. For
comparison: at the elections-1998 held under the majority
system (after the cancellation of the national quota), only
one Crimean Tatar was elected to the Verkhovna Rada of
the AR of Crimea, with support of Crimean republican
CPU organisation. After the elections-2002, also held by
the majority system, eight Crimean Tatars were elected to
the Supreme Verkhovna Rada of the AR of Crimea, six of
them – supported by Kurultay of Crimean Tatar people.
It was much more than local experts expected, but very
few, in the opinion of Crimean Tatar politicians – half of
Crimean Tatar’s share in the population of the autonomy.
The Permanent Commission of the Verkhovna Rada of
the AR of Crimea for Inter-Ethnic Relations and Problems
of Deportees (15 persons) includes three representatives
28 For the results of the Parliamentary hearings see: official web site of the Verkhovna Rada of Ukraine, http://portal.rada.gov.ua
29 On the road to Crimean Tatar autonomy. – “Odna Rodina” Internet project, December 18, 2008, http://odnarodyna.ru/articles/6/415;
30 Crimean Tatars promise to cut Ukraine’s road to the European Union. – “Ukrainska Pravda”, June 9, 2009, http://ua.pravda.com.ua/news/2009/6/9/96170;
Crimean Tatars will complain to the EU and UN about Ukraine. – “Glavred”, June 9 2009, http://ua.glavred.info/archive/2009/06/09/100523-18
31 Kurultay of Crimean Tatar people – national congress, supreme plenipotentiary representative body of Crimean Tatar people. Majlis of Crimean Tatar people is
the only supreme plenipotentiary representative body of Crimean Tatar people in-between Kurultay sessions. It is elected by Kurultay from among its delegates.
The hierarchy includes local Majlises subordinated to Majlis of Crimean Tatar people. See: Procedures of Kurultay… and Regulations of Majlis... – Centre of
Information and Documentation of Crimean Tatars, http://www.cidct.org.ua
32 President of Ukraine Decree “On Council of Representatives of Crimean Tatar People” No. 518 of May 18, 1999
33 President of Ukraine Decree “On Amendment of Regulations of Council of Representatives of Crimean Tatar People” No. 767 of September 21, 2.006
34 President of Ukraine Decree “On Council of Representatives of Crimean Tatar People” No. 428 of May 22, 2005.
35 Third Report of Ukraine on implementation of the Council of Europe Framework Convention for the Protection of National Minorities, 2009 – official web site of
the State Committee of Ukraine for Nationalities and Religions, http://www.scnm.gov.ua/control/uk/publish/article?art_id=131306.
FACTORS INFLUENCING THE SITUATION IN CRIMEA
34 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
of Crimean Tatars (including the Commission Chairman
R.Ilyasov), the Permanent Commission for Restoration of
Rights of Rehabilitated Persons (nine members) – one.
Under the Chairman of the Verkhovna Rada of the
AR of Crimea, there is the Council for Human Safety and
Development acting as a consultative-advisory body in the
field of inter-ethnic relations (22 members) that includes
two representatives of Crimean Tatar people. In 2007-
2009, the Council held two meetings (dealing with the
land issue and problems of housing and utility services)
and a round-table on the role of small business.
Representatives of Crimean Tatar people hold rather
high posts in the highest echelons of executive power in
Crimea36, but their representation is of political, sometimes –
of personal rather than legal character. Since the Council
of Ministers is formed by the Verkhovna Rada of the
AR of Crimea, representation of Crimean Tatars on the
upper levels of the executive branch entirely depends on
the political will and interests of the majority in Crimean
Parliament. The executive authorities of Crimea, including
in Council of Ministers of the autonomy, ministries and
committees, now employ 140 state servants who are
repatriates (12.9% of all officers of those bodies).
Republican executive bodies employ 27 state servants
of category І-ІІІ from among repatriates, including one
First Deputy Chairman of the Council of Ministers of the
AR of Crimea; one minister; three heads of republican
committees.
On the level of local state administrations (in particular,
district – DSA), Crimean Tatars are represented among
DSA heads and deputy heads, first of all, in districts where
their share of the population is high enough. Representation
of specific national groups in DSAs depends on the
political will of Ukraine’s President and the Government.
18 repatriates work at 14 DSAs in Crimea as heads, first
36 Namely, the Minister of Labour and Social Policy, the First Deputy Minister of Housing and Communal Services, a Deputy Minister of Economy, a Deputy
Minister of Culture and Arts, a Deputy Minister of Education and Science, a Deputy Minister of Health, the Head and Deputy Head of the Republican Committee
for Inter-Ethnic Relations and Deportees, the Head of the Republican Information Committee, the Head of the Republican Committee for Waterwork Construction
and Irrigated Farming, a Deputy Head of the Republican Committee for Land Resources, a Deputy Head of the Republican Committee for Religions.
deputy and deputy heads of district state administrations,
two of them – DSA heads. All in all, DSAs and executive
bodies of local councils employ 165 state servants who are
repatriates (12.4% of all officers).
125 Crimean Tatars are members of city and district
councils. Out of 309 elected settlement and village elders,
24 (7.7%) are Crimean Tatars (for data of the share of
Crimean Tatars in local self-government bodies of the
AR of Crimea see map, pp.42-43 ).
There is a large disparity in the number of Crimean
Tatars in elected bodies of power of Crimea: in the
Verkhovna Rada – 7%, in local self-government bodies –
from 5.6% to 22%, which is 1.5-2.5 times below their
share in the population of the autonomy and its separate
districts.
Participation in referendums. In principle, some
problems of Crimean Tatars may be solved by direct
manifestation of people’s will, without mediation of the
authorities – through all-Ukrainian, republican and local
referendums. However, the effectiveness of that method
is doubtful.
The Law “On All-Ukrainian and Local Referendums”
envisages, apart from all-Ukrainian, a republican
referendum in the AR of Crimea and local referendums.
A Crimean republican referendum may concern adoption,
amendment or cancellation of decisions on issues referred
by the Ukrainian legislation to the competence of the AR
of Crimea. A local referendum may concern adoption,
amendment or cancellation of decisions referred by
the legislation of Ukraine to the competence of local
self-government bodies of the relevant administrativeterritorial
units.
However, proceeding from the norms of the effective
legislation, a national minority can initiate a referendum,
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
The Law of Ukraine “On Election of Members of the Verkhovna
Rada of the AR of Crimea, Local Councils and Village, Settlement,
City Mayors” provides that members of the Verkhovna Rada of
the AR of Crimea are elected under the proportional system, i.e.,
its members are elected by election lists of republican
organisations of political parties and election blocs of organisations
of political parties in the multi-mandate election district whose
boundaries coincide with the boundaries of the AR of Crimea. The
Law prohibits any direct or indirect privileges in election rights,
including on ethnic grounds.
Members of district, city district and city councils in the AR
of Crimea are elected under the proportional system, members
of village and settlement councils – under the majority system
in single mandate constituencies, into which the territory of the
concerned settlement or a rural community uniting residents of
several villages is divided. Voting rights require affiliation with the
concerned territorial communities, permanent residence on the
territory of the concerned administrative unit (in the given case –
the AR of Crimea).
According to the Ukrainian legislation, entitled to serve in local
self-government bodies are persons who have the appropriate
education and professional training, command the official
language in the scope sufficient to discharge official duties.
The Law does not envisage any privileges on ethnic grounds for
employment at local self-government bodies*.
The Law of Ukraine “On State Service” specifies few but
clear criteria of getting the right to state service – appropriate
education, professional training, competitive selection. No other
privileges for state service are envisaged, including on ethnic
grounds.
LEGAL FRAMEWORK FOR PARTICIPATION OF CRIMEAN TATARS IN BODIES OF POWER
* Law of Ukraine “On Service in Local Self-Government Bodies”. Under certain circumstances, the procedure of employment enables indirect
application of the ethnic criterion. For instance, pursuant to Article 10, on as-needed basis, with the parties’ consent, an official of a local
self-government body may be moved to an equivalent or lower position or position of an advisor of consultant without competitive selection. The
very procedure of competition specified by the Cabinet of Ministers of Ukraine Resolution “On Approval of the Procedure of Competition for Vacant
Positions of State Servants” No. 169 of February 15, 2002, allows application of subjective, including ethnic, criteria during competitive selection, for
instance, during interviews with candidates.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 35
and moreover, secure the required result, only if it
manages to convince in its rightfulness the necessary
number of representatives of other ethnic groups, or (in
case of a local referendum) if it makes a majority of the
population of the concerned administrative-territorial
unit. In such conditions, Crimean Tatars actually have no
chances to succeed at an all-Ukrainian, Crimean republican
referendum or local referendums in Crimea37.
Therefore, Crimean Tatars have no adequate
representation in the authorities and self-government
bodies of Crimea, their ability to influence the authorities
in issues concerning their interests is limited. This
prompts representatives of that community to resort to
other forms of defence of their interests, including those
that can stir up a conflict between Crimean Tatars and
representatives of the Slavic community of Crimea.
Bias of Crimean authorities in sensitive for interethnic
relations issues. In 2004-2009, most decisions of
the Verkhovna Rada of the AR of Crimea dealing with
inter-ethnic problems dealt with the language issue. Twelve
out of fifteen such documents pursued protection and
development of the Russian language in different sector,
two – Ukrainian, one – Crimean Tatar38. Analysis of the
content of those decisions gives grounds for the conclusion
of bias of that body in language issues, in particular, its
focus on protection of the interests of only one, Russianspeaking
community39.
Also demonstrative in this respect were some resonance
decisions on foreign policy and humanitarian issues40.
They fully match the system of values of the “Slavic
community” dominating on the peninsula. That approach
may be deemed to contribute to conflicts in inter-ethnic
relations.
In the issues of amenities for repatriates, Crimean
authorities as a matter of principle insist on solution of
socio-economic issues, irrespective of nationality (while
Crimean Tatars insist that they were deported on national
grounds).
In that period, Crimean Council of Ministers passed
more than 30 resolutions on inter-ethnic relations. Those
decisions mainly dealt with amenities and socio-cultural
development of repatriates (approval of annual plans of
implementation of the relevant programmes of amenities,
measures at commemoration of anniversaries of the
deportation, preservation and development of languages
and cultures, etc), solution of concrete problems in
specific districts and settlements of the autonomy. In
the result of ineffectiveness of inter-budget relations
and limitations of the republican budget, most of those
decisions remain on paper.
In the field of socio-economic relations, most violations
that may conventionally be attributed to ethnic reasons are
observed on the level of local authorities and local selfgovernment
bodies. They mainly deal with land issues and
provision with housing.
In the result of ineffectiveness of the central and
Crimean authorities, excessive politicisation of their
relations and lack of constructive interaction between
them, an unhealthy situation has been formed in Crimea
with access of citizens and communities to basic life
resources: administrative-legal (representation in the
bodies of power, employment), material (land, housing),
socio-cultural (education, sources of information
in native language). Crimean Tatars suffer greater
discrimination in access to those resources.
Corruption in Crimean bodies of power
The high rate of corruption in Ukraine in general is
recognised within the country and by the international
community, and requires no proof. The official statistics
is unreliable and produce no idea of the true scale of that
phenomenon. The data obtained during expert and public
opinion polls deserve more trust. According to the expert
poll, the problem of corruption is the second important
(32.5%) for Crimea (after land problems – 36.2%), while
public opinion polls ranked corruption first among the
socio-political problems that bother Crimeans. The urgency
of solution of that problem in the authorities is generally
recognised by 49.7% of those polled, in law-enforcement
and judicial bodies – by 38,5%, in the field of allotment of
land – by 34.8%.
People consider the worst hit by corruption the sectors
immediately dealing with human life (land as the place
of residence and a life resource, healthcare, education,
transport, utilities) 41.
37 International organisations, in particular, OSCE, worked out recommendations for effective participation of representatives of national minorities in sociopolitical
life. In this connection, the difference of the status of national minorities and indigenous peoples important for Crimean Tatars is disregarded, with the
emphasis made on the mechanisms of involvement in socio-political life instead.
38 See, in particular: resolutions (decisions) of the Verkhovna Rada of the AR of Crimea: “On Approval of the Programme of Development and Functioning of the
Ukrainian Language in the AR of Crimea in 2004-2010” No. 856 of March 17, 2004; “On Appointment of a Republican (Local) Consultative Referendum on the
Initiative of Citizens of Ukraine Permanently Living in the AR of Crimea” No. 1578 of February 22, 2006; “On Progress of Implementation of the Verkhovna Rada
of the AR of Crimea Resolution of April 15, 1998, No. 1505 “On Guarantee of Functioning of the Official, Russian and other Languages in the AR of Crimea” No.
214 of October 18, 2006; “On Progress of Implementation of Resolutions of the Verkhovna Rada of the AR of Crimea on Issues of Use the Official, Russian and
other Languages in the AR of Crimea” No. 391 of March 22, 2007; “On Use of Languages at Organisation of Educational Process in Educational Establishments
of the AR of Crimea” No. 905 of June 18, 2008; “On Appeal to the Verkhovna Rada of Ukraine, Cabinet of Ministers of Ukraine on the Need of Conduct of
External Independent Evaluation of Progress in Studies of Graduates of Educational Establishments of the AR of Crimea in the Languages of Study” No. 962 of
September 17, 2008; “On Draft Law of Ukraine “On Amendment of the Law of Ukraine “On Television and Radio Broadcasting” No. 3963 of September 17, 2008,
and “On Constitutional Inquiry about Correspondence to the Constitution of Ukraine (Constitutionality) of Parts One and Two of Article 42 of the Law of Ukraine
of December 21, 1993, No. 3759 “On Television and Radio Broadcasting” No. 1042 of November 19, 2008; “On Measures in Support for the Russian Language
in the Field of Education in the AR of Crimea” No. 1248 of May 20, 2009.
39 For more detail see subsection 2.2 of this section.
40 In particular, the Verkhovna Rada of the AR of Crimea Decision “On Inadmissibility of Conduct on the Territory of the AR of Crimea of the Ukrainian-US
Military Exercise Sea Breeze 2009” No. 1211 of April 22, 2009; “On Barring Propaganda of Fascism and Racial Intolerance, Rehabilitation and Glorification of
Fascist Collaborationists” No. 1213 of April 22, 2009 (the Appeal of the Verkhovna Rada of the AR of Crimea to Verkhovna Rada of Ukraine approved by that
Decision expresses protest against actions aimed at rehabilitation of OUN-UPA “and their leaders S.Bandera and R.Shukhevych”).
41 Crimea: people, problems, prospects. Razumkov Centre Analytical Report. – “National Security & Defence”, 2008, No. 10, pp.36-38
FACTORS INFLUENCING THE SITUATION IN CRIMEA
36 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
Corruption, creating artificial preferences or
impediments for access of rank-and-file citizens to land
resources, seriously aggravates tension in relations between
different ethnic groups. Actually all publicised conflicts
between representatives of different groups recorded in
Crimea in the recent years stemmed from the land issue.
The same is witnessed by the differentiation of answers of
respondents from different socio-cultural groups: among
Crimean Tatars, facts of corruption in land issues were
encountered by 71% of those polled, among Russians –
63.1%, Ukrainians – 59.7%42.
In 2003, the Committee on Fighting Organised
Crime and Corruption of the Verkhovna Rada of Ukraine
noted the actual absence of reaction of Crimean lawenforcement
bodies to the spread of unlawful acts and
“evident corruption of officials of local authorities” in
the land sector, replacement of fighting organised crime
and corruption with “disclosure of minor crimes and
administrative responsibility for corrupt acts of secondary
officials”43.
After the presidential elections of 2004, the new
authorities pledged to step up efforts at fighting corruption.
Within a year after the inauguration of President Elect
V.Yushchenko, the supreme bodies of power passed
a number of acts intended to step up that fight44.
Problems of corruption in Crimea were dealt with in
the NSDC decision of October 26, 2006, stating the
need of implementation of a set of “additional measures
at detection, prevention and suppression of cases of
corruption and organised crime in the AR of Crimea”45.
In pursuance of anti-corruption initiatives of the central
authorities, authorities of the AR of Crimea passed some
decisions and took a number of measures46.
For instance, according to the head of Crimean police
M.Ilyichov, in the result of a special operation of the
Ministry of Internal Affairs and the General Prosecutor’s
Office of Ukraine on the territory of the AR of Crimea
conducted on June 12, 2008, a “record” bribe in the
amount of $5.2 million was documented. That bribe was
demanded by “functionaries from Partenit for allotment
of 17 hectares of land”47.
Departmental statistics of law-enforcement bodies
and reports of Crimean authorities give corruption data in
different forms, mixed with other data (e.g., of economic
crime, see Insert “Dynamics of economic crime in
Crimea in 2005-2008”), which complicates comparison
of data and assessment of the real situation. For instance,
the data of the Ministry of Internal Affairs of Ukraine
and the Main Administration of the Ministry of Internal
Affairs in the AR of Crimea presented in Insert reveal
different assessments, and therefore, different approaches
to fighting corruption.
42 Ibid.
43 Decision of the Committee on Fighting Organised Crime and Corruption of the Verkhovna Rada of Ukraine of November 19, 2003.
44 See, e.g.: Verkhovna Rada of Ukraine Resolution “On Progress of Fighting Organised Crime in 2004-2005” No. 3070-IV of November 3, 2005; President of
Ukraine Decree “On Priority Measures at Legalisation of Economy and Countering Corruption” No. 1615 of November 18, 2005 and “On Decision of the National
Security and Defence Council of Ukraine of November 25, 2005 “On Establishment of Interdepartmental Commission of the National Security and Defence
Council of Ukraine for All-Round Solution of Problems in the Field of Fighting Corruption” No. 1865 of December 28, 2005.
45 See: President of Ukraine Decree “On Decision of the National Security and Defence Council of Ukraine of September 20, 2006 “On Implementation of
Decision of the National Security and Defence Council of Ukraine of February 8, 2006 “On social situation in the AR of Crimea”” No. 822 of October 10, 2006.
46 See, e.g.: Resolution of the Council of Ministers of the AR of Crimea “On Organisation of Implementation of the Cabinet of Ministers of Ukraine Directive
No. 657р of August 15, 2007” No. 837 of December 13, 2007, http://www.crimea-portal.gov.ua
47 N.Ilyichev: “Police has never had easy times”. – Public Relations Department of the Main Administration of the Ministry of Internal Affairs of Ukraine in the
AR of Crimea, http://www.crm-mia.gov.ua/
REPUBLICAN REPORT OF PROGRESS OF FIGHTING
CORRUPTION IN 2008
“In 2008, compared to the previous year, the number of
detected corrupt acts among state officials and representatives of
local self-government bodies increased by 11.2% (139 cases in
2008 against 125 – in 2007). 43 out of 139 offences were closed
in accordance with the procedure established by the law”.
The most common offences included: provision of unlawful
preferences to individuals or legal entities at preparation and
passage of relevant decisions; denial of information extension of
which is envisaged by legal acts to individuals or legal entities;
intentional delay of getting information; presentation of untrue or
incomplete information; violation of the procedure of declaration;
unlawful extension of bonuses and preferences to subordinates
or unlawful obtaining of bonuses, awards upon the results of
work; issue, signing of fake reports, forms, certificates; issue of
various permits to individuals and legal entities without sufficient
grounds; unlawful interference in activity of other state bodies
or officials with the purpose of prevention of discharge of their
powers.
Dynamics of economic crime
in Crimea in 2005-2008
2005 2006 2007 2008
Detected crimes, 2,067 1,562 1,550 1,439
in that, grave and especially
grave
1,011 657 588 565
Appropriation, embezzlement
or capture of property through
abuse of official powers,
418 267 282 332
in that, on an especially large
scale
29 29 16 19
Legalisation (laundering)
of proceeds of crime
13 10 13 14
Violation of legislation on
the budget system of Ukraine
5 2 3 1
Official crimes, 982 745 648 571
in that, abuse of power or office 288 185 124 79
bribery 145 154 112 98
Source: “State and structure of crime in Ukraine” in the period of 2005-2008 (by year). –
Official web site of the Ministry of Internal Affairs of Ukraine, http://www.mvs.gov.ua
* Source: Information on the work of executive bodies of the AR of Crimea,
local self-government bodies and district state administrations in the AR of
Crimea in 2008 in pursuance of the Law of Ukraine “On Fighting Corruption”,
assignments of the President of Ukraine and the Cabinet of Ministers of
Ukraine on that issue in 2008”, http://www.crimea-portal.gov.ua
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 37
FACTORS INFLUENCING THE SITUATION IN CRIMEA
Proceeding from public assessments and media
reports of facts of corruption in Crimea, it may be said
that fighting corruption left the bulk of corrupt officials
in the AR of Crimea intact. Isolated attempts of lawenforcement
bodies to reach corruption on the upper levels
of Crimean authorities were vain48. It is proved by the
answers of Crimeans to the question “In the interests of
who is the policy of central and local authorities being led
in Crimea?”. The relative majority of the polled, in view
of the cource of central and local authorities’policy, put in
the first place (with substantial prevalence) “interests of
oligarchic clans” – 38.8% and 46.5%, accordingly.
The most publicised such case was the attempt to
bring to responsibility for corrupt acts Chairman of the
Verkhovna Rada of the autonomy A.Hrytsenko, that turned
a public scandal49. Apart from the failure of that attempt,
some leaders of the Verkhovna Rada of the AR of Crimea
even proposed “steps in response” against Crimean lawenforcement
bodies50. This is not a unique case when
actions of law-enforcement bodies persecuting for corrupt
acts officials, even detained during commitment of a crime,
met counteraction of local Crimean authorities51.
Such facts prove that fighting corruption has not
become a priority for the central and local authorities
alike. Meanwhile, the Crimean residents believe that
elimination of corruption should be a priority task among
the steps aimed at enhancement of the effectiveness of
the central and republican authorities – respectively, 22%
and 50.2%. The rating of other measures at enhancement
of the effectiveness of the Crimean authorities looks as
follows: development and implementation of the Crimea’s
development strategy (42.4%), replacement of executives
with more professional (40.9%) and accretion of powers
of the autonomy authorities (23.7%)52.
Specific Crimean reasons of corruption include: ties
between Crimean leaders and representatives of supreme
Ukrainian institutes of power, leading political forces,
enabling attainment of economic and property interests
of the latter in Crimea53; disinterest of representatives of
Crimean authorities and local self-government bodies in
liquidation of corrupt schemes in the most economically
attractive sectors; corruption in the law-enforcement
bodies and judicial system in Crimea54.
Dependent on the nationality of corrupt officials
and interested parties (that gained or suffered), cases of
corruption may become a catalyst or even grow into interethnic
tension55.
Therefore, fighting corruption in Crimea so far has
produced no notable changes in the situation for the
better. Corruption was and still is one of the serious
factors of conflicts on the peninsula, since it complicates
solution of Crimean problems in general, especially
where interests of representatives of different sociocultural
groups of the autonomy come to collision.
Corrupt acts reduce the amount of resources, being the
source of conflicts (first of all, land).
Absence of effective opposition to corruption
undermines respect for the authorities (both central
and Crimean), and therefore, their efforts at prevention
of ethnic conflicts or their settlement.
2.2. UNRESOLVED PROBLEMS OF INTEGRATION
OF CRIMEAN TATARS INTO UKRAINIAN SOCIETY
The growth of conflicts in social relations in the
AR of Crimea is caused by the passivity and sometimes
inconsistency of the central authorities at solution of
political-legal, socio-economic and ethno-national
problems, their attempts to escape interference in conflict
situations, in the result of which disputable issues were
solved not through the concerned institutes of power but
by means of direct demonstration of the will and forcible
actions of separate groups and entities.
All this causes accumulation of the critical mass
of problems and protest potential, and the authorities
cannot but interfere any more. And given the specificity
of political preferences and the structure of central and
Crimean authorities, unavailability of reliable assessments
of the situation and effective tools of influence on it, such
interference in many cases is inadequate, sometimes –
biased against some national groups, which causes further
escalation of tension.
Unsettled issues of legislative restoration of
rights of repatriates, political and legal status
of indigenous peoples of Ukraine, their national
self-government bodies
Settlement of those issues is critical for the “temperature”
of social relations in Crimea, since the absolute majority
of repatriates are Crimean Tatars claiming the status
of an indigenous people of Ukraine, as provided by the
Ukrainian Constitution.
The political leadership of Crimean Tatars spoke
of the need to solve those issues actually right after
the beginning of the mass return of Crimean Tatars to
their homeland. In particular, the Bill “On Measures
at Practical Restoration of Rights of the Crimean Tatar
People and National Minorities Subjected to Deportation
and Genocide in the Years of World War II” prepared
48 See, e.g.: Samar V. Babylon XXI. – “Dzerkalo Tyzhnya”, September 27, 2008.
49 See, e.g.: Speaker Beat Up Witness, When Familiarised with Possible Corruption Case. – Ukrayinska Pravda, September 18, 2008, http://www,pravda.com.ua;
Samar V. With Verbal Process. – “Dzerkalo Tyzhnya”, August 9, 2008.
50 Vice Speaker of Parliament of the AR of Crimea proposes suspension of funding of Crimean militia. – UNIAN, October 2, 2008.
51 See, e.g.: Verkhovna Rada of the AR of Crimea requests General Prosecutor of Ukraine to investigate validity of participation of officers of the Ministry of
Internal Affairs in detention of a village council chairman in the autonomy. – UNIAN, October 2, 2008.
52 By contrast to rank-and-file citizens, experts prioritised other measures at enhancement of the effectiveness of the Crimean authorities: development and
implementation of the Crimea’s development strategy – 66.3%, elimination of corruption – 53.8%, replacement of personnel with more professional – 47.5%,
change of the party contingent and lines of policy – 28.8%, expansion of powers – 17.5%.
53 E.g., according to former Permanent Representative of the President of Ukraine in the AR of Crimea H.Moskal, “stand of some executives of the General
Prosecutor’s Office enabled release from custody of a member of the Supreme Council of the AR of Crimea O.Melnyk detained by a special group of the
Ministry of Internal Affairs and the General Prosecutor’s Office investigating notorious crimes of past years, considered the leader of one of former Crimean
organised criminal groups Seilem”. See: Karavan V. “Moskal. Not a Ceremonial General”. – “Fokus”, November 6, 2006, http://focus.in.ua
54 See, e.g.: Deputy Minister of Internal Affairs Yevdokymov calls upon Crimean police to clean their ranks of turncoats. – UNIAN, September 7, 2006.
55 See, e.g.: Samar V. Minefield guide. – “Dzerkalo Tyzhnya”, August 30, 2008.
38 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
by Majlis in 1992 contained a set of interrelated key
provisions, providing for the following56:
• Ukraine’s condemnation of deportation and
assumption of responsibility for practical restoration
of rights of repatriates, while respecting rights and
interests of all citizens of Ukraine, irrespective of
their nationality;
• creation on the central and republican levels of
mechanisms to control the observance of the Law,
involving Majlis of the Crimean Tatar people;
recognition of Majlis as a party representing the
Crimean Tatar people in solution of all issues
dealing with the exercise of its rights;
• development of a State Programme of return and
restoration of rights of the Crimean Tatar people
with the purpose of effective and planned use of
resources needed for practical restoration of rights
of persons subjected to repressions;
• recognition of the right of the Crimean Tatar people
to self-identification and restoration of its statehood
on the ground that it was formed on the territory
of the Crimean peninsula (i.e., recognition of its
status as an indigenous people, although the term is
not used in the document);
• specification of the forms, scope and mechanisms
of reimbursement of material and moral damage
inflicted to repatriates by deportation.
Over the period of independence, bills on those issues
were submitted to Ukraine’s Parliament (mainly by MPs
representing the Crimean Tatar people), but they remain
unsettled even now (see Insert “Legislative initiatives
aimed at settlement of political and legal problems of the
Crimean Tatar people”, p.40).
Those problems caused complication of the
situation in the AR of Crimea, first of all, intensification
and radicalisation of the protest activity of Crimean
Tatars57. By the beginning of 2000s, the situation was
only somewhat mitigated, but the conflict potential in the
Crimea remained high58.
In April, 2000, the Verkhovna Rada of Ukraine
hosted parliamentary hearings “Problems of legislative
regulation and implementation of the state policy of
guarantee of rights of Crimean Tatar people and national
minorities that were deported and voluntarily return to
Ukraine”.
The Recommendations of the hearings, first, noted
that the Ukrainian state “should establish a set of political
and legal conditions guaranteeing preservation and
development of the Crimean Tatar ethnos in Ukraine and
its equal participation in political, economic and cultural
life of the state”, given that “the historic Motherland of
Crimean Tatars where they were formed as an ethnos lies
on the territory and under the jurisdiction of the Ukrainian
state”59. Second, the document contains two provisions
fundamental for settlement of political and legal problems
of Crimean Tatars:
• the Verkhovna Rada of Ukraine was advised to
“take measures for development and passage of
laws dealing with implementation of provisions
of Article 11, 92 (Item 3) of the Constitution of
Ukraine (concerning indigenous peoples and state
guarantees of their rights – Ed.), and guarantee of
the rights of the Crimean Tatar people and national
minorities that were deported and voluntarily return
to Ukraine”;
• the President of Ukraine was advised to “give
assignment of signing of the International Labour
Organisation Convention No. 169 concerning
Indigenous and Tribal Peoples in Independent
Countries” (prior to the adoption of the relevant
UN Declaration, that document made the core of
the international legal framework on the status and
rights of indigenous peoples. – Ed.).
So, Ukraine’s Parliament yet in 2000 admitted
legal grounds for satisfaction of the main political
and legal requirements of Crimean Tatars. However,
recommendations of the Verkhovna Rada are not
implemented even now.
So, compared to early 2000s, the situation with solution
of the key political and legal problems of Crimean Tatars
actually did not change60. It is shaped by the stand of
the parties to settlement of political and legal problems
of Crimean Tatars, namely: political leadership of the
Crimean Tatar people, on one hand, and the Ukrainian
authorities – on the other.
Specific of the stand of the political leadership
of Crimean Tatars are clear strategic goals, push and
insistence at their achievement. The main means of their
attainment include legislative initiatives pushed through
representation in the bodies of power, presence in the
public political space (statements, declarations, forums)
and ties with international organisations61.
56 Centre of Information and Documentation of Crimean Tatars. http://www.cidct.org.ua/ru/publications
57 See: The Crimea on the political map of Ukraine…, pp. 8-9.
58 Ibid., pp.12-13.
59 Verkhovna Rada of Ukraine Resolution “On Recommendations of Parliamentary Hearings “Problems of Legislative Regulation and Implementation of the
State Policy of Guarantee of rights of the Crimean Tatar People and National Minorities that Were Deported and Voluntarily Return to Ukraine”” No. 1660 of
April 20, 2000.
60 See: The Crimea on the political map of Ukraine…, pp.17-20.
61 See, e.g.: Appeal of the Crimean Tatars people “Defend us from discrimination – help restore our rights”. – OSCE Conference on Combating Discrimination and
Promoting Mutual Respect and Understanding, Romania, Bucharest, June 7-8, 2007. http://www.osce.org/documents/cio/2007/06/24962_ru.pdf. The Appeal
mentions the key problems of Crimean Tatars: extinction of rights at privatisation; absence of compensation of lost property; discrimination at employment;
discrimination of the Crimean Tatar language; eradication of the cultural heritage; distortion of historic place names; evasion of legislative establishment of the
status of the Crimean Tatar people in Ukraine and restoration of its rights.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 39
FACTORS INFLUENCING THE SITUATION IN CRIMEA
The political leadership of Crimean Tatars views the
status of an indigenous people as a key precondition for
preservation of the Crimean Tatar people and all-round
exercise of its rights62. The rights of Crimean Tatars are
to be exercised through national self-government bodies
recognised by the state – Kurultay and Majlis – that should
have effective channels of interaction with the Crimean
Tatar community, Ukrainian and Crimean authorities, the
Diaspora and international organisations63.
The stand of the authorities in those issues may
generally be termed as rather passive. In the legislative
activity, it takes the form of “reaction” to legislative
initiatives of Crimean Tatars64, showing no practical
interest and making no sufficient practical efforts for
solution of the existing problems65. In particular, Crimean
Tatars argue that the “Ukrainian state over the years of
independence has not passed a single legislative acts aimed
at restoration of political, economic, social and cultural
rights of the Crimean Tatar people, which is the reason
of preservation of actual inequality and discrimination of
Crimean Tatars”66.
Those statements are reasonable insofar as they deal
with the main political and legal requirements of Crimean
Tatars, since there are no legislative acts aimed at restoration
of rights of repatriates and on the status of indigenous
peoples of Ukraine. Such stand of the authorities may
stem from: the absence of an integral idea of the ways
to problem solution; fear of their possible consequences
(both socio-political and socio-economic); assessment of
available resources as insufficient to support legislatively
provided measures at satisfaction of the requirements of
Crimean Tatars. Of course, the political factor may also
play a role.
Passivity of the central authorities leads to conservation
of the situation and resultant growth of tension in society.
Some signs of breaking the ice appeared at a meeting of
Ukraine’s Prime Minister Yu.Tymoshenko with Majlis
Leader M.Dzhemilev on October 31, 2008. During the
meeting, the parties considered and came to an agreement
on issues of restoration of social and political rights of
“Crimean Tatars as an integral indigenous people of
Crimea”, legal provision of those rights, return to Crimea
of 100 thousand Crimean Tatars staying in places of
deportation”, etc.67
But non-performance of the promises given by the
Government made Crimean Tatars picket the Cabinet of
Ministers in May 2009, which with time evolved into a
political protest action68.
Problems of Crimean Tatars and approaches to
their solution are closely interrelated and require
systemic, considerate and well-reasoned decisions.
The most controversial political issue is the legal
status of indigenous peoples of Ukraine and their
national self-government bodies69, especially in
view of perception of their solution by the Slavic
community of Crimea.
Meanwhile, the need of solution of the problem of
restoration of rights of deported peoples as directly
dealing with basic human rights is beyond doubt,
and opposition to its solution is mainly caused by
different forces fighting for natural resources in
Crimea. The central and republican authorities
should primarily concentrate on the removal of that
impediment70.
62 “If we want to preserve Crimean Tatars as a people with a rich original culture, provide economic and political conditions for true equality, such decisions
(passage of the law on the status of the Crimean Tatar people as an indigenous people of Ukraine – Ed.) are inevitable. And we are proposed to confine ourselves
with the status of a national minority, which means assimilation and ethnic death. Of course, we will never agree to that”. See: Bekirov N. Crimean Tatar problem
in connection with legislative support for rights of nationalities in Ukraine. – Materials of the conference “Crimean Tatars and Ukrainian society: problems of
political and social integration”. – Kyiv, November 26-27, 1998, p.28.
63 Procedures of Kurultay and Regulations of Majlis of the Crimean Tatar people. – Centre of Information and Documentation of Crimean Tatars, http://www.
cidct.org.ua
64 We leave beyond the scope of this study actions of the authorities dealing with amenities for repatriates and satisfaction of their socio-economic and sociocultural
needs.
65 For more detail on its possible reasons see subsection 2.1 of this section.
66 Resolution of the all-Crimean mourning meeting devoted to the memory of victims of the genocide of the Crimean Tatar people – deportation of May 18, 1944,
and decades of its forcible retention in the places of exile. See web site “Crimea and Crimean Tatars”, May 18, 2009, http://kirimtatar.com
67 On the road to the Crimean Tatar autonomy. – “Odna Rodina”, December 18, 2008, http://odnarodyna.ru/articles/6/415. Many political figures and experts
have doubts concerning the risk of the reached arrangements becoming a subsidiary coin at the following presidential elections. See: Power play: Presidential
Secretariat prepares mass riots of Crimean Tatars to overthrow Tymoshenko? – Relying on the materials of RIA “Novyi Region”, April 4, 2009, http://www.
otechestvo.org.ua/main/20094/0124
68 Crimean Tatars promise to cut Ukraine’s road to the European Union. – “Kyivska Pravda”, June 9, 2009, http://ua.pravda.com.ua/news/2009/6/9/96170
69 See, e.g.: Decision of Kurultay of the Crimean Tatar people “On Situation Concerning the Law of Ukraine “On Restoration of Rights of Persons Deported on
Ethnic Grounds”. – Centre of Information and Documentation of Crimean Tatars, http://www.cidct.org.ua
70 For more detail on the possible ways to solve political and legal problems of the Crimean Tatar people see the article by Yu.Yakymenko published in this
magazine.
40 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
Bills on the status of the Crimean Tatar people1
Since 1999, two bills “On the Status of the Crimean Tatar people”
have been submitted to the Verkhovna Rada of Ukraine.
The first one was drawn up by Ukraine’s MP R.Bezsmertnyi,
No. 4041 of September 10, 1999. Main features: definition of the legal
status of the Crimean Tatar people as an indigenous people of Ukraine;
creation of the State Register of the Crimean Tatar people (on a voluntary
basis); guaranteed representation of the Crimean Tatar people in the
Verkhovna Rada of Ukraine and the Verkhovna Rada of the Autonomous
Republic of Crimea (not less than 15% of total deputies); recognition
of Kurultay and Majlis as representative bodies of the Crimean Tatar
people and powers of Majlis in relations with Ukrainian state authorities;
commitments of the state with respect to the Crimean Tatar people.
The bill was not put on the agenda of the Verkhovna Rada of Ukraine
and, respectively, not considered by it.
The second was the bill prepared by people’sl deputies of the
Verkhovna Rada of Ukraine of the 4th convocation R.Bezsmertnyi,
M.Dzhemilyov, V.Taran and R.Chubarov No. 4098 of September 3, 2005.
The bill mainly repeated provisions of the previous one.
Meanwhile, it also listed grounds for recognition of the Crimean
Tatar people as indigenous (Article 2), specifically:
• its historic Motherland – the territory where it was formed as
an ethnos – entirely lying within the borders of the Ukrainian
state;
• preservation of its ethnic identity, different from the identity of
the Ukrainian nation (title ethnos) and a national minority of
Ukraine, and aspiration for conservation and development of
such identity;
• unique language and culture;
• conservation and development of its own traditional ethnic
institutes;
• absence of an ethnically identical national state or Motherland
beyond Ukraine;
• self-perception of an indigenous people of Ukraine.
The bill also introduced the notion of local Majlises, representing
interests of Crimean Tatars on the level of administrative-territorial
units.
Article 3 laid down the key principles of the state policy with respect
to the Crimean Tatar people: “establishment of a new type of relations
between the state and indigenous people, resting on recognition of
its ethnic, cultural, language and religious uniqueness”; “guarantee
of effective involvement of the indigenous people in the process of
decision-making of the state authorities and local self-government
bodies pertaining to its life activity”.
Article 9 named representative bodies of the Crimean Tatar people:
Kurultay – the national congress of the Crimean Tatar people; Majlis of
the Crimean Tatar people elected by the Kurultay delegates.
The latter bill was criticised by the Main Scientific Expert
Department of the Verkhovna Rada: “…passage of such Law can make
an impression of legal inequality between the Crimean Tatar people, that
has a separate Law “of its own”, and other peoples of Ukraine that have
no such laws… In case of passage of this Law it is not ruled out that
representatives of other national minorities will also demand passage of
similar laws concerning their peoples”2.
In June 2005, in the new political situation, the bill “On the Status
of the Crimean Tatar People” was termed by the newly elected President
V.Yushchenko as urgent, but Parliament did not consider it. In the
Verkhovna Rada of the present convocation, relevant bills were not even
registered.
Bills on restoration of rights of persons
deported on ethnic grounds
In 2004, two Bills “On Restoration of Rights of Persons Deported
on Ethnic Grounds” were submitted for consideration to the Verkhovna
Rada of Ukraine, No. 4526 and No. 4526-1, respectively, by the
Cabinet of Ministers of Ukraine and national deputies M.Dzhemilev and
R.Chubarov. The governmental bill was taken as the basis and finalised
with account of some provisions of the second bill, in particular,
concerning categorisation of repatriates on the basis of their belonging
to the Crimean Tatar people, and a few articles added, specifying the
concrete forms of restoration of rights of repatriates (e.g., compensation,
rehabilitation, satisfaction) and concrete obligations of the state in that
respect (the bill of M.Dzhemilyov and R.Chubarov mentioned among
such forms restitution – an issue concealing a serious conflict potential;
the term was removed from the agreed bill, although the essence of the
relevant form of restoration of rights was preserved in the article dealing
with compensation).
The law was passed by the Verkhovna Rada and sent to President
L.Kuchma for signing. The President returned it with reservations
and proposals. One of the most serious reservations was that it
“grants a special status to deportees and specifies the procedure of
compensation of their associated losses, proceeding from affiliation of
the persons with the Crimean Tatar people, not from facts of violation
of human rights committed with respect to such persons. This directly
contradicts provisions of the Constitution of Ukraine and may question
the constitutional definition of the Ukrainian people as the community
of Ukrainian citizens of all nationalities”. With the President’s proposal,
the Law might be adopted. However, that did not happen because of
political developments of late 2004 - early 2005.
In 2005, Ukraine’s MPs M.Syatynya and S.Ratushnyak submitted
the Bill “On Restoration of Rights of Ownership of Individuals Forcibly
Taken by Bodies of the USSR” No. 8332 of October 21, 2005. It received
a negative conclusion of the Cabinet of Ministers and was not reviewed
by the Verkhovna Rada of Ukraine.
In 2008, the Cabinet of Ministers of Ukraine submitted to the
Verkhovna Rada for consideration the Bill “On Restoration of Rights of
Persons Deported on Ethnic Grounds” No. 3142 of September 11, 2008.
It defined the category of deported persons as those “who were citizens
of the former USSR and in the period of 1941-1944 were deported on
ethnic grounds from places of permanent residence within the present
territory of Ukraine, and settled in another place prescribed by the
authorities of the former USSR (special settlement)”. Therefore, ethnic
grounds were not used to define deported persons.
By and large, the bill was rather concise: by contrast to the one
passed in 2004 and vetoed down by L.Kuchma, it contained only the
general lines of the state policy of restoration of deported persons’
rights and specified powers of the authorities and self-government
bodies at its implementation without mentioning concrete measures.
That is, from the viewpoint of interests of the Crimean Tatar people, it
may be seen as a step back, compared to the previous one.
Meeting Ukraine’s Prime Minister Yu.Tymoshenko on October 31,
2008, the Majlis leader M.Dzhemilev suggested withdrawal of that bill
from the Verkhovna Rada, to be replaced with a new version drawn up
on the basis of the bill passed by the Verkhovna Rada in 2004. According
to media reports, “the participants of the meeting agreed to work out
new approaches to this issue in the near future”3.
On May 13, 2009, the draft Law of Ukraine “On restoration of rights of
persons deported on ethnic grounds” No. 3142 submitted by the Cabinet
of Ministers of Ukraine was considered by the Committee on European
Integration of the Verkhovna Rada of Ukraine. The bill was termed as not
contrary to the European law, and recommended to be submitted to the
Verkhovna Rada of Ukraine after finalisation, for basic passage.
LEGISLATIVE INITIATIVES AIMED AT SETTLEMENT OF POLITICAL AND LEGAL PROBLEMS OF THE CRIMEAN TATAR PEOPLE
1 For the texts of the bills, memos and expert conclusions see: Official web site of the Verkhovna Rada of Ukraine, http://www.rada.gov.ua
2 Some scholars see the variety of interpretations of the mentioned categories and the vagueness of conceptual principles of political nation and civil society
building in Ukraine as a deficiency of Ukraine’s Constitution itself, and note the controversy of introduction of the term of “indigenous nations” thereto.
See, e.g.: Kotyhorenko V. Crimean Tatar repatriates: problem of social adaptation. – Kyiv, 2005, p.189; Nahorna L. Regional identity: Ukrainian context. –
Kyiv, I.F. Kuras Institute of Political and Ethnic Studies of the National Academy of Sciences of Ukraine, 2008.
3 “Tymoshenko Interested in Meetings…” – “Avdet”, November 3, 2008.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 41
Hindrance of provision of amenities for
repatriates71
Starting from 1991, they in the AR of Crimea built
for repatriates at the expense of state and republican
budget funds 444.5 thousand m² of housing (against
the required 700-800 thousand m²), seven schools
for 2,043 pupils, laid 873.6 km of water supply lines,
1,181.5 km of power lines, 44 km of roads, 340 km
of gas supply lines, commissioned other social and
cultural facilities72.
The effectiveness of measures aimed at provision of
amenities for repatriates, especially Crimean Tatars73,
is insufficient. According to the Accounting Chamber
of Ukraine, at provision of amenities for repatriates in
2007-2008, planned terms of commissioning of housing
and utility facilities, water, gas and electricity networks
were disrupted. Some social facilities and residential
buildings remain non-operational, so that repatriates
cannot get proper services74.
The unemployment rate remains high – according to
the Razumkov Centre polls, 12% of Crimean Tatars are
unemployed (among Slavs – 3.7%; “Crimean Ukrainians” –
4.7%; Crimean average – 5%). 60% of Crimean Tatar
families do not have enough money even for food. For
many of them, pension and retail trade are the main sources
of subsistence.
One should admit that similar problems are experienced
by the rest of the Crimean population. However, Crimean
Tatars are seen as a special problem group because of the
controversy of issues of their settlement, provision with
land and housing. Hindrance of solution of those issues
causes social tension in the AR of Crimea, gaining traits of
a pre-conflict situation.
Settlement. Acuteness of the problems of settlement of
Crimean Tatars is caused by the legislative uncertainty of
the rights of deportees, passivity of the central authorities
and reluctance of some bodies of the Crimea to solve
issues of Crimean Tatars to the detriment of the rights of
71 Official data of provision of resources for repatriates in Crimea are fragmentary, varied, their trustworthiness arouses doubts, which complicates or even
bars their summarisation. Absence of a cadastre registration system in land management and land relations makes any statistics in that sector unreliable. That
is why the study mainly relied on estimates of trends (not absolute figures) of separate indices, and prudent use of official data and their comparison with data
from independent sources.
72 Report by Director of Department for Affairs of Former Deportees on Ethnic Grounds “Implementation of the Programme of Settlement of and Amenities for
Deported Crimean Tatars and Persons of Other Nationalities Who Returned for Residence to Ukraine, their Adaptation and Integration into Ukrainian Society”.
May 8, 2009, http://www.scnm.gov.ua/article/132148?annId=132149. On the need for housing, see: Formation of ethnic tolerance in Crimea through joint
activity of national cultural societies. Local Government and Public Service Reform Initiative, http://lgi.osi.hu/ethnic/csdb/doc/rkoroste.doc. The possibility to
buy housing for own funds was extremely limited: as of June, 2002, the value of 1-2-bedroom apartments in Central Asian cities where repatriates used to live
ranged from $650 to $1,500, in the Crimean cities – from $7,000 to $12,000 (on the South-Eastern coast – 15-20 times more). The average value of movement
of a family of four exceeded $1,000. See: Representative of Majlis of the Crimean Tatar people in Central Asia. Reference “On issues and problems faced by
deported Crimean Tatars returning from the Republic of Uzbekistan to Ukraine” of July 22, 2002. – “Crimea and Crimean Tatars”, http://www.kirimtatar.com/
Problems/spravka_2207
73 According to the Ministry of Internal Affairs of Ukraine, as of January, 2009, there were 253.95 thousand deportees in the AR of Crimea, including
249.7 thousand Crimean Tatars and 4.2 thousand persons of other nationalities.
74 Programme of amenities for repatriates in Crimea is not implemented. – Accounting Chamber Press Service, February 11, 2009, http://www.ac-rada.gov.
ua/achamber/control/uk/publish/article/main?art_id=1372474&cat_id=411
75 Chubarov calls upon the central authorities to pay attention to the problem of illegal use of land resources in Crimea. – UNIAN, November 12, 2007.
76 Khayali R. Crimean Tatar people in the population of the Crimean ASSR (1921-1939). – http://www.nbuv.gov.ua/Articles/Kultnar/knp66/knp66_74-80.pdf.
See also: Kabachyi R. From the other world. Non-violent return to Crimea became the cause of several generations of Crimean Tatars. – “Ukrayinskyi Tyzhden”,
February 27, 2000, pp.42-43.
the Russian-speaking population on whose support they
rely, and the main thing – to the detriment of their own
“business projects” of distribution of land plots. Crimean
Tatars rest their requirements on the fact that they “not
simply return to Crimea, they return to their roots. But
the Crimean authorities do not take into account the
national interests of Tatars and settle them on land at their
discretion”75.
There are 300 localities and areas of compact
residence of repatriates in Crimea now. Most of
all Crimean Tatars (15 thousand people and more)
live in Simferopol, Bahchysarayskiy, Bilogirskiy,
Dzhankoyskiy, Krasnogvardiyskiy, Sakskiy rayons
(districts) (66% of all repatriates). Crimean Tatar city
population is mainly concentrated (2.5 thousand persons
and more) in the cities of Simferopol, Sudak, Feodosiya,
Alushta, Dzhankoy, Kerch, Yalta (some 20%). In no
district of Crimea, they are in a majority, making from
33.7% in Bilogirskiy district to 9.2% – in Dzhankoyskiy
district.
The problem of settlement of Crimean Tatars has two
dimensions: the “problem of the South-Eastern coast” and
the problem of settlement in rural areas – in their turn,
closely related with provision of Crimean Tatars with land
and housing.
“Problem of the South-Eastern coast”. According
to the 1939 census, 218.9 thousand Crimean Tatars
lived in the Crimean ASSR, 75% of them – in villages,
25% – in cities. All in all, Crimean Tatars made 10.2%
of the total city and 29% of the village population of the
republic. They mainly lived on the South-Eastern coast of
Crimea. In rural areas, Crimean Tatars were concentrated
in Sudakskiy (89.2% of the district population), Yaltinskiy
(81.4%), Bahchysarayskiy (79%), Sevastopolskiy
(63.7%) and Karasubazarskiy (46.8%) districts. Among
the city population, Crimean Tatars were in a majority only
in Bakhchysaray (71%) and Gurzuf (54.7%). In other cities
of the South-Eastern coast their share in the population
made 12-43%76.
FACTORS INFLUENCING THE SITUATION IN CRIMEA
42 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
Sources: population – Main Department of the State Statistics
Committee in the AR of Crimea; part of Crimean Tatars –
All-Ukrainian census; part of Crimean Tatars in local bodies of
power – results of local elections-2006; provision with land – live
data of state district councils; provision with housing – data of the
executive committees of town and district councils; Tyshchenko Yu.,
Khalilov R., Kapustin M. Socio-political processes in the AR of
Crimea: key trends. – Kyiv, UCIPR, 2008, http://www.ucipr.kiev.ua
Population of Crimea – 1.97 million persons
Number of repatriates – 253.95 thousand persons,
incl.: 249.7 thousand of Crimean Tatars
4.2 thousand persons of other nationalities
□□
□
ii ' I I dz I I
1 1
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 43
Volumes of TV and radio broadcasting by
state companies in Crimea *
TV BROADCASTING, incl. RADIO BROADCASTING, incl.
Daily
average,
hours
% in Ukrainian % in Russian Daily
average,
hours
% in Ukrainian % in Russian
1999 9.5 11.7 76.3 5.5 5.5 80.0
2001 7.3 35.6 52.1 2.7 18.5 66.7
2003 7.0 42.9 47.1 2.4 22.1 59.6
2005 8.45 37.9 53.8 2.26 26.6 53.5
2007 14.0 52.9 40.7 3.00 26.7 50.0
* Source: Main Department of the State Statistics Committee in the AR of Crimea.
FACTORS INFLUENCING THE SITUATION IN CRIMEA
---------
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44 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
During repatriation, Crimean Tatars returning to
their homeland were 90% channelled to the Steppe
Crimea, three quarters – to rural areas77. Some 60% of
repatriates who before deportation and in exile lived in
cities had to settle down in villages and city suburbs78,
competing with the local population on the labour
market and in access to material benefits. Combined with
ineffectiveness and inadequate actions of the authorities,
this prompts escalation of social tension, growth of
the protest potential in the area, causes emergence of
local conflicts.
The number and intensity of such conflicts grew in
2006-2008. According to then Permanent Representative
of Ukraine’s President in the AR of Crimea H.Moskal,
from January till October, 2006, there were 9,636 mass
protests, which is three times more than in the same period
of 2005 (3,047). 8,846 actions (91.8%) were organised by
Crimean Tatars79.
Protests were radicalising; at times, they grew into open
clashes involving law-enforcement bodies (sometimes
inadequately, with arms and even armoured vehicles)80.
The most publicised were the incidents in Bakhchysaray
on July 8, 2006,81 and the conflict on the Ai-Petri plateau
in November, 2007.82
Problems of settlement in rural areas. According
to the 2001 census, the ratio of the village and city
population of Crimean Tatars in the AR of Crimea
was 2:1, of Russians – 1:2.4, Ukrainians – 1:1.4.
Now, some 72% of Crimean Tatars live in rural areas.
The Chairman of the Permanent Commission of the
Verkhovna Rada of the AR of Crimea for Inter-Ethnic
Relations R.Ilyasov said in his presentation at a
Congress of the Crimean Tatar people on May 20, 2009,
that three quarters of settlements housing Crimean
Tatars were provided with running water and some
98% – with electricity. The level of provision with gas
does not exceed 15%. Only 12% of settlements have
paved roads. Sewerage networks are actually absent.
Issues of transport communication and telephone lines
in settlements also remain unresolved83.
Amenities in villages are a common Crimean
problem. Monitoring of rural areas showed that
568 out of over 1,000 villages and urban-type settlements
accommodating nearly 38% of the autonomy’s population
as of May 26, 2008, had no educational establishments,
485 – post offices, 483 – pharmacies, 296 – healthcare
establishments, 188 – shops. 143 settlements were not
provided with public transport, 135 – with running
water84.
Rural areas report a high unemployment rate. The
most critical situation with employment is observed in
Kirovskiy, Krasnoperekopskiy, Sovetskiy, Chornomorskiy
districts85. 55% of Crimean Tatar families living in rural
areas do not have enough money even for foodstuffs
(in the “Slavic community” – 52%, Crimean average –
46.8%)86. Many of them have to live on a pension and
proceeds from retail trade, while pensioners make the
most numerous group of Crimean Tatars – almost 32%
(in the “Slavic community” – 23%, Crimean average –
26.1%). For Crimean Tatars, the situation is aggravated
by alleged discrimination at sharing of farming land
(see below).
Poor living conditions are another reason “driving”
villagers, including Crimean Tatars, from rural areas
in search of a better life to cities, mainly on the South-
Eastern coast. Along with the desire to return home and
attractiveness of the southern territories of the peninsula,
this exerts additional pressure on internal migration,
mainly directed from the Steppe Crimea to the South-
Eastern coast (see map, pp.42-43), densely populated
by representatives of the Slavic community, leading to
the growth of tension between the two socio-cultural
groups.
Provision of repatriates with non-farming land plots
is the acutest Crimean problem.
According to representatives of the republican
authorities and local self-government bodies, Crimean
Tatars are already provided with land better than
representatives of all other ethnic groups, but try to get
77 Data of the Republican Committee for Nationalities and Deported Persons under the Council of Ministers of Crimea, http://www.comnational.crimea-portal.
gov.ua
78 Integration of Crimean Tatars into Ukrainian society: problems and prospects. Analytical assessments of the National Institute of Strategic Studies. – Kyiv,
National Institute of Strategic Studies, 2005, http://www.niss.gov.ua/book/krim.htm
79 Permanent Representative of the President of Ukraine in Crimea H.Moskal suggests that the situation with squatters on the peninsula went out of control. –
Interfax Ukraine, October 24, 2006.
80 See: Ishyn A., Bednarskyi О., Shvets І. On the issue of manifestations of ethno-political contradictions in Crimea at the present stage. – Simferopol, Regional
branch of the National Institute of Strategic Studies, 2005, p.34.
81 S.Kunitsyn: “Bahchysaray events are the result of distortions and mistakes in inter-ethnic relations” – UNIAN, August 17, 2006.
82 Confrontation in Crimea: armed “Berkut” attacked Ai-Petri. – UNIAN, November 6, 2007.
83 Presentation by the Chairman of the Permanent Commission of the Verkhovna Rada of the AR of Crimea for Inter-Ethnic Relations R.Ilyasov at the Congress
of the Crimean Tatar people. – http://hatanm.org.ua/forum/index.php?action=printpage;topic=1827.0
84 Crimean Public Prosecutor’s Office drew up a map of socially unfit regions of the peninsula. – REGNUM news agency, http://www.regnum.ru/news/
1006356.html
85 On socio-economic standing of the AR of Crimea in 2008. – Main Statistic Department in the AR of Crimea, Simferopol, 2009.
86 The financial crisis substantially deteriorated the standing of Crimean Tatar families; the number of families who do not have enough money even for food
increased among Crimean Tatars 3.3 times, against 1.6 times in the Slavic community. Estimate made by comparison of the results of polls of October 18 –
November 9, 2008 and 2009.
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 45
more land, seizing attractive land plots for subsequent
resale87, intentionally provoking “land” conflicts88. In
particular, the stand of the Verkhovna Rada of the AR of
Crimea is that the land issue in Crimea should be solved
irrespective of the nationality of citizens89, and therefore,
Crimean Tatars have no special rights to land plots on the
peninsula.
On their part, representatives of Crimean Tatars
refute reports of the Crimean authorities saying that
Crimean Tatars are well provided with land90 (insert
“Provision of repatriates with non-farming land”).
They stress that squatting is prompted by the poor
87 Crimean Tatars sell out land “won over” from the authorities by squatting and mass riot. – “Novyi Region – Krym”. August 30, 2006.
88 Crimean Vice Premiere: There is no inter-ethnic enmity in the autonomy, but a desire of the Crimean Tatar leaders to create a conflict. – UNIAN, August 10, 2006.
89 See: Crimean Parliament believes that the situation with allotment of land on the peninsula did not approve and shows a worsening trend – Interfax-Ukraine,
December 20, 2006.
90 See: Crimean Tatars cut Yalta-Simferopol road, demanding solution of land issue. – UNIAN, March 17, 2007.
91 See: Majlis leader told who seized land in Crimea, and how much of it is held by deputies. – “Ukrayinska Pravda”, March 17, 2009, www.pravda.com.ua
92 See, e.g.: Kunitsyn told how Yanukovych and Azarov got land “for free”. – “Ukrayinska Pravda”, March 3, 2009, http://www.pravda.com.ua/news/2009/3/3/
90585. According to the Public Prosecutor’s Office of the AR of Crimea, inspections of observance of the land legislation in 2008 revealed new facts of abuses in land
management, unlawful withdrawal of territories protected by the law, use of fake documents and unreasoned court rulings for illegitimate seizure of land. Facts of
use of fake decisions of local authorities, applications and lists of citizens were revealed in Bahchysaray and Simferopol districts, the city of Simferopol. All in all,
in 2008, Public Prosecutor’s Offices in the AR of Crimea initiated 15 criminal cases for violations of the land legislation. Numerous violations were revealed in
the activity of officials of executive and local self-government bodies – unlawful decisions of allotment of territories of the preserve and forest stock and
withdrawal of land from state enterprises were cancelled.
93 74 cases of squatting land with the total area of 1.7 thousand hectares were recorded in Crimea. – Ministry of Environment. – Information agency
“RBK-Ukraine”, April 15, 2009, http://www.rbc.ua/rus/newsline/2009/04/15/531519
material standing and sense of injustice at division
of land for the benefit of persons connected with the
authorities91.
The scanty reserve of land intended for repatriates,
non-transparency of the process and low effectiveness
of control of the authorities greatly sharpen the problem,
contributing to the flight of land to the grey market using
corrupt schemes92 and provoking Crimean Tatars to
squat land. According to the Minister of Environmental
Protection of Ukraine, as of April, 2009, 74 cases of
squatting land with the total area of 1.7 thousand hectares
were recorded in Crimea93.
As of December, 2008, total of 400.8 thousand land plots with an
area of 48.4 thousand hectares were allotted for individual housing
construction. Repatriates received 82.4 thousand plots (20.5% of total)
with an area of 9.8 thousand hectares (12%).
For commercial activity, 8,294 land plots with an area of 1,650
hectares were allotted, in that, 1,055 plots (nearly 12%) with an area of
65 hectares (4%) – to repatriates.
By and large, land plots for individual housing construction and
commercial activity were granted to 58% of the repatriates who
expressed such need, or 21% of their total number.
The issue of allocation of land plots is especially acute in big cities
(Alushta, Yalta, Sudak, Simferopol, Feodosiya), where the number of
applications for land plots exceeds the number of local repatriates, in
particular, in the result of intra-regional migration.
To solve that, a stock of land should be created. In pursuance of the
President of Ukraine Decree1, the Council of Ministers of the AR of Crimea
drafted a programme of provision of repatriates with land for individual
construction2, providing for the allocation of land plots with the total
area of approximately 3,920.4 hectares. The task can partially be solved
at the expense of land controlled by some state and non-state structures
but not needed to them or used ineffectively.
For instance, according to the State Land Inspection in the AR of
Crimea, as of May 28, 2009, 1,127.4 hectares of the lands mentioned in
the draft programme were permanently used by various state and nonstate
structures, including:
• the Ministry of Agricultural Policy of Ukraine – 413.4 hectares;
• the Ukrainian Academy of Agricultural Sciences of the AR of
Crimea – 598 hectares;
• the Ministry of Defence of Ukraine – 62 hectares.
Another 41 hectares belong to forest lands, 13 hectares – to the
natural reserve stock3. The State Land Inspection in the AR of Crimea
reported that all those lands were used ineffectively or non-productively,
but their transfer was impossible without passage and coordination of
relevant decisions by the Cabinet of Ministers of Ukraine, the Ukrainian
Academy of Agricultural Sciences of the AR of Crimea, republican
authorities and local self-government bodies. However, those efforts
continuously meet artificial bureaucratic barriers.
The main roots of problems in provision of repatriates with land
plots include:
• uncompleted cadastre registration system, inventory of
land, delimitation of land staying in state and communal
ownership;
• uncompleted register of repatriates entitled to and claiming
social assistance, housing and land plots for individual housing
construction (as of January, 2009, the electronic database of the
consolidated register of repatriates and their families contained
data of only 115.9 thousand persons, or less than 40% of their
total number);
• absence of regulatory provided mechanisms of refusal of owners
or users from land plots offered for the programme of provision
of repatriates with land and their transfer to local self-government
bodies for subsequent allocation to repatriates;
• slow pace of development of city planning documentation
necessary for passage of decisions of land allocation for housing
construction, etc.
PROVISION OF REPATRIATES WITH NON-FARMING LAND
1 President of Ukraine Decree “On Additional Measures to Guarantee Observance of the Right to Land for Citizens Living on the Territory of the AR of Crimea”
No. 435 of May 14, 2008.
2 Draft Comprehensive Regional Programme of Allocation of Land Plots for Individual Construction to Citizens Deported on Ethnic Grounds and their
Descendants Who Returned for Permanent Residence in the AR of Crimea and Previously Obtained no Land Plots for Construction and Maintenance of
Residential Buildings, through 2010.
3 Information report by the State Land Inspection, http://www.dzi.com.ua/page25.html
FACTORS INFLUENCING THE SITUATION IN CRIMEA
46 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
In many instances, grey dealers (high-ranking
officials, influential politicians, Ukrainian and Russian
businessmen), using the hard material standing of
Crimean Tatar families, buy up land intended for
repatriates for a song94. Meanwhile, grey operations
with land more than once involved Crimean Tatars95,
which causes indignation in the Slavic community and
provides an argument for rejection of Crimean Tatar
claims to land.
was 16.2% made up by Crimean Tatars (158.3 thousand
persons, more than 75% of them – able-bodied adults).
At the time of land sharing, 199.3 thousand Crimean
collective farmers were entitled to land tenures, including
18.3 thousand Crimean Tatars. Certificates for land tenures
were issued to 191.8 thousand Crimeans, including 16.9
thousand Crimean Tatars, making only some 9% of all
certificate holders, or nearly 14% of the adult able-bodied
Crimean Tatar rural population100.
According to the Republican Committee for Land
Resources, by 2003, the situation somewhat improved:
77.2 thousand Crimean Tatars got land plots (or permits
for their allotment) with an area of 178.1 thousand
hectares101. As of December 2008, due to migration and
changes in the structure of land ownership102, the number
of land plot owners among Crimean Tatars decreased
(to 72.2 thousand persons), while the area of the plots
increased (to 186.1 thousand hectares)103. The average
area of a personal farmstead of repatriates is 1.71 hectares
(Crimean average – 1.96 hectares)104.
Low quality of land granted to Crimean Tatars105,
poor living conditions in villages, problems with water
supply for irrigation, practical absence of assistance from
the central and republican authorities greatly complicate
farming activity of Crimean Tatars and contribute to the
growth of social tension in and beyond places of their
compact settlement.
Provision with housing. In 1991-2008, nearly 6.1
thousand repatriate families got housing at the expense of
budget funds of all levels, 36.7 thousand families solved
their housing problem for their own expense106. Before 2002,
amenities for Crimean Tatars were provided under various
annual plans and programmes (of housing, utility services,
roads, etc). Starting from 2002, mid-term programmes of
settlement and amenities for deported Crimean Tatars and
persons of other nationalities that returned for residence
to Ukraine, their adaptation and integration into Ukrainian
society are implemented in Crimea107. Despite the annual
growth of absolute funding (except last year), there is
94 Ryabov М. Majlis told how much land Yanukovych has in Crimea and how Russia buys up the peninsula. – “Novyi Region”, March 17, 2009, http://newregion-
2.livejournal.com/39748338.html
95 M.Dzhemilev: “Being aware that the authorities will not give them the land anyway but they can earn at least something, some Crimean Tatars agreed to
those disgraceful deals. However, given their hard social standing, I do not want to comment their actions. They got for such mediation almost nothing –
not more than a thousand dollars for 400-600 square metres”. See: Russians buy up Crimea, covering themselves with Tatars. – Rustbelt-Ukraine, March 17,
2009, http://www.rosbalt.ru/2009/03/17/626354
96 M.Dzhemilev: “According to the Crimean Republican Committee for Land Resources, as of April 1, 2007, land seizures by Crimean Tatars accounted for 37%
of all cases. Other seized territory falls on the Russian-speaking population”. See: Majlis leader told who seized land in Crimea, and how much of it is held by
deputies. – “Ukrayinska Pravda”, March 17, 2009, http://www.pravda.com.ua/news/2009/3/17/91470.
97 “Many cases of unlawful occupation of land were covert, for bribes to functionaries or by an order from above and with silent consent of those who are supposed to protest
aloud and write applications to public prosecutor’s offices”. See: Kasyanenko M. Sources of “carve-up”. – “Den”, January 24, 2008, http://www.day.kiev.ua/195154
98 Those data differ from the data of the 1939 census cited above.
99 Abduraimov V. Land and freedom? – “Ostrov Krym” almanac, No.1, 2002, http://www.ok.archipelag.ru/part1/zemlya
100 Economic and legal problems of social adaptation and integration of Crimean repatriates. – Centre of Information and Documentation of Crimean Tatars,
http://www.cidct.org.ua/uk/publications/Etnopolitika/18
101 Republican Committee for Nationalities and Deported Persons. Information on provision of previously deported persons with land plots in the AR of Crimea
as of March 21, 2003. – http://www.comnational.crimea-portal.gov.ua/uk/index.php?v=1&tek=5&par=0&l=&art=48
102 On problems of the land market, see: State land policy in Ukraine. – Working materials of Razumkov Centre for the Round-table “State and strategy of today’s
land policy in Ukraine”, May 21, 2009, pp.4-13.
103 Provision of previously deported population of the AR of Crimea with land plots. – State Committee of Ukraine for Land Resources. – http://dkzr.gov.ua
104 Data of the Republican Committee for Land Resources and State Committee for Land Resources of late 2008 - early 2009.
105 “Now, according to our surveys, Crimean Tatars in rural areas have per capita on the average 2.5 times less land than non-Tatars, let alone the quality of
fallows and remoteness of land plots from places of residence”. See: M.Dzhemilev: “We should have been thanked for having done everything we could to
neutralise separatism in Crimea”. – “Dzerkalo Tyzhnya”, May 21, 2005, http://www.zn.ua/1000/1030/50110
106 Report of the Republican Committee for Nationalities and Deported Persons on implementation of the Programme … in 2008, http://www.comnational.crimeaportal.
gov.ua/rus/index.php?v=1&tek=5&par=0&l=&art=180. According to the Representation of the President of Ukraine in the AR of Crimea, some Crimean
Tatars solved their housing problem with foreign assistance – from Turkey (1,000 families) and UAE (20 families).
107 Cabinet of Ministers’ Resolution “On Approval of the Programme of Settlement of and Amenities for Deported Crimean Tatars and Persons of Other
Nationalities Who Returned for Residence to Ukraine, their Adaptation and Integration into Ukrainian Society through 2005” No. 618 of May 16, 2002. The
subsequent Programme through 2010 was approved by the Cabinet of Ministers of Ukraine Resolution No. 637 of May 11, 2006. Now, two programmes are
implemented in the AR of Crimea: governmental, funded from the state budget, and approved by a Resolution of the Verkhovna Rada of the AR of Crimea
No. 102-5 of June 21, 2006 – from the republican.
R: “Indeed, there is no problem as such, until someone is
trying to earn with the “hymn of national minorities”. It appears
that if they seize land, everything gets by, nobody is punished.
If Ukrainians or Russians did that, I guess that tomorrow, a militia
regiment would raze them to ground…”
U: “…Crimean Tatars sooner than we push decisions for their
benefit … No Ukrainian or Russian will go, write an application
and get a land plot, even in bad need, as fast as a Tatar will do…
I know no Ukrainian or Russian who affords behaving like that,
and who is allowed to behave like that”.
Т: “… If we file documents to get a land plot as envisaged by
the law, they do not even put me on the queue, as a Crimean Tatar,
I don’t know on what grounds. Or they accept documents, and
then say: “you are refused”, referring to lots of unclear clauses”.
EXTRACTS FROM RECORDS OF DISCUSSIONS IN FOCUS GROUPS
More than that, squatting is specific of not only
Crimean Tatars – it is ever more used by representatives of
the Slavic community. According to the Majlis estimates,
Crimean Tatars are responsible for only a quarter of cases
of squatting96. Meanwhile, republican law-enforcement
bodies persecute mainly Crimean Tatars97.
Provision with farming land. According to estimates
made by activists of the Crimean Tatar national movement,
before the beginning of forced deportation in 1944, over
90% of Crimean Tatars lived in rural areas98. All the adult
population of Crimean villages was made up of members
of collective farms and other agricultural enterprises with
the total area of 732.4 thousand hectares99.
According to the State Statistics Committee of the
AR of Crimea, in 2000, the rural population of Crimea
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 47
a trend towards underfunding of programme activities
(both from the state and republican budgets), compared to
the programme targets (Table “Progress of implementation
of the Programme of settlement of and amenities for
deported Crimean Tatars…”).
Given such funding, the high inflation rate in Crimea
(in 2008 – 23.2%, as of May 2009 – 8.9%108) and significant
growth of prices of land and housing in the autonomy (at
the beginning 2008 – some 45% a year109), one may hardly
hope for a higher pace of repatriate provision with housing
than now – 340 apartments a year. If this pace persists,
satisfaction of housing needs of repatriates will take
23 years (now, the housing queue includes some
7.8 thousand families of repatriates, or nearly 10% of all
Crimean residents who need better housing conditions110).
108 Data of the State Statistics Committee of Ukraine.
109 “…All operators expect intense growth of prices in Crimea (up to 50% per annum)”. Real Estate in Crimea. – Kyiv and Ukrainian Real Estate Portal,
http://freehouse.com.ua/9
110 Now, 77.3 thousand persons who need better housing conditions are on the housing queue in Crimea. – е-Krym information agency, June 10, 2009,
http://e-crimea.info/2009/06/10/23257.shtml
111 Why Is the Programme of Settlement of and Amenities for Deported Crimean Tatars and Persons of Other Nationalities Not Implemented? – Accounting
Chamber Press Service, June 13, 2005, http://www.ac-rada.gov.ua/achamber/control/uk/publish/article/main?art_id=468127&cat_id=41434
and delay of terms of provision of repatriates with
housing and utility services;
• ineffective management of property created for
budget funds and intended for repatriates by the State
Committee of Ukraine for Nationalities and Religions,
republican authorities and local self-government
bodies in the AR of Crimea, its unlawful use for the
benefit of other individuals and legal entities;
• absence of effective and transparent mechanisms
(in particular, accounting and registration systems)
for settlement of repatriates and satisfaction of their
needs.
The main consequences hindering the processes of
provision of amenities for repatriates include:
• rise of corruption, joint irresponsibility, uncontrolled
division of land resources, which substantially
sharpens rivalry of rank-and-file citizens for
resources;
• growth of legal nihilism in land relations and among
citizens, including on ethnic and confessional
grounds;
• loss of public trust in the authorities and a growing
feeling of the need to rely on own powers,
prompting radicalisation of social relations and
ever more leading to extremist behaviour of some
social groups;
• political and social instability, escalation of the
pre-conflict situation (on evolution of actions
dealing with land issues into political ones see
subsection 2.1 and item 1 of this subsection).
Legal and economic factors seriously contribute
to aggravation of the situation in the AR of Crimea.
There are resources for problem solution, but they are
used ineffectively, not for their target use, for selfish
personal and corporate interests.
Given the absence of a clear migration policy,
registration of repatriates and their needs, a timely
created land and housing stock, lack of funds, the problem
of settlement of Crimean Tatars remains unresolved,
causing strong social tension and adding to confrontation
between the Slavic and Crimean Tatar communities.
The situation is aggravated by confrontation
of political forces, imperfect legal and practical
mechanisms of solution of land issues, non-transparent
activity of the authorities. Those drawbacks enable
unlawful modification of the target use of land, its
uncontrolled allotment for non-target use, present one
of the main factors of corruption, causing indignation
of citizens, prompting them to illegal acts and stirring
up enmity among social groups.
In view of all this, the acuteness of the pre-conflict
situation concerning the settlement of and amenities for
Crimean Tatars cannot be assessed by the frequency of
disputes and protests alone. It should be considered in the
context of the general institutional, socio-economic and
political processes in the Crimea and whole of Ukraine.
Progress of implementation of the Programme of
settlement of and amenities for deported Crimean
Tatars…, as of December of the relevant year
2006 2007 2008 2009
(plan)
State Budget, plan*
UAH million
66.4 82.0 94.8 53.3
in fact, % 80.0 80.8 67.9
Republican budget, plan*
UAH million
24.5 26.0 30.0
in fact, % 99.5 73.4 53.9
Total, plan*
UAH million
90.9 108.0 124.8
in fact, % % 85.1 79.0 64.5
Construction of housing, м2 7,803.7 11,520.5 5,971.4 7,800
Buyout of housing, м2 5,737.3 1,254.1 823.7
Power lines, km 5.6 9.9 7.3 5.8
Water supply networks, km 28.4 24.7 25.8 30.7
Gas supply networks, km 77.0 75.3 50.4 22.9
Telephone lines, km – 1.25 –
Radio networks, km – 1.25 –
Sewerage, km 0.7 – –
Roads, km 2.6 – –
* Envisaged by the Programme.
Source: Information of the Republican Committee for Affairs of Nationalities and
Deported Persons on implementation of programmes of settlement of and facilities
for deported Crimean Tatars and persons of other nationalities… for the relevant
years, http://www.comnational.crimea-portal.gov.ua
The State Budget allocated to the Programme implementation in 2009 UAH 58.3 million
less than envisaged by the Programme (some 48% of the need). See: web site of the State
Committee of Ukraine for Nationalities and Religions. – http://www.scnm.gov.ua
Proceeding from the results of audit of the programme
implementation, the main factors of unsatisfactory
fulfilment of plans of amenities for repatriates included111:
• organisational deficiencies – uncertainty of relations
between the body responsible for the Programme
(Republican Committee for Nationalities and
Deported Persons) and the body managing budget
funds (State Committee of Ukraine for Nationalities
and Religions) bars their effective interaction,
management of the Programme and control of its
implementation;
• non-target and ineffective use of financial resources
by management bodies at all levels, resulting in
underfulfilment of tasks, impairment of the quality
FACTORS INFLUENCING THE SITUATION IN CRIMEA
48 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
Description of media resources113
Crimean media resources are distinctly structured
by language. This especially applies to the printed
media, where the state information policy is very poorly
represented. That policy is more felt on TV and radio,
namely – in the language issues.
Printed media. Russian-language printed media
present the biggest and rather stable segment; the Crimean
Tatar segment is smaller, but growing; Ukrainian-language
is the smallest. Such segmentation is observed in actually
all kinds and elements of media resources.
The aggregate (one-time) circulation of Russian-language
printed products published in the Crimea exceeds 1.5 million
copies. Meanwhile, the total circulation of printed periodicals
in the Ukrainian and Crimean Tatar languages does not
exceed 7.2% of the total volume (Insert “Publication of
printed output in Crimea in 2005-2008”).
112 According to the sociological survey, 90.8% of Crimean residents speak Russian at home. According to the Crimean poll of 2008, 91.5% of Ukrainians and
79.9% of Crimean Tatars are fluent in the Russian language.
113 Unless specified otherwise, data are taken from the official web site of the State Committee for Television and Radio Broadcasting of Ukraine, where
information is presented as of the end of 2008, http://comin.kmu.gov.ua. Data of the Book Chamber differ from the data of the State Committee for Television
and Radio Broadcasting and are cited here as an estimate of summary data and for illustration of the dynamic of periodicals.
2.3. FRAGMENTATION OF INFORMATION
SPACE OF CRIMEA AND ITS
VULNERABILITY TO EXTERNAL
INFLUENCES
The situation in the information space of the AR of
Crimea reflects developments in society. On the other
hand, behaviour of some actors in the information space
contributes to formation of relevant spirits, including
negativist, in society.
The information space of the autonomy is evidently
dominated by the Russian language and pro-Russian
ideology. There are several reasons for that: (а) the nature
of the audience, almost totally understanding Russian112;
(b) an active policy of Russian-language mass media and
pro-Russian organisations; (c) absence of an active and
effective information policy of the central authorities.
Crimean media actively employ the “language of
enmity”, making them a catalyst of social tension.
PUBLICATION OF PRINTED OUTPUT IN CRIMEA IN 2005-2008*
Books and brochures
Language of editions
2005 2006 2007 2008
Number,
units
Circulation,
thousand copies
Number,
units
Circulation,
thousand copies
Number,
units
Circulation,
thousand copies
Number,
units
Circulation,
thousand copies
AR of Crimea,
incl.:
170 196.3 241 319.3 188 211.3 477 430.8
Ukrainian 19 25.7 38 20.7 18 7.9 55 77.2
Russian 119 145.7 161 264.5 131 163.0 343 300.9
Crimean Tatar 14 14.9 19 24.0 19 31.4 24 25.6
Sevastopol,
incl.:
92 75.9 112 114.8 132 99.4 142 101.2
Ukrainian 3 2.6 9 6.5 6 3.8 6 1.0
Russian 72 56.8 81 90.9 100 91.2 108 27.6
Crimean Tatar 1 3.0 - - - - - -
Newspapers
Language of editions
2005 2006 2007 2008
Number of
editions,
units
Number of
issues,
units
.
Total
average
(one-time)
circulation,
thousand
copies
Number of
editions,
units
Number of
issues,
units
.
Total
average
(one-time)
circulation,
thousand
copies
Number of
editions,
units
Number of
issues,
units
.
Total
average
(one-time)
circulation,
thousand
copies
Number of
editions,
units
Number of
issues,
units
.
Total
average
(one-time)
circulation,
thousand
copies
AR of Crimea,
incl.:
48 2,357 1,324.4 48 1,825 1,124.9 53 2,555 1,019.7 50 2,420 1,040.2
Ukrainian 2 95 14.3 2 80 19.5 2 95 14.6 3 107 16.0
Russian 46 2,262 1,310.1 46 1,745 1,105.4 51 2,460 1,005.1 47 2,313 1,024.2
Crimean Tatar - - - - - - - - - - - -
Sevastopol,
incl.:
6 125 782.5 3 109 9.0 5 335 297.1 5 273 170.2
Ukrainian 1 6 3.3 1 10 5.0 1 12 5.0 1 7 5.0
Russian 4 69 777.2 1 51 2.0 3 223 290.1 3 166 163.2
Crimean Tatar - - - - - - - - - - - -
Periodicals
Language of editions
2005 2006 2007 2008
Number of
editions,
units
Number of
issues,
units
.
Total
average
(one-time)
circulation,
thousand
copies
Number of
editions,
units
Number of
issues,
units
.
Total
average
(one-time)
circulation,
thousand
copies
Number of
editions,
units
Number of
issues,
units
.
Total
average
(one-time)
circulation,
thousand
copies
Number of
editions,
units
Number of
issues,
units
.
Total
average
(one-time)
circulation,
thousand
copies
AR of Crimea,
incl.:
33 99 25.2 38 155 69.4 37 154 35.6 43 144 39.6
Ukrainian 1 3 0.3 1 3 0.2 1 1 0.1 3 7 1.8
Russian 14 55 15.3 19 86 59.0 19 65 24.6 17 49 23.4
Crimean Tatar - - - 1 4 1.2 - - - 1 3 1.8
Sevastopol,
incl.:
12 42 3.0 9 32 3.6 16 39 6.0 15 41 5.5
Ukrainian - - - 1 4 1.0 1 3 1.0 1 6 1.0
Russian 6 18 1.9 4 11 1.1 6 14 2.0 7 16 2.5
Crimean Tatar - - - - - - - - - - - -
* Source: The Book Chamber of Ukraine.
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 49
114 Third Report of Ukraine on implementation of the Framework Convention
of the Council of Europe concerning Protection of National Minorities
(2009), p.67
115 Interview with H.Ioffe, Chairman of the Permanent Commission of the
Verkhovna Rada of the AR of Crimea for Parliamentary Ethics and Mass Media,
during the Round-table “Crimean TV: yesterday, today and tomorrow”. –
“Krymskoe Ekho”, September 11, 2008, http://kr-eho.info/index.php?name=
News&op=article&sid=1404
116 According to the State Committee for Television and Radio Broadcasting,
TV programmes of “Krym” State Television and Radio Company are 65.5%
transmitted in the Ukrainian, 5% – Crimean Tatar, 29.5% – Russian and other
languages. Radio programmes: 42% – Ukrainian, 38.7% – Russian.
117 As of February, 2009, the Ukrainian Internet audience totalled 10.9
million persons; with the share of Crimean users making 2.9%, or nearly 316
thousand persons. Data of the Ukrainian portal Bigmir)net “Global statistics
of Ukrainian Internet” for February, 2009. – UNIAN, March 10, 2009.
118 Bohdanovych O. Internet in Ukraine: Crimean autonomous access. –
Proceedings of V.I. Vernadskyi Tavrian National University, Simferopol, No.1,
2008, pp.310-313.
119 Information space of the AR of Crimea as an element of the Ukrainian
information space: problem of balance. Memorandum of the Simferopol
Regional Branch of the National Institute of Strategic Studies, May 2008 –
Official web site of the National Institute of Strategic Studies, http://www.
niss.gov.ua
120 See, e.g.: Third report on Ukraine. European Commission against racism
and intolerance, Strasbourg, February 12, 2008, p.7.
The Crimean TV and radio space is dominated by the
Russian language, although Ukrainian gradually gains
ground, at least on state TV channels (Table “Volumes of
TV and radio broadcasting by state companies...” on map,
pp.42-43). According to the State Committee for Television
and Radio Broadcasting, today, no broadcaster in Crimea
except “Krym” State Television and Radio Company
observes the legislative norm of not less than 50% of
“national audio-visual products or musical compositions
by Ukrainian performers” in total air116.
Purely Crimean Tatar audience is targeted by ATR
TV channel (planned 80% coverage of the autonomy’s
territory) and “Meydan” radio station (only the central
and steppe part of the Crimea). A Crimean Tatar national
editorial board of “Krym” State Television and Radio
Company is active.
Internet resources. According to the public opinion
poll, 16.4% of Crimeans (over 310 thousand persons) have
Internet access at home, which fits the data of Internet user
registration117. Internet is available mainly in big cities and
resorts of the South-Eastern coast of Crimea. For instance,
in Simferopol, some 20% of families are Internet users,
while the Crimean average rate is 4%118.
In the recent years, there appeared more personal web
sites of political figures, public organisations, heads of big
state and non-state structures that somewhat changed the
socio-political content of the Crimean Internet space119.
350-400 printed media, TV and radio companies have
Internet versions. The Internet is dominated by the Russian
language.
The Internet is mainly used by youths and people of
the middle age. Due to its global nature and democracy of
communication with the audience (“read not what I am given
but what I find”), the Internet promotes language mobility
of the mentioned groups of the population. Meanwhile,
saturation of its content and relative accessibility of the
Internet pose a risk of spread of xenophobic information,
which arouses ever greater concern120.
Only two newspapers in Crimea are published in
the Ukrainian language – “Krymska Svitlytsya” and
“Budmo”.
Published only in the Crimean Tatar language are
newspapers “Maarif Ishler”, “Yanyi Donya”, “Uchan-Su”
(an attachment to newspaper “Vremya, vpered”) and
magazines “Tasil” and “Qasevet”.
Quite many printed Crimean Tatar periodicals are
published in several languages (Crimean Tatar, Ukrainian,
Russian), including newspapers: “Qirim/Krym”, “Hidayet”,
“Areket”, “Kerch Haberjisi”, “Tesir”, “Yurt”, “Vatan
Hatima”, “Maalm”, “Qasaba/Selyshche”, “Kurman”, “Altin
Yaruq/Zolotyi Blysk”, “Halq Sedasi”, “Baladar Dunyasi”,
“Gezlev”, “Zaman”, “Dialog”, “Golos Molodiozhi”,
“Haberci”, “Avdet”, “Devir” and magazine “Tan”114.
All-Ukrainian and Russian printed periodicals are
also distributed in Crimea, including versions of the latter
registered in Ukraine, more preferred by Crimeans, as
compared to the Russian.
Printed products are distributed by 2 inter-regional,
2 republican, 27 city, 33 district, 9 inter-district
organisations. The biggest media distribution networks are
operated by “Krymposhta” (postal agency) (distribution of
subscribed publications, municipal newspapers and printed
periodicals) and “Krymsoyuzpechat” (sells in Crimea
70% of all Crimean periodicals and 30-50% of Ukrainian
periodicals).
TV and radio resources. There are 86 TV and radio
companies registered and operating in Crimea, including:
14 air TV companies; 15 air radio stations; 12 radio
studios; 44 cable TV and radio companies; 1 air-cable TV
and radio company.
TV COVERAGE OF THE CRIMEAN TERRITORY
TV networks
national: UT-1 – 97%; UT-2 (“Studio 1+1”) – 80%; UT-3 (“Inter”) –
80% of the Crimean territory;
regional: “Krym” State Television and Radio Company –
74.63%; “Chornomorska” Television and Radio Company –
84.11%; “Zhysa” Television and Radio Company – 30%
(Simferopol, more than 30 TV channels, including from Russia
and other countries).
Mountainous villages housing almost 160 thousand Crimeans
have poor air coverage (or no coverage at all)115.
Radio networks
national: UR-1 – 86%, UR-2 – 82% of the Crimean territory;
regional: “Trans-M-Radio” – 70%.
TV and radio companies are especially active in Simferopol city
and district, with five regional and local TV channels, 17 FM radio
stations.
The Crimean retransmission network operates more than 200
transmitting devices, 185 of them used for state broadcasting.
TV and radio programmes are mainly retransmitted by the
state enterprise Radio and TV Transmission Centre of the AR of
Crimea.
There are 259,915 wired radio outlets in the Crimea. The number
of wire radio subscribers in Ukraine steadily goes down. The wire
network, especially in rural areas, is in a poor state.
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CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
(“Krymsoyuzpechat”, “Krymkniga”) and 78 TV and radio
companies are privately owned. Private Crimean mass
media are owned by a few persons closely related with
certain political forces and lobbying political and business
interests via the controlled media124.
Ideological content of media space
The Crimean media space, as a reflection of social
relations in the autonomy, is extremely polarised, bears
elements of intolerance and even aggression. This is
witnessed by conclusions of many political figures,
political scientists, analysts in the field of socio-political
relations, results of polls of Crimean residents and
special focus group studies, including those conducted by
Razumkov Centre125.
Mass media made a huge “contribution” to inadequate
mutual mental perception by representatives of different
Crimean social groups, creating an unfavourable
background for the development of inter-ethnic relations
in Crimea. The main reasons for that include excessive
politicisation of those relations, outside influence
on mass media, mainly passive reaction of the state
authorities to violations of the Ukrainian legislation, and
internal problems of the Crimean journalism, all together
resulting in intentionally distorted coverage of events and
developments in the autonomy and growth of tension in
society.
In particular, according to experts, “tides of conflicts
in the field of inter-ethnic relations largely stemmed from
provocative behaviour of some politicised groupings and
mass media, and witness non-professionalism and shortsightedness
of many actors of political and information
processes”126. The dynamic and subjects of Crimean
media reports in the field of inter-ethnic relations largely
depend on PR activity of ethnic organisations (Diagram
“Information activity of national public and political
organisations of Crimea in 2008”). In turn, the frequency
121 Ibid.
122 From presentations at the Radio “Svoboda” Round-table “Problems of Crimean Mass Media”. – Radio “Svoboda”, April 2, 2009, http://www.svobodanews.
ru/content/transcript/1601398
123 Presentation by the Head of the Committee for Monitoring of Freedom of Press in Crimea. – Ibid.
124 Mentioned among big owners of Crimean media (or political figures they serve) are A.Senchenko, Yu.Yekhanurov, V.Horbatov, A.Tretyakov, V.Shklyar,
I.Khaibullayev, S.Kunitsyn and others. See: Sergeev G. Who owns Crimean media. – “Pervaya Krymskaya”, August 8, 2008, http://1k.com.ua/236/details/6/2
125 For more detail see section 1 of the Analytical Report.
126 Monitoring of Crimean mass media, conducted in April-December 2008 by the Kuras Institute of Political and Ethno-National Studies together with Partkom
Information Agency as part of the study “Social adaptation of Crimean Tatar repatriates: challenges for the state policy”. The monitoring covered 23 printed
periodicals, five news agencies and Internet sites of the autonomy.
Information agencies. Information products for
mass media are professionally offered mainly by four
information agencies: Crimean branch of Context-Media
Information Agency (all-Ukrainian), Crimean News
Agency, Crimean Information Agency (republican),
Information-Analytical Agency “Novyi Region – Crimea”
(Russian). There is a Crimean Tatar agency QHA (Qirim
haber ajansi, registered as “Crimean News” Agency),
the only one in Ukraine entitled to provide information
in five languages (Russian, Turkish, Ukrainian, English
and Crimean Tatar, using however mainly the Russian
and Turkish languages, with some reports translated in
English)121.
According to assessments of the Committee for
Monitoring of Freedom of Press in Crimea, the Crimean
journalist corps 90% consists of Russian-language
journalists working in the Russian-language press; the
rest works in the Crimean Tatar and Ukrainian languages,
the latter making a meagre part122. The most demanded
are Crimean Tatar journalists commanding their
native, Russian and Ukrainian languages, more tolerant in
communication and less biased in coverage of events and
the general situation123.
Media owners. By the form of ownership, mass media
are divided into state, municipal and private.
State: newspaper of the Verkhovna Rada of the
autonomy “Krymskie Izvestiya” (in Russian, with
Ukrainian-language attachment “Krymskyi Dialog”),
distributor of printed periodicals “Krymposhta”, and state
TV and radio company “Krym”.
Municipal: 27 municipal publications and seven
municipal radio studios founded by local bodies of state
power.
Private: the overwhelming majority of printed
mass media, the main distributors of printed products
Do you have access to Internet?*
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
Do not use Internet 65.7 63.6 64.3 68.8 61.5 37.2 51.9 65.6 78.5 95.1 60.9 69.3
Have access to Internet at home 16.4 11.4 15.1 20.4 24.6 29.7 24.8 15.7 9.3 2.6 18.1 15.0
Have access to Internet at work, at the
educational establishment
14.2 15.2 16.4 9.7 12.2 23.8 20.5 15.1 11.0 1.5 15.9 13.0
Use Internet at the Internet-café 4.9 10.9 5.8 1.7 3.8 11.9 6.3 3.8 1.7 0.0 6.7 3.6
Use Internet at the post-office 0.5 1.1 0.3 0.9 1.5 1.5 0.3 0.3 0.0 0.4 0.9 0.3
Hard to say 1.4 0.5 1.4 1.9 0.8 2.1 0.9 1.7 1.4 0.9 1.3 1.6
* Respondents were asked to mark all acceptable answer variants.
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127 Starting from 2002, Information and Research Centre “Integration and Development” performs all-round monitoring of periodicals (Crimean and national) to
detect the “language of enmity”, signs of racism, xenophobia and other forms of intolerance. The latest monitoring was conducted in October-December, 2008.
See web site of the Information and Research Centre “Integration and Development”, www.integration.org.ua. In early 2008, the Association of Polish Journalists
in Ukraine on the order of public organisation “Information Press Centre” conducted in Crimea a focus group study “Identification of the degree of tolerance of
Crimean mass media, signs of ethnic and religious xenophobia in materials of journalists”. See: Language of Enmity against Inter-Ethnic Relations. – Association
of Polish Journalists in Ukraine, June 1, 2008, http://www.sdpnu.org.ua/?subpage=155
128 Crimean press – a den of misanthropes? – Novosti Kryma Crimean News Agency, November 19, 2008, http://news.allcrimea.net/news/2008/11/19/
1227080640; Klymenko N. Crimean media demonstrate national intolerance. – е-Crimea information agency, March 17, 2009, http://www.e-crimea.info
129 Anti-Tatar and anti-Ukrainian publications in newspapers “Krymskaya Pravda” and “Krymskoye Vremya” were considered by the Commission for Journalist Ethics
yet in 2004. The Commission’s statement of July 19, 2004, termed actions of journalists and managers of those newspapers as “conscious violation of norms of
journalist ethics, absolutely inconsistent with principles of professional ethics”. – Web site of the Commission for Journalist Ethics, www.cje.org.ua/statements/20
130 Meanwhile, the Crimean media market is being monopolised through consolidation of producers and distributors of information products. E.g., the largest
distribution company (“Krymsoyuzpechat”) was bought by Kartel group of companies. The group structures include All-Ukrainian Subscription Agency, uniting
some 300 retail outlets selling press in Ukraine. Kartel belongs to IFD Kapital group allegedly owned by LUKOIL top managers. See: Kartel publishing group
bought press sale network in Odesa. – “Kommersant-Ukraina”, July 24, 2007, http://www.kommersant.ua/doc.html?DocID=789399&IssueId=41355
131 Kuras Institute of Political and Ethnic Studies of the National Academy of Sciences of Ukraine. Monitoring of Crimean mass media…
132 Interview with V.Prytula, Chairman of the Committee for Monitoring of Freedom of Press in Crimea. – Web site Marketing Media Review, August 15, 2008,
http://mmr.net.ua/interview/id/51/index
133 For more detail see: Antonenko K. Racism, chauvinism and xenophobia, ethnic discrimination in the AR of Crimea: specificity of the region and new
challenges for Ukrainian statehood in 2008 – Simferopol, Crimean Independent Centre of Political Scientists and Journalists, April-September, 2008.
134 Yearbook “White Book of Crimean Journalism 2008”. – Committee for Monitoring of Freedom of Press in Crimea, Simferopol, 2008. According to the White Book
of Crimean Journalism 2006, in 2006, such pressure was experienced by “Krymskaya Gazeta”, “Krymska Svitlytsya”, “Golos Kryma”, “Yanyi Donya”, “Qirim”.
were discovered, containing elements of the “language
of enmity”, signs of racism, xenophobia and other forms
of intolerance. The list of periodicals whose materials
contain the most frequent and “harsh” expressions is led
by Crimean publications “Avdet”, “Krymskoye Vremya”,
“Golos Kryma”, “Krymskaya Pravda”129.
Internet with its “feedback” capabilities occupies
a special place – on forums, readers can present their
opinions and assessments. The practice of discussion of
inter-ethnic problems on such forums shows that they
often become a platform for xenophobic spirits, tactless
and openly hostile expressions about representatives of
other nations.
Furthermore, it is no secret that on some web sites one
can find all kind of instructions, from cooking to terrorist.
And in that case, nobody mentions language or any other
discrimination.
Political aspect. Despite the above-mentioned
formal division of mass media in the Crimea into state,
municipal and private, in reality, they are divided by
control of certain political and business circles and their
representatives. Now, this division is actually over130.
Political affiliation of media owners influences the trend
and nature of their products. Under their influence,
especially to gain votes before elections, the mentioned
media often speculate on the problems of inter-ethnic
relations131.
According to the Chairman of the Committee for
Monitoring of Freedom of Press in Crimea V.Prytula,
“the main distinction of Crimea is that the information
market here is developing not as a business but as an
ideological battlefield used for information wars”132.
The “language of enmity” has become an indispensable
element of political discourse in the Autonomy. It is
present in speeches in the Verkhovna Rada of the AR of
Crimea, activists at meetings, in the air of TV channels, in
the press133. Mass media has become a tool of attainment
of political goals.
The development of journalism and mass media in
Crimea is badly affected by the local authorities. The main
problems here include134:
and character of media coverage of sensitive for Crimean
society land and language issues present an important
factor of the conflict potential and growth of tension in
relations among socio-cultural groups.
General media coverage of inter-ethnic relations in
Crimea. Now, the situation in that field may be termed
as dangerous instigation of racism, xenophobia and other
forms of intolerance in inter-ethnic relations by mass
media.
According to the results of special surveys127, the
lack of tolerance is one of the acutest problems of the
Crimean media, and the “language of enmity” has
become a common thing in the information space of
the autonomy, where many publications cover national
problems is a biased manner, and the ethnic component is
present all too often, not always reasonably, in materials
about everyday life, historic articles, features about
specific persons, descriptions of Ukraine’s residents,
even in ads128.
From October till mid-December 2008, in 32 out of
35 publications selected for monitoring nearly 800 reports
FACTORS INFLUENCING THE SITUATION IN CRIMEA
-♦-
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CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
The level of external information threat is witnessed
by an extract from the decision of the Board of the State
Committee for Television and Radio Broadcasting “On
the State of Information Space of the AR of Crimea” of
May 29, 2008: “The territory of the peninsula is under
strong information influence of the neighbouring countries.
The autonomy’s territory is the scene of informationpsychological
campaigns deceiving society, posing a
threat to the territorial unity of the country, hindering
pursuance of the state policy of the European and Euro-
Atlantic integration”137.
The problem lies not only in the scale and depth of
foreign influence, but first of all – in the absence of an
adequate by scale and quality policy of the central
Ukrainian authorities, from the viewpoint of prevention
of negative consequences, and an adequate response to
dangerous trends:
• absence of safeguards is mainly seen in the lack
of system (and logic) in actions of the authorities,
absence of a strategy of socio-economic
development, regional and ethno-national policy, in
particular, in Crimea, and a system of protection of
national interests in line with that strategy. In such
conditions, local authorities and external actors
are free to pursue their policy138. Collision of their
interests gives rise to confrontation of different
political forces seeking support from voters, which
in the end affects citizens and their relations.
More than that, actions of the central authorities
sometimes look provocative due to the neglect of
the Crimean specificity139;
• inadequate reaction of the authorities is
manifested in the absence of adequate legal
assessments and proper actions on the part of
both central (Ministry of Internal Affairs, Security
Service of Ukraine, National Council for Television
and Radio Broadcasting, State Committee for
Television and Radio Broadcasting) and republican
(Republican Committee of the AR of Crimea for
Information) authorities.
Internal problems of Crimean journalism. Along
with the influence of external and internal political factors,
development of journalism and mass media in Crimea,
enhancement of their role in civil society building are
hindered by problems related with their breach of the Ethic
Code of a Ukrainian Journalist, in particular:
• selective presentation of information, disrespect for
the right of society to full and unbiased information
about facts and events;
• distortion of reality, mixing facts, personal judgements
and authors’ assumptions in publications;
135 Strategy of National Security of the Russian Federation through 2020. – Web site of Russia’s Security Council, http://www.scrf.gov.ru/documents/99.html;
Defence and popularisation of the Russian language is a priority task of Russian Foreign Ministry – Lavrov. – UNIAN, November 3, 2008. The Russian language
and Russian culture are promoted by 50 Russian centres of science and culture and 26 representative offices of “Roszarubezhtsentr”.
136 Interview with V.Prytula, Chairman of the Committee for Monitoring of Freedom of Press in Crimea …
137 Web Site of the State Committee for Television and Radio Broadcasting, http://comin.kmu.gov.ua/control/uk/publish/printable_article?art_id=64968
138 See: Artemenko M. “Third force” tries to turn Crimean Tatars separatists? – “Golos Kryma”, March 14, 2008.
139 The biggest echo in Crimea was caused by the Ministry of Education and Science of Ukraine Order No.461 of May 26, 2008 “On Approval of Branch
Programme of Improvement of Study of Ukrainian Language in General Educational Establishments with Study in Languages of National Minorities for
2008-2011” and the National Council of Ukraine for Television and Radio Broadcasting Decision “On Non-Implementation by Programme Service Providers of
Decisions of the National Council and Articles 40 and 42 of the Law of Ukraine “On Television and Radio Broadcasting”. The appearance of those documents and
their inconsiderate fulfilment met a negative response of not only the Crimean authorities but the wide audience of Russian-language mass media.
• existence of censorship as a system of control on
the part of the authorities in actually all state and
municipal media of Crimea and many independent
publications;
• preservation of the trend towards political pressure
on journalists and physical impediment for their
legitimate professional activity, and absence of
an adequate reaction to that on the part of lawenforcement
bodies;
• growing non-publicity of the authorities, violation
of the right to free collection of information by
restriction of journalist access to it;
• limitation or threat of limitation of publication
funding.
But despite the strong influence of the political factor
on inter-ethnic relations, the public gradually realises the
manipulative nature of the information policy of some
media and views them accordingly.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
U: “The problems we see on TV and read about in the Crimea
seem artificial”.
Т: “The level of relations now depends on mass media and politics”.
Т: “As far as mass media are concerned, I advise looking through
periodicals since the return of Crimean Tatars. Krymskaya Pravda
and Krymskoye Vremya newspapers... are pursuing a target-minded
policy of instigation of ethnic enmity”.
Т: “If the Crimea is for one year isolated from mass media, from
news... I am 99% sure that the opinion of everyone, Ukrainians,
Russians, all, will change. The level of relations now depends on
mass media and politics”.
External influence. The most effective tools of
influence on the Crimean information space are available
to Russia. Active use of those tools not only meets no
counteraction but presents a priority of Russia’s foreign
policy and an important method of influence in its relations
with Ukraine135. Information influence is exerted not only
directly, via Russian printed and electronic media, but also
through actualisation of certain subjects, ideas, problems
in the local media, determination of the character and
sequence of their coverage (influencing the editorial
policy of controlled publications, PR-events of concerned
ethnic public organisations, etc). The latter is much more
dangerous than direct influence, since problems imposed in
such way from outside are seen by the Crimean residents
as their own, that cannot be ignored but must be solved
somehow.
The Ukrainian state lost influence in Crimea even on
the media where it was a founder. They are often used for
propaganda against Ukraine’s European choice, accession
to NATO, in support for the Russian status of Crimea136.
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140 Results of monitoring of xenophobia in Crimean Mass Media by the Information and Research Centre “Integration and Development”. – “Novosti Kryma”,
November 19, 2008, http://news.allcrimea.net/news/2008/11/19/1227080640
141 For summary data of the latest public opinion poll dealing with information preferences of Crimeans, see Annex 2, p.54 of this magazine.
142 Those media have respectively a positive or negative balance of trust (difference between the aggregates of “Trust” and “Most likely trust”, and “Do not trust”
and “Most likely do not trust” to the question “Do you trust the following mass media?”).
143 This Russian-language newspaper is linked to the Crimean Tatar political organisation “Milli Firka”. See: Information space of the AR of Crimea as an
element of the Ukrainian information space: problem of balance …
TV channel, “Volna” programme of “Chornomorska”
Television and Radio Company – they are trusted by
half of the total TV audience. Noteworthy, only 5% of
Crimeans watch “Novyny” on UT-1 state TV channel –
mainly, “Crimean Ukrainians”.
The second group of TV news programmes includes:
TSN (“Studio 1+1”) – trusted by a third of Crimeans; “12
Minutes of News” (“Krym” State Television and Radio
Company) and “Vremya” (ORT) – more than a quarter.
Less trusted are such programmes as “Segodnya”
(NTV); “Vesti” (“Russia” channel); “Fakty” (ICTV);
“Vikna-Novyny” (STB).
With few differences, representatives of both the Slavic
community and Crimean Tatars most of all trust news
reports of local and all-Ukrainian channels.
The most popular printed media. The popularity rating
of printed media among Crimeans is undoubtedly led by
“Krymskaya Pravda” newspaper. “Pervaya Krymskaya”,
“Vecherniy Gorod”, “Fakty i Kommentarii”,
“Komsomolskaya Pravda v Ukraine”, “Kommunist
Kryma” are also rather popular. Less but still popular are
newspapers “Krymskie Izvestia’ (official publication of the
Verkhovna Rada of the AR of Crimea) and “Segodnya”.
There are some differences in the popularity of printed
media among representatives of different socio-cultural
groups. For instance, “Krymskaya Pravda”, local versions
of Russian publications (first of all, “Komsomolskaya
Pravda v Ukraine”), and “Kommunist Kryma” are much
less popular among Crimean Tatars, compared to the
Slavic community. Instead, “Poluostrov” newspaper is
more popular143.
The Crimean information space is evidently divided
by language. The absolute majority of Crimean media
are published in the Russian language. The Crimean
Tatar segment is on the rise. The Ukrainian segment in
the Crimean media space is minimal.
Actually all Crimean media are influenced by the
authorities or political structures and used as a tool of
direct or concealed manipulation of the public opinion
by political forces struggling for power and resources
in the region.
Crimean media often stir up inter-ethnic tension by
publications in the “language of enmity”, promoting
xenophobia, instigating anti-Tatar and anti-Ukrainian
spirits.
The Crimean media space is subject to strong foreign,
mainly Russian, influence exerted directly by Russian
and via local Russian-language mass media. Ukraine’s
influence on the Crimean information space is minimal.
Such fragmentation of the Crimean information
space not only reflects the division of Crimean society
into socio-cultural communities but deepens it by
instilling ethno-centric feelings and forcing tension.
• bias and partiality in materials, disparity in
coverage of opposite opinions and assessments by
independent experts;
• intentional shift of emphasis in information about
events in domestic and criminal sectors, etc. to
inter-ethnic and inter-confessional relations, which
may be seen as discrimination on language, racial,
religious and ethnic grounds and an attempt to
provoke or step up tension in society140.
Information preferences of Crimeans141
Fragmentation of the audience of Crimean mass media
is caused by the specificity of identities of socio-cultural
groups of the Crimea, it takes the form of preference and
trust of Crimeans in some sources of information and
therefore secures fragmentation of the information space.
Trust in mass media. According to public opinion poll,
Crimeans tend to trust Ukrainian, Crimean and Russian
media, distrust – Western and, to some extent, Turkish
media142. The Russian media are the most respected in
Crimea (they are trusted by more than half of those polled).
They are followed by the Crimean and Ukrainian media,
trusted by more than 40% of Crimeans.
Meanwhile, the level of trust in mass media among
representatives of different socio-cultural groups seriously
differs. For more than half of representatives of the Slavic
community and for “Crimean Ukrainians”, Russian media
are the most respected. Crimean Tatars less trust mass
media (the level of trust does not exceed 40%), and if they
do, they trust Ukrainian and Crimean media. Russian mass
media enjoy trust of less than a quarter of the Crimean
Tatar audience. The Turkish media enjoy similar trust,
while the Western media are trusted by less than one-fifth
of Crimean Tatars.
Main sources of socio-political information. The
main sources of socio-political information for Crimeans
are television and local press. Ukrainian TV channels were
noted as such by almost three-quarters of respondents,
local – nearly two-thirds, Russian – a bit more than half.
The local press (Crimean, city, district newspapers)
serves as a source of socio-political information for more
than half of Crimeans, all-Ukrainian newspapers – a
bit more than a quarter, Russian newspapers – less than
5%. Local radio stations are a source of socio-political
information for approximately a quarter of Crimeans,
Ukrainian and Russian – nearly one-fifth.
Those who get socio-political information from the
Internet mainly take it from Russian, Ukrainian and local
Internet sites. Differences among socio-cultural groups
regarding Internet access are small.
Level of trust in news reports on TV. More trusted
by Crimeans news programmes include Ukrainian, local,
and Russian alike. The most trusted among TV news
are “Podrobytsi Tyzhnya” and “Novyny” on “Inter”
FACTORS INFLUENCING THE SITUATION IN CRIMEA
54 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
INFORMATION PREFERENCES OF CRIMEANS Annex 2
Do you trust the following mass media?
% of those polled?
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60 and
over
Male Female
Russian
mass media
Trust 12.3 4.3 13.4 12.8 9.2 13.4 8.1 11.3 12.4 15.1 12.5 12.4
Most likely trust 39.6 19.5 43.5 38.1 42.3 35.8 40.6 43.5 44.9 35.8 39.0 40.5
Most likely do not trust 17.8 27.6 14.7 20.5 29.2 18.7 21.0 16.3 16.7 16.0 19.4 16.3
Do not trust 13.5 16.2 11.8 15.9 14.6 13.8 14.1 13.8 11.6 14.1 13.1 14.0
Hard to say 16.8 32.4 16.6 12.7 4.6 18.3 16.2 15.1 14.4 19.0 16.0 16.8
Crimean
mass media
Trust 9.0 6.5 9.9 8.0 0.8 10.3 7.5 7.2 8.5 10.7 8.7 9.3
Most likely trust 40.2 31.4 42.9 37.9 54.6 38.7 39.1 43.5 44.6 36.8 41.5 39.7
Most likely do not trust 19.0 14.6 16.1 25.7 29.2 18.2 21.0 18.7 19.5 18.2 18.7 19.0
Do not trust 14.7 14.1 13.9 16.1 10.0 13.8 16.1 15.2 12.7 15.4 14.3 15.1
Hard to say 17.1 33.4 17.2 12.3 5.4 19.0 16.3 15.4 14.7 18.9 16.8 16.9
Ukrainian
mass media
Trust 7.4 3.8 8.5 6.6 4.6 7.7 5.2 6.9 7.9 8.8 7.7 7.2
Most likely trust 38.1 34.8 41.3 32.9 36.6 35.4 37.4 40.8 44.8 34.6 37.8 38.5
Most likely do not trust 22.5 15.2 18.9 31.0 40.5 22.4 26.4 21.8 20.0 22.2 22.7 22.4
Do not trust 16.6 15.2 15.7 18.5 13.0 16.1 16.1 17.9 14.6 17.3 16.4 16.8
Hard to say 15.4 31.0 15.6 11.0 5.3 18.4 14.9 12.6 12.7 17.1 15.4 15.1
Western
mass media
Trust 1.8 2.7 1.4 2.2 3.8 3.1 2.9 1.1 1.1 1.1 2.7 1.2
Most likely trust 21.7 14.7 25.3 17.3 16.8 20.9 24.2 28.1 20.8 16.2 21.2 22.5
Most likely do not trust 24.0 16.3 25.0 24.4 36.6 22.8 26.2 16.3 28.5 26.3 24.4 23.8
Do not trust 29.6 22.8 29.9 31.0 19.1 28.5 25.9 32.5 28.7 31.8 30.3 29.5
Hard to say 22.9 43.5 18.4 25.1 23.7 24.7 20.8 22.0 20.9 24.6 21.4 23.0
Turkish
mass media
Trust 0.9 2.7 0.2 1.5 3.1 1.5 1.1 1.4 0.3 0.2 1.2 0.7
Most likely trust 5.0 19.5 4.4 2.0 0.8 5.8 6.0 4.1 6.5 3.0 5.6 4.5
Most likely do not trust 22.7 11.4 24.5 22.7 27.7 20.5 25.9 21.4 25.6 21.5 21.6 23.9
Do not trust 35.0 19.5 37.1 35.5 28.5 35.9 32.2 36.8 32.1 36.9 35.1 35.8
Hard to say 36.4 46.9 33.8 38.3 39.9 36.3 34.8 36.3 35.5 38.4 36.5 35.1
What mass media are the main source of information about the events in Crimea for you?*
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
Ukrainian TV channels 73.7 67.9 81.3 61.3 57.7 72.2 73.2 75.3 75.7 73.3 75.2 72.7
Local TV channels (Crimean, city) 60.6 58.2 64.1 54.8 59.5 56.3 57.1 64.8 64.4 61.7 59.4 61.7
Local newspapers (Crimean, city, district) 54.0 52.7 61.2 41.1 29.2 46.9 52.7 55.5 56.3 59.2 54.4 53.6
Russian TV channels 52.5 51.6 55.2 47.7 37.7 54.8 53.6 54.3 49.3 50.4 53.9 51.5
Central Ukrainian newspapers 26.5 17.4 30.5 21.9 19.2 25.9 28.8 33.8 25.6 20.3 28.4 25.0
Local radio (Crimean, city) 23.0 31.5 22.7 21.0 16.8 23.8 21.9 21.4 25.1 22.4 24.0 22.3
Ukrainian radio 20.9 16.8 24.5 15.4 13.0 28.5 23.6 17.9 20.8 13.1 23.9 18.5
Russian radio 18.4 16.3 22.2 12.1 8.4 28.0 21.0 15.1 16.3 10.5 20.9 16.5
Russian Internet sites 12.6 14.7 12.2 12.7 14.6 25.3 18.4 10.7 6.5 1.3 16.2 10.0
Ukrainian Internet sites 10.0 13.0 10.5 8.3 6.2 20.1 14.9 8.0 5.4 1.3 13.2 7.7
Local Internet sites (Crimean, city) 9.6 14.1 9.8 8.0 7.6 17.8 16.1 8.0 5.4 1.1 11.7 8.1
Other foreign Internet sites 6.3 7.6 6.1 6.3 4.6 12.3 10.1 6.0 2.3 0.6 8.5 4.7
Russian newspapers 4.9 1.1 3.7 8.0 5.4 3.8 4.0 8.0 3.7 4.9 5.2 4.6
Other foreign radio 2.7 5.4 3.0 1.5 3.1 6.1 3.7 2.2 1.1 0.2 3.8 1.9
Other foreign TV channels 1.1 0.5 1.2 1.2 1.5 2.7 0.9 0.5 0.8 0.2 1.8 0.5
Other foreign newspapers 0.4 0.0 0.3 0.8 0.0 0.6 0.0 0.3 0.0 0.9 0.0 0.7
Other 1.4 4.3 1.0 1.4 0.8 1.7 0.6 1.1 2.0 1.5 1.4 1.5
Hard to say 5.8 4.3 4.2 9.1 13.7 4.6 6.3 5.2 4.5 8.3 5.4 6.3
* Respondents were asked to mark all acceptable answer variants.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 55
ANNEX 2
What newspapers have you read or looked through during the last two weeks?*
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
“Krymskaya pravda” 22.8 10.3 26.1 20.2 14.6 13.8 22.2 26.1 24.9 28.4 23.7 22.1
“Pervaya krymskaya” 12.9 11.4 13.5 12.2 17.6 12.1 17.5 17.4 13.8 6.0 13.8 12.2
“Vecherniy gorod” 12.4 6.5 14.6 10.0 6.2 13.0 10.7 11.8 13.0 13.2 12.8 12.1
“Facty i kommentarii” 11.8 10.3 14.3 7.4 9.2 13.2 14.1 12.9 13.8 5.8 13.2 10.6
“Kommunist Kryma” 10.3 0.0 14.1 6.0 0.0 1.5 4.0 8.2 13.0 23.5 8.9 11.4
“Komsomolskaya Pravda v Ukraine” 10.2 3.8 12.0 8.7 13.0 15.7 11.2 11.6 6.2 5.6 11.4 9.3
“Krymskie izvestiya” 7.3 7.1 8.5 5.4 0.0 4.4 6.1 8.5 9.0 9.0 6.9 7.8
“Segodnya” 6.0 6.5 6.7 4.8 9.2 5.0 9.2 7.2 7.1 3.0 6.8 5.5
“Slava Sevastopolya“ 4.7 0.5 4.9 5.4 5.4 3.8 4.3 5.5 5.6 4.5 5.0 4.3
“Krymskaya gazeta” 4.3 7.6 3.5 4.9 4.6 3.3 2.9 5.2 3.4 6.4 3.8 4.8
“Izvestiya - Ukraina” 2.5 0.5 3.8 0.8 0.8 4.8 2.6 1.9 2.3 0.6 2.9 2.2
“Region – Sevastopol” 2.0 0.5 2.3 1.9 0.0 1.5 1.7 2.5 1.7 2.8 2.3 1.5
“Krymskoye vremya” 1.9 1.6 2.0 1.7 0.8 2.7 1.1 2.5 1.7 1.5 2.0 1.9
“Poluostrov” 1.9 6.0 1.6 1.4 0.0 3.3 2.6 1.9 1.7 0.2 2.1 1.8
“Golos Kryma” 1.7 11.4 0.7 0.8 0.0 2.3 2.3 0.5 2.0 0.6 1.9 1.3
“Krymska svitlytsya” 1.7 0.5 1.9 1.7 3.1 4.4 0.9 1.4 0.6 0.9 2.3 1.3
“Pravda Ukrainy ” 1.4 0.5 2.2 0.3 0.0 0.8 0.6 2.2 1.1 2.4 1.8 1.1
“Vechirni visti” 1.0 0.0 0.8 1.7 3.1 1.3 0.3 1.4 0.8 1.1 1.0 1.1
“Golos Ukrainy” 1.0 0.5 0.8 1.5 3.1 0.8 0.9 1.1 1.1 1.1 0.9 1.1
“Veteran Sevastopolya” 1.0 0.0 1.4 0.6 0.0 0.0 0.6 1.1 0.6 2.6 1.3 0.8
“Sevastopolskaya pravda” 1.0 0.0 1.4 0.6 0.0 0.6 0.6 0.8 0.6 2.1 0.6 1.3
“Podrobnosti” 0.9 4.3 0.4 0.8 0.0 0.6 1.2 1.1 0.3 1.1 1.4 0.4
“Sevastopolskiy meridian” 0.8 0.0 0.9 0.8 0.8 1.0 0.6 1.6 0.3 0.4 0.6 1.1
“Zerkalo nedeli” 0.7 0.0 0.3 0.2 0.0 0.6 0.9 1.4 0.3 0.4 0.9 0.5
“Sevastopolskaya gazeta” 0.7 0.0 0.8 0.8 0.0 0.4 0.3 1.1 0.3 1.5 0.5 1.0
“Avdet” 0.6 4.9 0.0 0.5 0.8 0.2 0.3 1.1 0.8 0.6 0.9 0.4
“Flag Rodiny“ 0.4 0.0 0.3 0.6 0.0 0.0 0.0 0.3 0.6 1.1 0.6 0.2
“Krasnaya zvezda” 0.3 0.0 0.3 0.3 0.8 0.0 0.3 0.0 0.3 0.6 0.3 0.2
“Trud-Ukraina” 0.3 0.5 0.2 0.5 0.0 0.2 0.6 0.3 0.6 0.0 0.3 0.3
“Panorama” 0.3 0.0 0.5 0.0 0.0 0.4 0.6 0.3 0.3 0.0 0.5 0.2
“Sevastopolskie izvestiya” 0.3 0.0 0.5 0.2 0.0 0.2 0.3 0.5 0.3 0.4 0.1 0.5
“Den” 0.2 0.0 0.3 0.2 0.0 0.2 0.3 0.0 0.3 0.2 0.2 0.2
“Zerkalo” 0.2 0.0 0.0 0.5 0.8 0.2 0.0 0.5 0.0 0.0 0.0 0.3
“Flot Ukrainy” 0.1 0.0 0.1 0.2 0.0 0.2 0.3 0.0 0.0 0.0 0.2 0.0
“Koleso” 0.1 0.0 0.0 0.2 0.8 0.0 0.0 0.3 0.0 0.0 0.0 0.1
“Nash vzglyad” 0.0 0.0 0.1 0.0 0.0 0.0 0.3 0.0 0.0 0.0 0.0 0.1
Other 15.6 4.9 16.1 17.9 12.2 13.8 12.4 19.0 17.5 16.0 14.4 16.7
Any newspaper 27.4 28.8 24.3 32.6 38.5 29.5 31.7 23.4 26.3 26.1 26.6 27.9
Do not remember 7.1 7.1 7.1 7.0 6.2 10.5 6.3 7.4 5.1 5.3 7.0 7.1
* Respondents were asked to mark all acceptable answer variants.
What news programmes do you trust?*
% of those polled
CRIMEA Crimean
Tatars
Slavic
community
Other Crimean
Ukrainians
Age (Crimea) Gender (Crimea)
18-29 30-39 40-49 50-59 60
and over
Male Female
“Podrobnosti”, “Novyny” (“Inter” channel) 51.0 59.2 53.9 43.3 42.3 48.4 52.0 52.5 50.1 52.8 52.9 49.6
TSN (Studio “1+1”) 33.6 41.8 33.3 31.6 33.1 33.5 34.9 37.1 34.6 28.8 33.5 33.6
“Volna” (ChernomorskayaТRK) 49.1 52.2 51.8 43.2 40.5 46.2 49.9 51.9 45.4 52.2 49.3 49.2
“12 minut novostey” (GTRK “Crimea”) 27.6 33.7 32.0 17.9 14.6 26.5 25.1 28.6 31.0 27.6 27.8 27.8
“Vremya“ (ОRT) 26.2 27.7 26.5 25.3 14.6 27.8 25.9 25.3 24.2 27.1 25.6 26.6
“Segodnya ” (NTV) 20.5 26.6 19.0 21.6 18.3 21.5 23.3 20.3 20.8 17.1 21.4 19.7
“Vesti“ (“Russia“ channel) 18.2 12.5 22.0 13.1 9.2 18.6 17.2 19.0 14.4 21.2 19.0 17.7
“Facty” (ICTV) 17.7 10.9 19.4 16.5 14.6 17.3 20.4 16.8 18.6 15.6 19.8 15.9
“Vikna-novyny“ (STB) 14.4 19.6 13.6 14.4 12.2 16.1 13.0 19.6 11.0 12.4 16.4 13.0
“Haberler” (GTRK “Crimea”) 6.5 69.0 0.1 0.5 0.0 6.5 7.2 5.0 7.6 6.4 6.8 6.3
“Nashy novosti” (“ITV” channel) 6.3 0.5 7.8 5.1 1.5 4.0 5.7 6.6 5.9 8.8 5.8 6.4
“Sobytiya” (TRK “Ukraine”) 5.6 8.2 4.6 6.8 4.6 5.0 7.8 5.8 5.9 4.3 5.6 5.6
“Novosti “ (TRK “Neapol“) 5.3 9.8 3.8 6.8 4.6 8.1 4.6 6.0 2.3 4.9 5.8 5.0
“Novyny” (UT-1) 5.1 2.7 5.7 4.9 8.4 3.1 4.0 7.4 6.8 5.3 5.5 4.8
“Nashe vremya” − “Nash chas” (Sevstopol GTRK) 4.3 0.5 5.6 3.2 3.1 4.0 2.3 5.5 5.9 4.3 3.6 4.9
“Reporter” (“New channel”) 4.1 1.6 5.3 2.8 0.8 7.3 4.9 3.0 3.1 1.9 5.1 3.4
“Vremya novostej ” − “Chas novyn” (5th channel) 2.9 12.5 1.4 2.6 6.2 1.9 2.3 3.0 3.4 3.8 3.7 2.2
News channel “24“ 2.8 6.5 2.3 2.6 0.8 1.3 3.7 3.3 2.3 3.8 2.6 2.9
“Sevinformburo“ (“NTS“ channel) 2.1 0.5 2.5 2.2 0.8 2.1 2.9 2.2 1.7 1.9 2.3 2.1
“Novyny“ (TRK “Briz“) 1.7 0.0 1.8 2.0 1.5 1.0 1.1 2.5 2.3 1.7 1.5 1.8
“Odyn den’. Novyny” ( “К1” channel) 1.5 6.5 0.9 1.1 0.0 1.9 2.3 1.4 1.1 1.1 1.5 1.6
Information programme “24“ (RenTV) 0.8 0.5 0.8 0.9 1.5 1.0 1.2 0.5 0.8 0.6 0.7 1.0
“Yaltinskiy objective” (“Yalta-TV” channel) 0.8 0.0 0.9 0.6 0.0 0.8 0.3 0.8 0.6 1.1 0.9 0.7
Other 0.3 0.5 0.2 0.5 0.0 0.0 0.3 0.5 0.3 0.4 0.2 0.4
Do not trust any news programme 6.6 3.3 6.6 7.4 5.4 6.5 6.3 6.3 8.5 6.0 7.9 5.6
Do not watch news programmes 3.3 1.1 2.6 5.2 10.0 3.8 4.9 2.7 2.3 3.0 2.9 3.5
Hard to say 3.6 5.4 0.8 8.3 7.6 5.2 3.2 3.3 2.8 3.0 3.3 4.0
* Respondents were asked to mark all acceptable answer variants.
56 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
will to identify true priorities and allocate resources to their
attainment. For instance, over the period of implementation
of the Programme of Settlement of and Amenities for
Deportees… through 2006-2010, school construction
was planned only once – in 2006 (in Simferopol, for
200 pupils).
However, according to the First Deputy Head of
Majlis R.Chubarov, even in the existing Crimean Tatar
schools, the educational process is complicated by the
lack of textbooks in general educational disciplines in the
Crimean Tatar language, which complicates fully-fledged
secondary education147. However, according to the State
Committee for Nationalities and Religions, the situation is
gradually improving148.
There is a problem of pedagogues for Crimean Tatar
schools. Now, they are trained at the Crimean Engineering-
Pedagogical University in the specialities “Teacher of
Crimean Tatar language and Russian language”, “Teacher
of Crimean Tatar language and Ukrainian language”,
“Teacher of Crimean Tatar language and English language”,
“Teacher of elementary school”, and in V.I. Vernadskyi
Tavrian National University in the speciality “Teacher of
Crimean Tatar language and literature”149.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
Т: “There are only 15 national Crimean Tatar schools, but even
those schools are converted from old kindergartens. They do not
meet sanitary-hygienic norms. They are called national only because
of deeper study of the Crimean Tatar language, or Ukrainian, but
teaching is in Russian…”
Another not less important problem dealing with
education, development and use of the Crimean Tatar
language lies in the absence of higher educational
establishments with the Crimean Tatar language of study.
The situation with teaching of the Ukrainian language
in Crimea is also cheerless150. However, while young
Crimeans who learned in Ukrainian at school can continue
education at higher educational establishments of Ukraine,
their Crimean Tatar mates are deprived of this possibility.
Furthermore, a language not used in higher education
can hardly develop as a language of science, politics,
administration and judiciary. This substantially impairs
motivation to learn in the mother language that can later
be used only in everyday communication.
EXTRACTS FROM RECORDS
OF DISCUSSIONS IN FOCUS GROUPS
Т: “When you send a child to school, you know that there are
no... institutes... in the Crimean Tatar language – this makes it
unnecessary”.
Т: “Today, there is no higher educational establishment in Crimea
where one could study in the Crimean Tatar language. I realise that
this problem cannot be solved within a year or two but there must be
a state policy aimed at gradual solution of the problem”.
144 Crimea: people, problems, prospects… p.26.
145 Third Report of Ukraine on implementation of the Framework Convention …
146 ARC Committee for Deportees: at least 10-12 more Crimean Tatar schools should be opened in Crimea. – UNIAN, May 28, 2008.
147 Ibid.
148 “In 2008, the Ministry of Education and Science of Ukraine issued for Crimean Tatar general educational establishments textbooks of the Crimean Tatar
language and literature for pupils of the 8th form, translated into Crimean Tatar textbooks of Ukraine’s history, world history, algebra, geometry, biology, physics,
chemistry, physical geography, Ukrainian-Crimean Tatar and Crimean Tatar-Ukrainian terminological dictionaries. They also developed textbooks of the Crimean
Tatar language and literature for pupils of the 9th form and educational programmes for pupils of the 10th-12th forms of specialised schools”. See: Third Report
of Ukraine on implementation of the Framework Convention …, p.66.
149 Ibid., p.67
150 In Crimean higher educational establishments, only 5% of disciplines are taught in the Ukrainian language. See: I.Vakarchuk: Crimean higher educational
establishments do not respect Ukrainian language. – “Novyi Region” Information Agency, http://new-region-2.livejournal.com/36359008
2.4. DISPARITIES IN THE EXERCISE OF SOCIOCULTURAL
RIGHTS AND NEEDS IN CRIMEA
The nature of inter-ethnic relations in Crimea greatly
depends on the confidence of the main socio-cultural
groups in their ability to preserve/revive and leave to
descendants their identity, language, culture, traditions.
If this possibility seems doubtful, there arises a feeling
of estrangement of a group from Ukrainian and/or local
society, and it looks for a way out, including beyond the
constitutional framework of Ukraine.
Educational needs
The ability of meeting educational needs is an important
factor influencing social feelings of citizens, ensuring
preservation of their national and ethnic originality.
According to the results of public opinion polls, residents
of the Crimea rather critically assess the ability of getting
education in the mother language, with Russians and
Crimean Tatars feeling less satisfied than Ukrainians144.
The actual provision of the right of the Crimean
residents to education in native language is witnessed
by statistic data (Table “Figures of study in different
languages at Crimean educational establishments”)145.
Figures of study in different languages at Crimean
educational establishments
Type of educational
establishment
Total
number
of pupils/
students
Study in the
Ukrainian
language
Study in the
Russian
language
Study in the
Crimean
Tatar
language
General 177,863 12,860
(7.2%)
159,359
(89.6%)
5,644
(3.2%)
Evening 5,916 – 5,818
(98.3%)
98
(1.7%)
Higher educational
establishments of І-ІІ
accreditation levels
8,600 348
(4%)
8,252
(96%)
–
Higher educational
establishments of ІІІ-IV
accreditation levels
58,981 6,170
(10.5%)
52,811
(89.5%)
–
Total 251,360 19,378
(7.7%)
226,240
(90%)
5,742
(2.3%)
The problems that immediately influence the exercise
of rights and needs of Crimean Tatars in study in the native
language include disparities in the number of educational
establishments, lack of textbooks and poor quality of
pedagogical training.
In particular, the Chairman of the Republican Committee
for Affairs of Nationalities and Deported Persons S.Saliev
said in May 2008, that in order to meet the general
educational needs of Crimean Tatars, 10-12 schools with
the Crimean Tatar language of study should be built and
15-20 schools should be overhauled and expanded in the
near future146. The main obstacle for that is presented by
the lack of budget funds, caused by the absence of political
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 57
FACTORS INFLUENCING THE SITUATION IN CRIMEA
151 See subsection 2.1 of the Analytical Report.
152 Resolution of the Verkhovna Rada of the AR of Crimea No.856 of March 17, 2003
153 Unless specified otherwise, documents of the Verkhovna Rada of the AR of Crimea are listed in the order of passage.
154 Resolution “On Appointment of Republican (Local) Consultative Referendum on the Initiative of Ukrainian Citizens Permanently Living in the AR of Crimea”
No.1578 of February 22, 2006.
155 Resolution “On Progress of Implementation of the Verkhovna Rada of the AR of Crimea Resolution of April 15, 1998 No.1505 “On Support for Functioning
of the Official, Russian and Other Languages in the AR of Crimea” No.214 of October 18, 2006, notes that “over the past eight years, the stand of the official
language, actively used in all sectors of public life, substantially strengthened”. Meanwhile, it noted “neglect by state servants, especially employed in bodies of
central subordination”, of Resolution 1998, which “results in regular and unjustified violations of rights of the majority of population of the republic, for which
Russian is the native language”. Those violations were seen in the use of the official language in pharmacology, notary services, judiciary, trade, advertising, on
radio and TV, in the activity of law-enforcement bodies, even in education. The text of the Resolution leaves an impression that the Ukrainian language in Crimea
drove Russian out in all domains, which is not true.
156 Resolution “On Progress of Implementation of the Verkhovna Rada of the AR of Crimea Resolutions on Issues of Use of Official, Russian and Other
Languages in ARof Crimea” No.391 of March 22, 2007.
157 Annexes to resolutions No.214 and No.391.
158 Resolution “On Amendment of the Verkhovna Rada of the AR of Crimea Resolution of March 22, 2007 No.391 “On Progress of Implementation of the
Supreme Council of the Autonomous Republic of Crimea Resolutions on Issues of Use of Official, Russian and Other Languages in AR of Crimea” No.694 of
December 19, 2007. The Plan of Measures for 2009-2010 was approved by the Council of Ministers’ Resolution No.108 of March 3, 2009. By the way, only three
items of the plan envisaged measures that technically could not be implemented within set terms: preparation and publication of a 10-volume collection of works
by classics of the Crimean Tatar literature; unification of orthographic and orthoepic norms of the Crimean Tatar language; integrated scientific expeditions and
field studies for collection of Crimean Tatar folklore and dialectological material, socio-linguistic study of the Crimean Tatar language in Crimea.
159 Decision “On Appeal to the Verkhovna Rada of Ukraine, Cabinet of Ministers of Ukraine on the Need of Conduct of External Independent Evaluation of
Progress in Studies of Graduates of Educational Establishments of the AR of Crimea in the Languages of Study” No.905 of June 18, 2008; “On Provision of
Orderly Conduct of External Independent Evaluation of Progress in Studies of Graduates of Educational Establishments of the System of General Secondary
Education of the AR of Crimea” No.1126 of February 18, 2009.
160 Resolution “On Draft Law of Ukraine “On Amendment of the Law of Ukraine “On Television and Radio Broadcasting” No.3963 of September 17, 2008.
• guarantee of the right of citizens to the use of the
official, Russian and other national languages in all
sectors of public life in the AR of Crimea155;
• approval of a plan of annual measures at free
development and use of the Russian language in
the fields of education and culture in the AR of
Crimea in 2007-2010 and its budget. Local selfgovernment
bodies and district state administrations
were advised to work out and approve plans of
similar measures for the same term and annually
allocate funds for those purposes during local
budgeting156;
• amendment of a number of Ukrainian laws for actual
introduction of bilingualism in the judiciary, notary
services, registration of family status, healthcare
and advertising, documentation on labour safety,
place names, etc.157;
• planning and approval of measures at development
and use of the Crimean Tatar language in the AR of
Crimea in 2008-2010 with “funding at the expense
of funds allocated to socio-cultural development
in the Programme of Amenities for and Socio-
Cultural Development of Deported Persons in the
AR of Crimea for 2006-2010, and other sources of
funding envisaged by the effective legislation”158;
• indefinite postponement of introduction of
independent testing in the official language in
Crimea159;
• permission for TV and radio companies to
independently, in line with the programme concept,
decide the hours for broadcasting in the Ukrainian
language, no less than 51% of the total daily air
(pursuant to the Law “On Television and Radio
Broadcasting” – 75%)160;
• recognition of unconstitutionality of the requirement
of adaptation of foreign programmes retransmitted
Therefore, it may be assumed that the worst
situation with satisfaction of the need for education in
the native language is observed in the Crimean Tatar
community, the best – in the Slavic (mainly – Russians
and Russified Ukrainians). It would be logical to assume
therefore that the local authorities should make efforts
to remove disparities in the guarantee of one of the
constitutional rights of citizens.
However, analysis of regulatory acts of the supreme
representative body of the autonomy shows that it
concentrated on an entirely different domain. The
majority of resolutions, decisions and appeals of Crimean
Parliament in 2004-2009 in one or another way dealing
with inter-ethnic problems and devoted to the language
issue mainly pursued protection and development of the
Russian language – not only in the autonomy but in the
whole of Ukraine151.
The language situation in the autonomy at the beginning
of 2004 is described in the Programme of Development
and Functioning of the Ukrainian Language in the AR
of Crimea for 2004-2010152: “The Ukrainian language
is assigned a key role in nation-building. Meanwhile, its
proper development has not been ensured in the recent
years. The Ukrainian language, as official, has not become
sufficiently spread yet in all functional domains on the
territory of the AR of Crimea. Not everything has been
done for full-scale introduction of the Ukrainian language
in all sectors of public life”. The thrust of the abovementioned
resolutions passed in the subsequent years is
entirely inconsistent with this conclusion.
The key measures suggested by those regulatory acts
included153:
• appointment of a republican (local) consultative
referendum on the initiative of Ukrainian citizens
permanently living in the AR of Crimea, with the
question “Do you stand for the status of the second
official language for the Russian language?”154;
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CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
citizens to get education in the native language. Chairman
of the Standing Commission of the Verkhovna Rada of the
AR of Crimea for Science and Education А.Zhylin said
that the Ministry of Education of Ukraine Order destroyed
school education in national languages, and the Minister
of Education and Science of Ukraine I.Vakarchuk should
resign165. According to the Minister of Education of the
AR of Crimea V.Lavrov, Crimea “left to pupils and parents
the right of choice of the language of study in general and
in separate subjects”, actually making clear that Crimean
schools were allowed not to follow the Ministry of Education
Order on wider use of the Ukrainian language at schools166.
Such reaction of those officials looks quite natural, given
that S.Tsekov heads the Russian Community of Crimea,
A.Zhylin is his deputy, V.Lavrov – a CPU member. The
Order was also criticised by the Association of Crimean
Tatar Education Workers “Maarifchi”. Its statement said
that the planned measures would have a negative effect on
teaching in native languages. According to “Maarifchi”,
the Order undermined the roots of the Crimean Tatar
language, reborn in the historic Motherland. In the end,
the statement demanded “restoration on the territory
Crimea of the official status of the Crimean Tatar language
and measures guaranteeing development of education in
the Crimean Tatar language as a subsystem in the single
system of education of the AR of Crimea and Ukraine”167.
Parliament of the autonomy practically responded to
the Ministry of Education Order with decisions noting the
inadmissibility of performance of the Ministry’s orders168.
Need of preservation/restoration
of historic memory
The identity of any social group (from a political nation
to an ethnic or confessional community) rests on historic
memory, envisaging some interpretation of historic events and
processes, a pantheon of heroes and prominent personalities,
assessment of historic figures, ideas of enemies and allies, and
so on. Respectively, a stable group identity requires preservation
(restoration) and continuous actualisation of historic memory,
materialised in the totality of objects of symbolic value – texts,
monuments, memorial places, place names, etc.
On the other hand, historic memory belongs to the
value structures of public and individual consciousness, and
therefore, largely motivates social behaviour of a group and
its separate representatives. So, satisfaction of the right of
social groups to preservation of their historic memory is
critical for relations among them and for the integrity of
entire society.
Analysis of the Crimean situation from this viewpoint
shows that the autonomy in fact witnesses competition between
the Slavic and Crimean Tatar communities, in particular, for
symbolic values and historic roots on the peninsula.
161 Resolution “On Constitutional Inquiry of Correspondence to the Constitution of Ukraine (Constitutionality) of Parts One and Two, Article 42 of the Law Ukraine
of December 21, 1993 No.3759 “On Television and Radio Broadcasting” No.1042 of November 19, 2008.
162 Approved by Resolution No.1138 of February 18, 2009.
163 Decision No.1207 of April 22, 2009.
164 Resolution “On Measures at Support for the Russian Language in the Field of Education in the AR of Crimea” No.1248 of May 20, 2009.
165 Crimean politicians and pedagogues are indignant with orders from Ivan Vakarchuk. – Press Service of the Russian Community of Crimea, August 8, 2008,
http://www.ruscrimea.ru/news.php?point=123
166 Volkova A. Crimean Ministry of Education allowed teachers not to follow Kyiv’s order on Ukrainisation of schools. – “Krym-Novosti” Information Agency,
August 27, 2008, http://from.crimea.ua/obshhestvo/minobraz-kryma-razreshil-uchitelyam-ne-vypolnyat-kievskij-prikaz-ob-ukrainizacii-shkol
167 Khalilova L. Notorious Order of Ministry of Education violates pupils’ rights. – Web Site of Crimean Youth, http://www.crimean.org/crimea/crim_news.
asp?NewsID=7921
168 Decision “On Use of Languages at Organisation of Educational Process at Educational Establishments of the AR of Crimea” No.962 of September 17, 2008.
in Ukraine to the requirements of the Ukrainian
legislation, since, according to the authors, such
adaptation presents a form of censorship161;
• approval of a Comprehensive Plan of Annual
Measures at Development of the Russian culture,
use of the Russian language, maintenance of
Russian educational and cultural-historic sites and
facilities in the AR of Crimea for 2009-2015162;
• obstruction of the Law “On Concept of Official
Language Policy of Ukraine” and “On Official
Language and Languages of National Minorities
of Ukraine”, since Crimean MPs believe that they
overly expand the sphere of use of the official
language at the expense of Russian and other
languages of national minorities163;
• an increase in the number of academic hours allocated
to the Russian language and literature in general
educational establishments of the AR of Crimea, and a
demand “to provide for… placement of information...
in the Russian language… in all educational
establishments...”. Since this applies to all educational
establishments, those steps may be seen as Russification
of schools where teaching is conducted in the official
language or languages of national minorities164.
The situation in the language sector was aggravating
with every step of the Crimean authorities in response
to Kyiv’s. Another peak occurred after the Ministry of
Education and Science of Ukraine Order “On Approval of
Branch Programme of Improvement of Study of Ukrainian
Language in General Educational Establishments with Study
in Languages of National Minorities for 2008-2011” No.461
of May 26, 2008. In particular, the Programme envisaged, for
preparation of external independent evaluation of progress
in studies of graduates of educational establishments
studying in the languages of national minorities, to increase
the number of academic hours allocated to the Ukrainian
literature in senior classes and to introduce bilingual study
of Ukraine’s history and geography. Junior classes (2-4)
were to add academic hours for the Ukrainian language,
others – to introduce bilingual study of Ukraine’s history,
geography, maths. It was also planned to fully transfer to the
Ukrainian language study of the history of Ukraine from the
6th form, geography – from the 7th. Later on, it envisaged
gradual transition to teaching a number of subjects (history
of Ukraine, geography of Ukraine, labour training, defence
of Motherland, etc.) in the Ukrainian language.
The Crimean authorities harshly responded to the Order.
In particular, First Deputy Chairman of the Verkhovna Rada
of the AR of Crimea S.Tsekov said that the Order broke
rights of citizens provided by the Constitution of Ukraine,
and suggested that the autonomy’s Parliament should pass a
resolution in defence of the constitutional right of Ukraine’s
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FACTORS INFLUENCING THE SITUATION IN CRIMEA
169 Abdullaev I. Taraktash tragedy. – “Golos Kryma”. September 12, 2008, http://www.goloskrima.com/?p=884
170 Statement by Press Service of Simferopol and Crimean Eparchy of UOC. October 10, 2008. – Web site of Simferopol and Crimean Eparchy, http://www.
crimea.orthodoxy.su/Chronica/2008-10-10-Zayavleniye
171 See: US Ambassador visited would-be Grand Mosque Cuma Camii. – Maidan information web site, http://maidan.org.ua/static/newskrym/1232642378
172 Bobrov A. Cross-cutting in Crimea. – Russkiy Dom information web site, http://www.russdom.ru/2005/200508i/20050832
173 Monument to Russian Empress Catherine the Great in Simferopol, Crimea, will be erected for budget funds. – “Krymskiy Analitik” information web site,
http://www.agatov.com/content/view/1353/63
174 Clashes in Bahchysaray on July 8 and August 12, 2006, involved 300 persons on each side. See: Bahchysaray events are the result of distortions and
mistakes in inter-ethnic relations – Kunitsyn. – UNIAN, August 17, 2006. Meanwhile, thanks to interference of representatives of political forces in the conflict,
in particular, leader of the Crimean Republican Organisation of Party “Russian Bloc”, member of the Verkhovna Rada of the AR of Crimea O.Rodyvilov and
representatives of the Russian Community of Bahchysaray, it was presented as national and shown like that by some Ukrainian and Russian TV channels. See:
Regionals in the Crimean leadership discredited Yanukovych more than his opponents. – UNIAN, August 13, 2006.
That is why the issues of return, restoration and building
of religious and memorial structures, erection of religious
symbols and monuments to prominent figures of the
past, return of historic names to populated localities, etc.
are so important for Crimea. What is seen as restoration
of historic justice or exercise of rights to satisfaction of
religious needs by one community is sometimes presented
by another as an act of aggression, humiliation of its
national and/or religious feelings. A showy example of
controversy in assessments of historic events and figures
is presented by polemics about the person of Parthenius
of Kiziltash (Insert “Actualisation of historic events and
figures in Crimea”).
ACTUALISATION OF HISTORIC EVENTS
AND FIGURES IN CRIMEA
Parthenius of Kiziltash – Hegumen of Kiziltash Monastery in the
Eastern Crimea, murdered in 1866, according to then official version,
by local residents – Crimean Tatars, as he did not let them illegally cut
the surrounding forest and graze cattle on monastery pastures.
Instead, representatives of the Crimean Tatar community
believe that the Crimean Tatars accused of the Hegumen’s murder
and sentenced to death were innocent victims of slander on the
part of police informers, and their trial was a political process. In
1998, the Crimean Tatar community built a monument to them in
the village of Dachne (Taraktash) of Sudakskiy district. On the other
hand, in 2000, Bishop’s Council of the Russian Orthodox Church
(ROC) sanctified Parthenius of Kiziltash as a righteous martyr. In
2008, several issues of the newspapers “Golos Kryma” published
an article by I.Abdullaev “Taraktash tragedy”. It negatively assessed
the figure of Hegumen Parthenius considering it in a wider context
of the ROC activity that “in mid-XIX century, with active support
from colonial administration of Crimea, began another stage of the
policy of seizure and appropriation of old Crimean Christian holy
places, in that way laying claim to the more than millennium-old
spiritual, historic and cultural heritage of indigenous peoples of the
peninsula evicted in 1778 - Tats and Urums (Christians), Crimean
Tatars (Muslims), Karaites”169.
In response to that publication, the Press Service of the
Simferopol and Crimean Eparchy of UOC issued a statement
saying that allegations of І.Abdullaev “cause moral sufferings to all
faithful Christians of Ukraine and offend their religious feelings”170.
The polemic seems not to be over yet.
Such misunderstanding by the communities of the
needs and interests of each other stems not only from
historic stereotypes but from present-day circumstances –
in particular, actual inequality in the communities’ ability
to satisfy their needs of preservation of historic memory as
an integral attribute of their identity.
Furthermore, it may be argued that the authorities
openly support claims of one community – Slavs – to
symbolic values of Crimea. This is especially manifested
in the support for Orthodoxy, represented by UOC, vs.
restoration of Muslim shrines in Crimea.
The situation with construction of the memorial Grand
Mosque (Cuma Camii) in Simferopol is demonstrative
here. In 2004, the city Muslim community requested the
City Council to allot for construction of the mosque a part
of “Vorontsovka” park (Victory Square) where Crimean
Tatars were brought in May 1944 for further deportation
beyond Crimea. The City Council that previously
transferred that square to the UOC community for
restoration of the Cathedral of Saint Prince Alexander of
Neva refused the Muslim community under the pretext of a
ban on construction in the city’s green areas. They allotted
a plot for the construction of the mosque on the outskirts
of the city, but in 2007, the City Council cancelled its own
decision of allocation and qualified fencing of the site and
keeping construction materials there as squatting171.
Demonstrative in this context was the statement of the
Chairman of the Republican CPU Committee L.Hrach
made in Simferopol at a solemn meeting on the occasion of
celebration of the Victory Day in 2005: “Those who lift hand
against our shrines, including Orthodoxy, should know: we
are more than many, and nobody will ever conquer us”172.
Monuments symbolising the Crimean past in the
Russian empire are restored and erected with assistance
from the authorities. For instance, in June, 2008,
a monument to Empress Catherine ІІ was inaugurated in
Sevastopol; in April 2009, events related with restoration
of a monument to Catherine ІІ were held in Simferopol. In
this connection, First Deputy Chairman of the Verkhovna
Rada of the AR of Crimea, leader of the Russian community
of Crimea S.Tsekov submitted to Crimean Parliament a
draft resolution of restoration of that monument and annual
arrangement of Crimean-wide festivities devoted to the
Manifest of Catherine ІІ “On Admission of the Crimean
Peninsula, Island of Taman and the Whole Side of Kuban
under the Russian State” on April 19173.
Those events, along with others, prompt radicalisation
of the spirits and stand of both dominant communities and
cause conflicts among their representatives, sometimes
growing into violent clashes. The widest publicised
conflicts occurred:
• in Bahchysaray in 2001 and 2004 – for the disputed
territory claimed by the Assumption Monastery
and Muslims for restoration of an old spiritual
educational establishment – Zinjirli Madrasah;
in 2006 – for the territory of a local market and
removal of market structures from the territory of
Azizler Muslim cemetery174;
• in Feodosiya in 2006 – in connection with the
erection of a monument to Apostle Andrew
the First-Called – between Crimean Tatars, on one
hand, and Cossacks and representatives of pro-
Russian organisations, on the other.
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The educational sector in the Crimean is entirely
dominated by the Russian language. The official language
is actually marginalised, due to the actual absence of
public support for the development of education in
the Ukrainian language. Education in the Crimean
Tatar language, despite public support and demand, is
developing too slowly and disproportionately.
The attitude of the Crimean authorities to the
official and two most spoken in Crimea languages may
be described as follows:
the official language – forced, often formal, support
and assistance; Crimean Tatar – formal and limited
assistance, a tribute to political correctness rather
than the desire to solve a real difficult problem of
preservation and development of the Crimean Tatar
language that does not have a single literary standard
or alphabet; Russian – full assistance and protection,
first of all, from wider use of the Ukrainian language.
Rulings actually reversing decisions of central
authorities in the autonomy may also be viewed in the
context of emergence of a separate Crimean identity
intended to oppose Crimea to Ukraine politically and
culturally.
The acutest contradictions between the Crimean
Tatar and Slavic socio-cultural groups are observed in
the field of symbolic values, and exactly there, rivalry
can have the gravest consequences.
2.5. TRENDS OF ETHNIC AND RELIGIOUS
INTOLERANCE IN THE ACTIVITY OF
CRIMEAN PUBLIC ORGANISATIONS
Out of 589 registered and 205 legalised by notice
Crimean public organisations, local branches of all-
Ukrainian and international public organisations, more
than 100 were established on ethnic grounds. We will focus
on public associations of representatives of the peoples
claiming domination or active involvement in sociopolitical
life and management of affairs in the autonomy.
Collision of their interests is the gravest, influencing not
only the present situation but the future of Crimea176.
Ukrainian public organisations are poorly represented
in the Crimean socio-political space. They do not make
a force that could noticeably influence the socio-political
situation in the Crimea177. More or less active are only the
Crimean regional organisation of “People’s Movement of
Ukraine” (Rukh) and the Crimean republican organisation
of the All-Ukrainian Association “Svoboda”. Therefore,
more attention is paid to pro-Russian (Slavic) and Crimean
Tatar public associations that, according to public opinion
polls and monitoring of socio-political activity, enjoy
the greatest influence in Crimea (Annex 3 “Crimean
organisations exerting the greatest influence on inter-ethnic
and inter-confessional relations”, p.66).
175 Crimean Tatars erect on the peninsula signs with Crimean Tatar names of cities. – “Zavtra” media group, http://www.zavtra.com.ua/news/1/121735
176 Less attention is paid to organisations of representatives of peoples of the former USSR living in Crimea (Azeris, Georgians, Lithuanians, Estonians, etc.)
and indigenous peoples of Crimea (Karaites and Krymchaks). Those organisations are small, their interests lie beyond politics, and they exert little influence
on inter-ethnic relations. The public influence of organisations of representatives of former deported national groups (Bulgarians, Armenians, Greeks, Germans)
also does not go beyond their national communities and has no political dimension.
177 This conclusion coincides with the opinion of the Committee for Affairs of Nationalities and Deported Persons of the AR of Crimea, that representatives of
the Ukrainian public “…are insufficiently involved in the inter-ethnic dialogues”, and as a result, “…the second largest ethnos actually does not influence the
development of inter-ethnic relations in Crimea”. See: Information on inter-ethnic relations in AR of Crimea. – Internet portal “AR of Crimea”, http://comnational.
crimea-portal.gov.ua
Use of different place names by the Slavic and Crimean
Tatar communities poses a separate problem, since every
place name involves some interpretation of the history of
the concerned place (settlement). The very name “Tavrida”
(Tavrian province) given to Crimea after its annexation by
the Russian Empire appealed, bypassing Crimean Tatars,
to the Greek cultural and historic heritage of Crimea,
claimed by tsarist Russia as the successor of the Byzantine
Empire.
Today, the Slavic community is using names that
appeared in Crimea after the deportation of Crimean Tatars
(traditional use, even in the Soviet times, of such Crimean
Tatar name as Koktebel instead of official Planerskoe was
an exception, along with some Crimean Tatar or Turkized
Greek place names left in Crimea).
Instead, Crimean Tatars in media publications and
official documents of their public and political organisations
use old, mainly Crimean Tatar place names, and not
only in case of relatively big cities, such as Akemesjit
(Simferopol), Kafa (Feodosiya), Gezlev (Yevpatoriya),
Karasubazar (Bilogirsk), but also mentioning former
Crimean Tatar villages and settlements populated by
Russians and Ukrainians after World War II. Therefore,
Crimean Tatars are made to believe that Crimea is their
historic land and will again be the one some day.
The demand of restoration of Crimean Tatar place
names in Crimea was again put forwards at the mourning
meeting in Simferopol on the occasion of the 65th
anniversary of deportation, where the Majlis leader
M.Dzhemilev called upon Crimean Tatars to collect
money and erect at approaches to every locality in
Crimea signs with historic names. At that, he “warned the
anti-Tatar-minded part of the Crimean population against
opposing efforts of Crimean Tatars at erection of road
signs with historic place names”, hinting that in that case,
Russian-language signs could be destroyed.
His first deputy R.Chubarov said that mass restoration
of historic place names might begin as soon as within a
month or two in all places of residence of Crimean Tatars.
He stressed that the campaign was prompted by inaction
of the authorities, and would not be accompanied with
liquidation of Russian place names: “We will begin to
restore our historic names. If the authorities do not want to
do this, we will. We will not demolish anything, including
names, but there will be centuries-old names nearby
specific of Crimea, reflecting the Crimean Tatar culture,
traditions and religion”175.
Although the main socio-cultural groups of
Crimea now recognise the Russian language as
a language of inter-ethnic communication in the
autonomy, they are not united on other aspects of the
language issue.
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178 For more detail see: web site of the “Russian Movement of Ukraine” and Party “Russian Bloc” – http://www.rblok.org.ua/index.php?option=com_content&t
ask=view&id=12&Itemid=26
179 We declare indefinite campaign “Ukraine without Crimea”. – Web site “Russian Popular Assembly of Sevastopol”, http://sevrus.narod.ru
180 Fighting half-decay. Kyiv getting ready to try Russian patriots of Crimea. – Lenta.ru, January 22, 2009, http://www.lenta.ru/articles/2009/01/22/skr
181 “Sevastopol-Crimea-Russia”: Trial of invalidation of Constitution of the AR of Crimea held in Sevastopol. – “Novyi Region”, http://www.nr2.ru/ua/225923
Pro-Russian organisations
The most active pro-Russian organisations are the
Russian Community of Crimea (RCC), People’s Front
“Sevastopol-Crimea-Russia”, National Front “Sevastopol-
Crimea-Russia”, Crimean regional organisation of the
Progressive Socialist Party of Ukraine (PSPU) and Party
“Russian Bloc”178, Crimean division of the Eurasian Union
of Youth (EUY), “Proryv” organisation.
They target the Slavic community, to instil in the public
consciousness of that ethno-social group a set of ideas: of
historically reasoned and legitimate belonging of Crimea
Russia and its accidental, short-timed stay in Ukraine; of
Crimea as an integral part of the Russian socio-cultural
and geopolitical space; of inadmissibility of spread of the
Ukrainian language and culture in Crimea. In line with
those goals, the Slavic community of Crimea, feeling
affiliation with that space and valuing ties with Russia,
should feel the only rightful and legitimate master of the
Crimean land. So, any attempts of Ukraine to spread its
language and cultural presence in Crimea and Crimean
Tatar demands of restoration of their rights are viewed
by the Slavic community of the autonomy as illegitimate
encroachment on the rights of the Slavic community,
its traditions, way of life, and meet a strong negative
reaction.
Those ideas are disseminated through various forms
of activity of public organisations and their activists:
seminars, round-tables, press conferences; distribution
of propagandist materials; participation in the work of
representative authorities, first of all, the Verkhovna Rada
of the AR of Crimea, and executive bodies; interaction with
Russian public and political organisations and authorities;
mass events (meetings, demonstrations, pickets) for
propaganda of their ideas among residents of Crimean
cities, first of all, Simferopol; opposition to decisions of
Ukrainian authorities contrary to those ideas, pressure
on local authorities, e.g., the Verkhovna Rada of the AR
of Crimea, if they, in the opinion of leaders and activists
of the mentioned organisations, demonstrate inconsistency
or hesitation in the attainment of those ideas or oppose
their attainment.
People’s Front “Sevastopol-Crimea-Russia” on
January 31, 2007, together with EUY held a meeting near
the Verkhovna Rada of the AR of Crimea, demanding that
Crimean MPs pass a declaration of reunification of Crimea
with Russia, removal of “occupational”, i.e., Ukrainian
state symbols from the building of Crimean Parliament and
obliging local authorities and their subordinate institutions
to hang up state symbols of the Russian Federation.
In February, 2007, the People’s Front jointly with the
Crimean division of EUY announced an indefinite human
rights campaign “Ukraine without Crimea” aimed at “an
end to the annexation of the peninsula by Ukraine and
return of Crimea and Sevastopol under the jurisdiction of
the Russian Federation by legal means”179. The campaign
envisaged mass filing of administrative suits by the
Crimean residents to courts demanding that they oblige
the Verkhovna Rada of Ukraine to amend Ukraine’s
Constitution, removing Chapter 10 “AR of Crimea”
and mention of the AR of Crimea and Sevastopol from
its text. In case of refusal, it planned to appeal to the
ombudsman, international organisations whose member
Ukraine is, and international courts.
At the beginning of the campaign, they mentioned
resolutions of Russia’s State Duma “On Legal Assessment
of Decisions of Supreme Bodies of State Power of RSFSR
Changing the Status of Crimea, passed in 1954” of
May 21, 1992 and “On Status of Sevastopol” of July 9, 1993.
Those documents were produced by organisers of the
event as a legal argument backing stated claims.
On January 21, 2008, the Popular Front activists called
press conference “On non-implemented results of referendum
of January 20, 1991”, where they proposed that Crimea
goes to Russia in order not to appear in NATO together
with Ukraine. Following the press conference, the Security
Service of Ukraine initiated a criminal proceeding against
the Popular Front coordinator V.Podyachyi and leader of the
Russian Community of Yevpatoriya S.Klyuev under Article
110 of the Criminal Code of Ukraine – “encroachment on
territorial integrity of Ukraine”. The Security Service of
Ukraine head V.Nalyvaychenko said that the investigators
would request the court to impose a penalty of up to five
years of imprisonment upon the defendants180.
However, the prosecution did not bar V.Podyachyi
to continue his campaign that involved suits against the
Verkhovna Rada of the AR of Crimea and its Chairman
A.Hrytsenko for their refusal to cancel the 1998 Constitution
of the AR of Crimea “as contrary to the results of the
Crimean referendum of January 20, 1991”, and consider
the issue “of passage of a Declaration of reunification of
Crimea with Russia and an appeal to the Presidents of Russia
and Ukraine, governments of the Russian Federation and
Ukraine, the State Duma and Verkhovna Rada demanding
immediate talks of return of Crimea under the jurisdiction
of the Russian Federation”181.
Apart from the declared goal, the campaign was
evidently designed to prove that activists of the Popular
Front were trying to attain their objectives within the
legal framework of Ukraine, so, their prosecution was
groundless.
National Front (NF) “Sevastopol-Crimea-Russia”
held the campaign “Russian boycott of early elections”
in 2007, to organise boycott of extraordinary elections
of the Verkhovna Rada of Ukraine. It argued that no
parliamentary party in Ukraine was defending the interests
and rights of Russians, and subsequent elections would
not change the situation, so, it was senseless to take part
in them. Speaking at a press conference on October 3,
2007, the NF leader S.Shuvainikov said he was satisfied
with the results of the event since, in his words, some 10%
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use of funds allocated by the Moscow Government for
humanitarian activity of Russian organisations in the
Crimea, and RCC in general – of refusal from protection of
the interests of Russian residents of Crimea. The Popular
Front, with which the National Front has much common in
ideology and political goals, was termed as an organisation
fit for nothing that “has nothing positive”.
NF “Sevastopol-Crimea-Russia” actually opposed
itself to other Crimean pro-Russian associations and
organisations. According to S.Shuvainikov, “there is no
political force today pursuing a Russian policy in Crimea,
that is why Russian people need their representative
body – an analogue of Crimean Tatar Kurultay and its
executive body Majlis. It is not a public organisation,
not a political party but a structure that will take
into account the experience of Majlis and Kurultay
defending the rights of their people”184.
In response, opponents called NF a clone of the
People’s Front, and one of the leaders of the latter, head of
the Russian Community of Kerch O.Tkachenko, said that
“the National Front was established by special services of
Ukraine as a political-technological counterbalance to the
truly People’s Front “Sevastopol-Crimea-Russia”.
In connection with the above-mentioned boycott of
early elections-2007, the Popular Front leader V.Podyachyi
described the NF activity as follows: “A joint project of
the Presidential Secretariat and the Security Service of
Ukraine titled “Russian boycott of election of Ukrainian
oligarch masters” let Ukraine have one foot in NATO!”185.
The above-mentioned statement by N.Vitrenko of the
possibility of a referendum about cessation of Crimea from
Ukraine was criticised by one of the People’s Front leaders
as indirect recognition of stay of Crimea in Ukraine’s legal
framework.
Among the reasons for conflicts among Crimean pro-
Russian organisations and their inability to unite, experts
mention rivalry for funds coming from Russia, laying the
blame for vanity of all attempts of unification first of all on
the “the Kremlin politicians, unwilling to understand that
grey funding has long turned patriotism into business on
national feelings”186.
However, despite serious differences and confrontation,
Russian public and political organisations of Crimea
and their leaders can display solidarity under certain
circumstances. For instance, the Popular Front activists
V.Podyachyi and S.Klyuev, when subjected to criminal
prosecution, found a defender in the person of Deputy
Chairman of the Verkhovna Rada of the AR of Crimea and
RCC leader S.Tsekov, although the Verkhovna Rada, RCC
and Party of Regions, whose member S.Tsekov is, were
strongly criticised by the People’s Front. Nevertheless,
S.Tsekov turned to ombudsman N.Karpachova actually
acquitting S.Klyuev and V.Podyachyi and requesting her
to personally monitor their case187.
182 “Sevastopol-Crimea-Russia” Front to blame for low return. – Crimean online news service, http://news.allcrimea.net/comments/1191419719
183 “Sevastopol-Crimea-Russia” National Front leader wants to create Russian Party of Ukraine within a year. – Crimean News Agency, http://www.start.crimea.ua
184 Tyshchenko Yu., Khalilov R., Kapustin M. Socio-political processes in the AR of Crimea: key trends. – Kyiv, 2008, p.70.
185 Ibid, pp.64-70.
186 Sergeev G. Russian linguists will be turned… politicians. – “Pervaya Krymskaya”, June 5, 2009.
187 S.Tsekov asks Verkhovna Rada of Ukraine Human Rights Commissioner N.Karpachova to personally monitor criminal case of Crimeans accused of separatism. –
Portal of Russian People of Ukraine, http://www.ruscrimea.ru/news.php?point=359
of Crimeans boycotted the elections, and due to the low
return, the Party of Regions lost votes in Crimea. He
warned that NF was planning to boycott all subsequent
elections until a true “Russian party” appears in Ukraine,
since “today, no political party is willing to recognise
the legal status of the Russian people..., all are trying to
forcibly assimilate Russian people in the constitutional
notion of the “Ukrainian people”182. At the end of 2007
S.Shuvainikov announced his intention to establish the
Russian Party of Ukraine183.
Activists of the Crimean regional organisation of
PSPU in July 2008, took an active part in protests against
a joint Ukrainian-NATO military exercise in Crimea. On
October 23, 2008, they jointly with activists of RCC,
Russian Bloc party and other organisations held a meeting
in Simferopol protesting against the National Council of
Ukraine for Television and Radio Broadcasting decision
to ban from November 1 of that year transmission of
Russian TV channels not adapted to the requirements of
the Ukrainian legislation in cable TV networks.
In May 2009, PSPU leader N.Vitrenko announced
the possibility of calling a referendum about secession of
Crimea from Ukraine and joining Russia, if the Verkhovna
Rada of Ukraine passed a decision terminating the powers
of Sevastopol City Council in response to its decision of
May 19, 2009, obliging all city schools to teach in the
Russian language.
Crimean division of EUY took part in anti-NATO
events in Mykolayiv and Feodosiya in 2006, held a meeting
in Sevastopol demanding withdrawal of the Ukrainian
Navy from the Crimea in March 2007.
“Proryv’s” leaders in 2006 demanded from Russia’s
President V.Putin denunciation of the Russian-Ukrainian
“Big Treaty” signed in 1997. Later, the Sevastopol Business
Court passed a ruling banning “Proryv”. However, despite
the ban, “Proryv” remains active in Crimea, on a smaller
scale though.
By and large, pro-Russian youth organisations are
much more extremist and controlled by specific public and
political forces of the Russian Federation. This prompts
greater attention to them on the part of the Ukrainian lawenforcement
bodies.
However, the effectiveness of Crimean pro-Russian
organisations is impaired by their rivalry and mutual
defamation. For instance, RCC was repeatedly criticised
by NF “Sevastopol-Crimea-Russia”, and that organisation
itself was established as an alternative to RCC that,
according to one of the NF leaders S.Kompaniets, “is not
interested in reunification of Crimea and Sevastopol with
Russia, since it realises its own irrelevance, should such
reunification comes true”.
Yet in 2002 NF leader S.Shuvainikov made a number
of statements aimed at defamation of RCC head S.Tsekov,
accusing him of corruption, in particular, uncontrolled
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FACTORS INFLUENCING THE SITUATION IN CRIMEA
188 Obukhovskaya L. God and Russian language are with us. – “Krymskaya Pravda”, June 11, 2009.
189 Sergeev G. Russian linguists will be turned… politicians. – “Pervaya Krymskaya”, June 5-11, 2009.
190 For more detail see: Why repeat Crimean wars. – OBKOM, May 29, 2007, http://www.obkom.net.ua; Sevastopol confrontation. Cossacks of the Don announced
a march on Sevastopol. – Interfax, http://www.interfax-russia.ru/r/B/eventday/438.html?menu=5&id_issue=1208; From Toplu to Feodosiya. – web site Russkaya
Liniya, December 8, 2008, http://www.rusk.ru/st.php?idar=113565; Bohomolov O., Danylov O., Semyvolos I. Islam and policy of identities in Crimea: from
symbolic wars to admission of cultural variety. – Analytical report, Kyiv, 2009.
191 International Forum of Cossack Culture in Crimea. – All-Russian Monarchic Centre, June 6, 2007, http://www.monarchruss.org/index.php?option=com_con
tent&task=view&id=664&Itemid=30
192 Monument to Empress Catherine the Great in Sevastopol guarded by Cossacks. – “Novosti Sevastopolya”, July 8, 2008, http://sevastopol.su/news.
php?id=5349
Soon, the list of pro-Russian organisations may include
one more – all-Ukrainian human-rights organisation
“Russian-speaking Ukraine” (tentative name). The idea
of its creation was announced during the Third Festival
“Great Russian Word” recently held in the Crimean Livadia
palace. According to the festival’s organising committee
head S.Tsekov, the activity of the new organisation “will
focus on protection of rights of Russian and Russiancultural
citizens of Ukraine”188. Regarding the roots of that
idea, S.Tsekov said that “the initiative in the given case
was not Crimean”189.
Cossack associations make a separate group of Slavic
organisations. Among them, the greatest activity in the
recent years has been displayed by the Crimean Cossack
Union, the Association of Cossacks of the AR of Crimea
“Krymska Palanka”, the Union of Cossacks of Feodosiya
Region, “Sobol” Cossack Community.
The goals of Cossack associations somewhat differ from
those of the above-mentioned pro-Russian organisations.
While the latter have evidently political goals and pursue
integration of the Crimea – if not immediately in the Russian
state, than at least in the sphere of Russian geopolitical
influence, the goals of Cossacks include: maintenance in the
public consciousness of the idea of Crimea as an integral
part of the Russian spiritual, religious and cultural space;
protection of the Slavic population from “encroachments by
unorthodox” (first of all Muslims (Crimean Tatars)) on its
sanctuaries and land; assistance to the spread of religious
and memorial symbols related with the idea of unity of
Crimea and Russia in Crimea.
The main mechanisms of attainment of those goals
include: educational and enlightenment activity; public
events, including international; participation in mass events
of other pro-Russian organisations; direct opposition to
Crimean Tatars; safeguarding of political and religious
events; cooperation with Russian Cossack organisations,
first of all – the Union of Cossack Troops of Russia and
Abroad.
Actions of Cossacks in defence of memorial
sites or prevention of their establishment – guarding
monuments to Andrew the First-Called in Feodosiya
(2006) and Catherine ІІ in Sevastopol (2008), prevention
of installation of a memorial board in Hrafska Pier in
Sevastopol (2008) in honour of the 60th anniversary of the
Black Sea Fleet raising Ukrainian ensigns, escort of crossbearing
processions at sanctuaries of the Eastern Crimea
(since 2005) and other acts – well fit in the scheme of
the “wars of symbols” intended to make the territory of
residence of some ethnic group a space of symbolic value
and at the same time prevent creation or restoration of
symbolic values of other ethnic groups living on the same
territory190. Cossacks, too, are called to play the symbolic
role of Christian warriors, defenders of the Russian land
and Orthodox faith for the Slavic population of Crimea.
Evidently, the “Orthodox church” that allegedly needs
defence from Muslim (Crimean Tatar) extremists in this
case also means not a real religious institute but a national
symbol necessary for instilment of the Russian identity of
Crimea, its unbreakable connection with the Russian sociocultural
space. The image of Crimean Tatar “extremists”
also plays a symbolic role in this context, personifying
all negative the Russian mentality traditionally associates
with the Muslim world. For instance, the above-mentioned
report of the press service of the Union of Faithful Cossacks
about the monument to Apostle Andrew the First-Called
in Feodosiya says: “It is the monument from which
last year’s confrontation of Cossacks with miscreants
began”191. I.e., Crimean Tatar residents of Feodosiya
who at the beginning of June 2006 picketed construction
of the monument for religious reasons are presented as
“miscreants” – representatives of Islam historically hostile
to the Christian world.
Crimean Cossack organisations also have other
functions closely related with the above. In Crimea and
whole Ukraine, they present an outpost of the pro-Kremlin
part of Russian Cossacks united in the Union of Cossack
Troops of Russia and Abroad, and an important link of
Crimeans with the Russian socio-cultural and political
space. The activity of those organisations dealing with
inter-ethnic and inter-confessional relations in Crimea is
largely determined by their relations with the Union of
Cossack Troops of Russia and Abroad led by the Ataman
of the Great Army of the Don, Supreme Ataman of the
Union of Cossack Troops of Russia and Abroad, a member
of Russia’s State Duma and coordinator of the “United
Russia” Party for ties with Cossacks V.Vodolatsky.
The nature of relations between the Crimean and
Russian Cossacks is revealed by the following clauses
of V.Vodolatsky’s order on guarding the monument to
Catherine ІІ in Sevastopol in July 2008: “1. All structural
units of the Union of Cossack Troops of Russia and
Abroad form and detach peacekeeping Cossack teams to
Sevastopol to guard the monument to Catherine the Great.
2. Coordination of team actions rests with Ataman of the
Association of Cossacks of the AR of Crimea “Krymska
Palanka” military foreman S.N.Yurchenko”192.
Those relations are not sporadic but continuous, seen
in events regularly held in the Crimea, in particular:
ІІ International Forum of Cossack Culture (May 31 -
June 3, 2007), accompanied with laying of a memorial stone
in Simferopol in the place of the would-be monument to
Catherine ІІ and floral tribute in Feodosiya to the monument
to Apostle Andrew the First-Called; І International Cossack
Forum (June 12-14, 2008) on the occasion of celebration
of the Day of Russia (12 June) and 225th anniversary of
Sevastopol; another International Forum of Cossack
Culture is to take place in June 2009 in Poltava on the
occasion of the 300th anniversary of the Battle of Poltava.
V.Vodolatsky forbidden from Ukraine since 2008 will not
64 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CВRИIСMНEОAВNК SИOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
(representatives in those bodies are mainly nominated by
Majlis); participation in the work of consultative-advisory
bodies of the authorities (in particular, the Council of
Representatives of the Crimean Tatar people under the
President of Ukraine traditionally included representatives
of Majlis); educational, enlightenment, scientific research
and human rights activity; organisation of mass events
(meetings, demonstrations, pickets) both in Crimea and
in Kyiv; organisation of squatting of land plots with
subsequent legalisation of those acts; active cooperation
with international organisations (first of all, OSCE), public,
political and governmental structures of other countries
(first of all, Turkey).
Among Crimean Tatar public and political organisations,
considered potentially contentious may be the activity of
“Adalet”, “Avdet”, NMCT and “Milli Firka”.
• “Adalet” – due to the radicalism of some elements of its
ideology, emphasis on physical training of the organisation
members, association with paramilitary detachments of askers
in the public consciousness.
• “Avdet” – due to connection with Crimean Tatar squatting,
every time meeting tough reaction, sometimes – resistance
of the Slavic community. The possibility of radicalisation
of that organisation was confirmed by a statement of one of
coordinators of a picket near Ukraine’s Government organised
by “Avdet” (April 2009), R.Shaimardanov: “If Ukraine considers
problems of Crimean Tatars little important, we will make the
Crimean Tatar problem the main problem of Ukraine... We will
cut Ukraine’s road to the European Union”198.
• NMCT and “Milli Firka” – due to their pro-Russian orientation,
denial of legitimacy of Kurultay and Majlis, defamation of their
leadership. Although their activity is quite peaceful, it adds to
political disorientation of Crimean Tatars, promotes centrifugal
processes among them, stirs up anti-Ukrainian spirits.
Meanwhile, the activity of those organisations beyond
their national community is very limited, compared to
Slavic public and political and Cossack associations, and
much less aggressive. That is why their conflict potential
is considered to be much lower.
Crimean Tatar public and political organisations
also compete for ideological leadership and influence.
There are fundamental differences in the assessment
of the legitimacy of Majlis as the representative body
of the Crimean Tatar people (NMCT, “Milli Firka”).
Some ideological opposition to Majlis is demonstrated
by OCTNM, “Azatlyk”. Recently, “Avdet” has gained
popularity and influence in the Crimean Tatar community.
Majlis took a tough stand against NMCT – the Majlis
leadership terms NMCT members as “traitors” and
“provocateurs”, and the movement itself – as one of
“political organisations in due time created by the Soviet
KGB and opposed to the main Crimean Tatar national
movement”.
193 Ataman of the Don Cossacks barred from Cossack Forum in Poltava. – “Korrespondent”, January 5, 2009, http://korrespondent.net/ukraine/politics/700404
194 Cossacks appealed to the President, Verkhovna Rada, Cossacks and people of Ukraine in connection with the unstable situation in the Ukrainian state. –
Russians in Ukraine, May 8, 2009, http://www.rus.in.ua/news/1245
195 Hrach L. Crimean “knot”. – “Yedinoye Otechestvo”, http://www.otechestvo.org.ua/statyi/2004_02/st_24_02. Ethnic, inter-confessional and even intercivilisational
differences are on the rise in Crimea.
196 International Forum of Cossack Culture in Crimea…
197 Alongside, there are Crimean Tatar non-political organisations, for instance: League of Crimean Tatar Women, League of Crimean Tatar Lawyers INICIUM,
Crimean Human Rights Association “Arqadash”, Association of Crimean Tatar Education Workers “Maarifchi”, Society of Researches of History and Culture of
Crimean Tatars, Information-Educational Centre “Borazan”. By contrast to Slavic, they are directly involved in the political life of their people, for instance, create
election blocs or independently nominate candidates at election of Kurultay delegates.
198 Kapustin M. Majlis has got a rival. – “Sobytiya”, June 12, 2009.
be present at the forum, but he made its goal clear – to
pay tribute to the Russian-Ukrainian history, “for nobody
could repaint history the colours that may be to somebody’s
liking or not”193.
The trend of the Russian influence is witnessed by
the “Common appeal of Atamans of Military Cossack
associations of Russia and Ukraine to the President,
Verkhovna Rada, Cossacks and People of Ukraine” of
April 25, 2009, signed, in particular, by V.Vodolatsky,
V.Cherkashyn and S.Yurchenko: “We cannot quietly watch
rewriting and distortion of our common history, honouring
in Ukraine people and events that left a black trace not only
in the Russian and Ukrainian but in the World history...
We cannot stay indifferent, when the official authorities
of Ukraine support forces aimed against Russia, and in the
end, against the Ukrainian people”194.
The importance of the Cossack movement in Crimea
in the eyes of pro-Russian forces is witnessed by the words
of the Chairman of the Republican CPU Committee and
All-Ukrainian Association “Heirs of Bohdan Khmelnytskyi”
L.Hrach: “Today, the Black Sea Fleet and Cossacks are the
only factor keeping Crimean Tatars from large-scale radical
actions and implementation of the Kosovo scenario in Crimea.
Since the Ministry of Internal Affairs and the Security Service
of Ukraine do not effectively stop actions of Crimean Tatar
extremists, Cossacks remain the only force that does not
allow radicals to seize land and saw down crosses at Orthodox
cemeteries”195. One may add to that a phrase from a report by
the press service of the Union of Faithful Cossacks and the
Kyiv Monarchic Centre – an organisation cooperating with
Crimean and Russian Cossack associations: “They [Cossacks]
enjoy respect and love of the Slavic Orthodox population of
Crimea. Not once or twice – regularly do Cossacks defend
the Orthodox Church and people from Muslim extremists,
from attempts to make Crimea another Kosovo”196.
Crimean Tatar public and political
organisations197
The most active and influential Crimean Tatar public
and political organisations are: Majlis of the Crimean Tatar
people, Organisation of Crimean Tatar National Movement
(OCTNM), “Adalet” party, “Avdet” public organisation,
National Movement of Crimean Tatars (NMCT), “Milli
Firka” party. They have common goals: return and amenities
for Crimean Tatars on their historic Motherland; socioeconomic,
national, spiritual and cultural development of the
Crimean Tatar people; restoration of its political rights. Some
organisations (“Adalet”, “Avdet”) make particular emphasis
on the rebirth of Islam in Crimea as one of their priorities.
Those goals are attained through: activity of national
representative bodies (Majlis and local Majlises); work in
Crimean and Ukrainian representative and executive bodies
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FACTORS INFLUENCING THE SITUATION IN CRIMEA
199 Ibid.
200 Emiruseinov R. National autonomy will not meet hopes of our people. – Portal of Muslims of Crimea, March 19, 2008, http://qirim-vilayeti.org/content/
view/171/97
201 Comments by R.Chubarov on the mentioned draft Resolution of the Verkhovna Rada of the AR of Crimea. – Portal of Muslims of Crimea, April 3, 2008,
http://qirim-vilayeti.org/content/view/189/97
202 Majlis believes that Islamic extremists in Crimea are funded by Russia. – OBKOM, http://obkom.net.ua/news/2008-04-07/1700.shtml
203 For summary data of the latest public opinion poll of public perception of non-state institutes see Table “Specificities of identity of dominant socio-cultural
groups of Crimea”, pp.22-28 of this magazine.
There are some differences in the terms of restoration
of rights of the Crimean Tatar people and ideas of political
forms of their exercise: both tactical (Majlis – OCTNM
and “Adalet”) and strategic (Majlis – NMCT and “Milli
Firka”).
One should separately mention organisations
setting the goals of religious rebirth of the Crimean Tatar
people, its rapprochement with the Muslim world – i.e.,
branches of the Islamic party “Hizb al-Tahrir”, Salafites
(from the Arabic “salafa” – “original”), more often
termed as Wahhabites, after the founder of that Islamic
trend Mohammed ibn Abd el-Wahhab, followers of the
“Tablighi Jamaat” movement (from the Arabic “tabligh” –
“sermon”).
The main forms of their activity include sermon,
study, religious education, charity, organisation of
mass enlightenment events, distribution of the relevant
literature.
The Muslim community of Crimea is especially
concerned about the activity of Muslim groups sharing
the ideology of “Hizb al-Tahrir” party. Despite peaceful
rhetoric, representatives of that party do not reject the
possibility of establishment of an Islamic state on part of
Ukraine’s territory. They stress however that their goal lies
not in building that state but solely in Islamic education,
formation of new relations among Muslims, as the basis
for establishment of an Islamic state. At that, “Ukraine, as
an independent state, will itself establish relations with the
Islamic state after its appearance, and this is not related with
“Hizb al-Tahrir” party. Moreover that it [Ukraine] already
has such historic experience. For instance, agreements
made between Crimean Khan Islam Girey ІІІ and Bohdan
Khmelnytskyi”.
Such a trend in the party activity runs contrary to the
Constitution of Ukraine and, given the socio-political
spirits in the autonomy, can have a negative effect.
Furthermore, representatives of “Hizb al-Tahrir” indirectly
admit legitimacy of violence as a means of spread of Islam
and establishment of the Islamic rule: “As regards Jihad
(holy war against “infidels” – Ed.), it is a method of spread
of Islam all over the world, being a duty of an Islamic
state”199.
Such ideology is often considered extremist even in the
countries where “Hizb al-Tahrir” party is not considered
tied with terrorism and violence, and not officially
banned. Furthermore, that ideology can be adopted by
other political or religious groupings, unwilling to content
themselves with peaceful methods of spread of Islam and
restoration of Caliphate.
Regarding Crimean Tatar national problems, the
Crimean adherents of “Hizb al-Tahrir” stress that Islam has
always been the core of the Crimean Tatar national identity,
and now, it alone, not secular national ideologies, can save
Crimean Tatars from assimilation. Spread of the ideology
of “Hizb al-Tahrir” and expansion of its structure may
complicate its relations with the Spiritual Administration
of Muslims of Ukraine and Majlis, destabilise the sociopolitical
situation in the Crimean Tatar community of the
autonomy.
In fact, “Hizb al-Tahrir” is a political opponent of Majlis,
since it opposes the idea of restoration of the Crimean Tatar
autonomy in Crimea, criticises the Declaration of National
Self-Determination of the Crimean Tatar People, calling
it “another self-deception”, and therefore totally discredits
the Majlis activity200.
On March 27, 2008, draft resolution “On Draft Law
of Ukraine “On Ban on Activity of Political Party “Hizb
al-Tahrir”” was registered at the Verkhovna Rada of the
AR of Crimea. The draft was criticised by First Deputy
Head of Majlis R.Chubarov who said that it ran contrary
to the Constitution and legislation of Ukraine and was
intended to publicise its authors201.
At the same time, R.Chubarov strongly criticised “Hizb
al-Tahrir”, saying that its activity, “as well as of religious
sects, is dangerous for Crimean Tatar society, since it
threatens with “distortion of spiritual consciousness of
Crimean Tatars”, and suggesting that the party was funded
from abroad, from Russia. However, he mentioned “Hizb
al-Tahrir” on a par with pro-Russian radical groupings,
such as “Proryv” and the Eurasian Union of Youth202. The
latter proves that criticising the mentioned draft resolution
of the Verkhovna Rada of the AR of Crimea, R.Chubarov
did not defend “Hizb al-Tahrir” but spoke out against a
selective approach of Crimean MPs who sought a ban for
extremist Crimean Tatar national organisations, leaving no
less extremist pro-Russian organisations unattended.
Citizens’ attitude to non-governmental institutes
Results of the public opinion poll witnessed differences
in the degree of trust of different socio-cultural groups in
public organisations and low involvement of representatives
of all socio-cultural groups in their activity203.
Public organisations, including national-cultural
associations, enjoy the greatest trust among Crimean Tatars
(more than 40%). Representatives of the Slavic community
trust them far less (16-18%). Those institutes are least of
all trusted by “Crimean Ukrainians” – a bit more than 5%,
due to the low influence of Ukrainian organisations on the
socio-political situation in the autonomy, and low public
activity of the group itself, in particular, in the defence of
their national-cultural interests.
The rather strong trust of Crimean Tatars in public
organisations stems from the fact that those organisations
were created for defence of their interests, and many of
them really do that. Meanwhile, nearly a third of Crimean
Tatars (mainly those who mistrust them) stays beyond
their influence.
66 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
Therefore, Slavic and Crimean Tatar public
and political associations in Crimea have not just
different but often conflicting and even opposite goals
that cannot be attained in one political and legal
environment.
Those parties compete not only for the Crimean
political and economic space but also for symbolic
values, more dealing with the national identity,
national consciousness, that is why any actions of the
opposite side in that space are met especially painfully
and aggressively. Rivalry for symbolic values can make
inter-ethnic contradictions inter-confessional, lead
to their aggravation and involve new parties in the
conflict.
Other factors of growth of inter-confessional
tension may include superficial interpretation of
Islamic ideological trends and unreasonable allegations
of existence of cause-effect relations between them and
extremist organisations and movements (of Crimean
Wahhabites, “Tablighi Jamaat”). As a result, a
distorted, frightening image of bearers of those trends
is formed in the public consciousness, which may give
rise to negative reactions – from fear to aggression – and
stir up internal contradictions, growth of the conflict
potential in the Muslim community of Crimea and
aggravation of tension in inter-confessional and interethnic
relations.
Both the Slavic and Crimean Tatar public and political
communities have rather serious internal contradictions
that, on one hand, undermine the effectiveness of the
concerned organisations, on the other – politically
disorient citizens making their social basis, creating
background for breach of socio-political stability.
The rate of involvement of representatives of all sociocultural
groups in the activity of public organisations is low –
3-6%. This level is insufficient to speak of large-scale
activity of public organisations, existence of a stabilising
factor of civic activity or, moreover, signs of civil society.
However, the reported level is sufficient for beginning of
radicalisation of social relations and further escalation of
tension.
Russian public and political associations
Russian Community of Crimea (RCC). Established in 1993
(registered in 1994) on the basis of the Republican Party of Crimea.
Enjoys the greatest influence among Russian public and political
associations. RCC is led by S.Tsekov
The RCC ideology rests on nostalgia for the USSR, seen as the
successor to the Russian Empire; idea of illegality of Crimea’s transfer
to Ukraine in 1954; rejection of attempts of integration of the Crimea
in the Ukrainian socio-cultural space; perception of Russia as their
historic Motherland.
The organisation declares two main goals:
• restoration of political, economic, cultural ties of Crimea with
the Russian Federation, cut during the break-up of the USSR;
• defence of the Russian socio-cultural space.
At elections to the Verkhovna Rada of the AR of Crimea in 1998,
pro-Russian forces, weakened by the crisis of mid-1990s, suffered a
defeat, and in 1998-2002, RCC had no representation in the Crimean
authorities.
At the 2002 elections, six representatives of the election
alliance “Russian Bloc of Crimea” made on the basis of RCC,
Congress of Russian Communities of the Crimea (CRCC) and
Party “Union” were elected to the Verkhovna Rada of the AR of
Crimea, including four RCC members. However, those MPs did
not manage to form one faction. Later, confrontation within the
Russian Bloc of Crimea resulted in the withdrawal of CRCC and
political accusations of RCC leader S.Tsekov (of corruption,
uncontrolled use of funds allocated by the Moscow Government to
Russian organisations of Crimea for humanitarian purposes) and
RCC as a whole (refusal from defence of the interests of Russian
residents of Crimea).
In 2003, RCC admitted the Russian Movement of Crimea that
greatly contributed to the victory of the “Russia” bloc at elections of
the Verkhovna Rada of the AR of Crimea in 1994.
In 2003, RCC supported at elections of the Verkhovna Rada
of the AR of Crimea election bloc “For Yanukovych!” (Party of
Regions – Party “Russian Bloc”) that won 19 seats, and S.Tsekov
was elected First Deputy Chairman of the Verkhovna Rada of the
AR of Crimea.
People’s Front “Sevastopol-Crimea-Russia”. The organisation
was established on August 24, 2005, by 10 public organisations of
Crimea and Sevastopol, including the Russian Popular Assembly of
Sevastopol, the Russian Popular Assembly of Simferopol, Sevastopol
CRIMEAN ORGANISATIONS EXERTING THE GREATEST INFLUENCE ON
INTER-ETHNIC AND INTER-CONFESSIONAL RELATIONS
Annex 3
Are you a member, or do you participate
in the activity of a national-cultural community,
union, organisation?
% of those polled
Crimean Tatars
Slavic
community
Other
Crimean
Ukrainians
Age
(Crimea)
Gender
(Crimea)
18-29
30-39
40-49
50-59
60
and over
Male
Female
Yes 3.8 5.8 3.2 3.1 9.4 4.6 4.4 2.3 2.6 6.3 3.8
No 85.9 85.4 91.2 92.4 82.0 88.0 86.3 88.4 92.1 87.4 89.9
Hard to say 10.3 8.8 5.6 4.5 8.6 7.4 9.3 9.3 5.3 6.3 6.3
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 67
ANNEX 3
and Yalta organisations of the Movement of Voters of Crimea and
others. Its coordinator is V.Podyachyi.
The Declaration of establishment of the People’s Front stated1
that “Ukraine, of course, as all states, has the right to sovereignty,
independence, but without lands stolen from Russia and millions of
Russians compactly living there”. It formulated the goal of the newly
established organisation: “on the basis of domestic and international
law, commonly accepted humanitarian norms, historic facts, as
soon as possible, to restore historic justice – reunite Sevastopol, the
Crimea with our Motherland – Russia”.
That organisation is much more radical than RCC. Its activity is
openly separatist; it set the goal of not defence of the socio-cultural
space or restoration of Crimea’s ties with Russia, but its transfer to
Russia. The very Declaration of establishment of the Front was a
breach of the Constitution of Ukraine.
National Front “Sevastopol-Crimea-Russia”. Established in
November 2006 as a coalition of public and political organisations
of the AR of Crimea and Sevastopol that united 15 organisations,
including CRCC, the Russian Front of Sergey Shuvainikov, the
Union of Orthodox Citizens of Crimea, the Russian Community of
Simferopol, Bilogirya and Sevastopol, Sevastopol Movement against
Illegal Immigration. The alliance was led by S.Shuvainikov.
Goals of the alliance: struggle for recognition of the legal
status of the Russian people and Russian nation in the Constitution
and laws of Ukraine; an official status for the Russian language;
“organisation of a representative body of Russian self-government –
Russian Constituent Assembly of Crimea (national congress) and its
executive body – Russian Duma of Crimea; restoration of historic
justice and recognition of conformity of the status of Sevastopol and
Crimea provisionally annexed by the Ukrainian state to international
norms and popular will”.
It plans gradual secession of Crimea from Ukraine and joining
Russia: a new legal status for the Russian national minority
within Ukraine’s legal framework and creation of national selfgovernment
bodies; withdrawal from the legal framework of
Ukraine (as a mirror image of the goals and methods of the
Crimean Tatar movement).
Youth organisations. In the recent year, youth pro-Russian
organisations have been active in Crimea, such as the Crimean
division of the Eurasian Union of Youth (EUY) – Russian organisation
of the chauvinist-imperial trend. The Crimean division of EUY is led
by K.Knyryk.
Political goals and tasks of EUY suggest restoration of the
Russian empire and separation of the Crimea from Ukraine for its
salvation2.
Youth organisation “Proryv” acts under the motto of
unification of Crimea with Russia and anti-Ukrainian slogans. Its
activity also covers other regions of Ukraine, where it “defends
churches of the Moscow Patriarchate”, confronts “Ukrainian
nationalists”, etc.
Cossack organisations of Crimea. There are 18 Cossack
organisations registered in Crimea and five legalised by notice.
A few more act without official legalisation. The most active
were the Crimean Cossack Union, the Association of Cossacks
of the AR of Crimea “Krymska Palanka”, the Union of Cossacks
of Feodosiya Region, the International Union of Cossacks of
Tavrida.
Supreme Ataman of the Crimean Cossack Union V.Cherkashyn,
denying the militarised and anti-Tatar nature of Crimean Cossacks
and stressing that “all actions of Cossacks pursue peace, accord
and order in Crimea”, also terms defence of the Orthodox church as
its priority: “Having come to the peninsula, you will see 30 strong
organisations standing in defence of the Ukrainian Orthodox Church
of the Moscow Patriarchate”3.
Crimean Tatar public and political associations
Majlis of the Crimean Tatar People4. Established at the
ІІ Kurultay (national congress) of the Crimean Tatar people in
June, 1991. Elected its leader was M.Dzhemilev, who occupies
that post till now. Majlis to a large extent controls the political
and public life of Crimean Tatars, actually represents them in
relations with the central state authorities, has representatives
in the Verkhovna Rada of the AR of Crimea, supreme republican
executive bodies.
Majlis may be termed as a public and political organisation only
with serious reservations. By its functions, it is a plenipotentiary
executive body of Crimean Tatar self-government – “the only supreme
plenipotentiary representative body of the Crimean Tatar people,
elected by Kurultay from among its delegates”. It has its executive
hierarchy – local Majlises, subordinated to Majlis of the Crimean Tatar
People. In turn, Kurultay is the national Crimean Tatar congress, the
supreme representative plenipotentiary body of the Crimean Tatar
people.
In pursuance of the powers approved on November 10,
2001, Kurultay takes decisions on all material issues of sociopolitical,
socio-economic, cultural and other aspects of life of
the Crimean Tatar people. Furthermore, “decisions of Kurultay
are binding on its delegates, their bodies and the whole system
of national representation and self-government of the Crimean
Tatar people: Majlis of the Crimean Tatar people, regional and
local Majlises, committees for assistance with return of Crimean
Tatars, their branches and bodies, representatives of Majlis in
other states”.
One of the main goals of Majlis lies in restoration of national
and political rights of the Crimean Tatar people and exercise of
its right to free national-state self-determination on its national
territory. Therefore, the Crimean Tatar people is a priori termed
as political nation that may seek own statehood. The intermediary
political goal of Majlis is to secure “establishment of the status
of Crimea in Ukraine by the national-territorial principle on the
basis of exercise by the Crimean Tatar people of its inalienable
right to self-government and guarantee of observance of rights
1 For Declaration of establishment of the People’s Front “Sevastopol-Crimea-Russia” see: Russian People’s Assembly of Sevastopol, http://sevrus.narod.
ru/#v25
2 Knyryk K.: “To seek creation of an empire, first of all, to tear Crimea from Ukraine, for saving it”. See: Khan R. Crimeanjugend: youth political organisations
of the peninsula. – Eurasian Union of Youth, http://www.rossia3.ru
3 Kravchenko S. Cossack cover. – BOSPOR, January 31, 2008, http://bospor.com.ua/articles/1089.shtml
4 For documents on Kurultay and Majlis of the Crimean Tatar people see: web site of the Centre of Information and Documentation of Crimean Tatars,
http://cidct.org.ua
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CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
and freedoms for all people, irrespective of their race, nationality,
political views and faith”.
Kurultay and Majlis position themselves as Crimean Tatar
national self-government bodies whose political goals deal with the
whole Crimean Tatar people as the core of the future Crimean political
nation.
Organisation of Crimean Tatar National Movement (OCTNM).
Established at the Fifth All-Union Conference of representatives
of spearhead groups of the Crimean Tatar national movement held
on April 29 - May 2, 1989 in the city of Yangiyul (Tashkent region,
Uzbek SSR). M.Dzhemilev was elected the first OCTNM head. The first
OCTNM congress was held on August 23-25, 1991. In 1991-1994,
after M.Dzhemilev was elected Majlis leader, the post of the OCTNM
head was entrusted to R.Chubarov. At that time, OCTNM and Majlis
had no differences whatsoever.
OCTNM largely shares the Majlis ideology but is more
uncompromising. It remains generally loyal to Majlis and its leadership
and recognises their powers.
“Adalet” (“Justice”) Party. Established on August 19, 1995, at
the 1st (constituent) congress. Its programme objectives include:
assistance to “soonest return of Crimean Tatars to their historic
Motherland”, “return to the Crimean Tatar people of all property
criminally taken from it in the result of deportation of 1944”, “building
in Crimea of a national state resting on the exercise by the Crimean
Tatar people of its natural right to self-determination”. The party
firmly stands on the Islamic position and opposes spread of other
religious teachings, first of all, Christianity, among Crimean Tatars
and conversion of Crimean Tatars to other religions. It advocates
“purification” of Crimean Tatar society from alien (non-Islamic)
morality, fighting crime and lechery, preservation and development of
the Crimean Tatar language and culture.
“Adalet” is associated with the establishment of paramilitary units
(so-called askers), tasked to defend Crimean Tatars from attacks of
criminal groups and pro-Russian, first of all, Cossack, organisations.
Meanwhile, Majlis praises participation of “Adalet” in the work of
national self-government bodies and considers it one the most
important and effective national parties.
Information and civil rights movement “Azatlyk” (“Freedom”).
Established in April 2005 to make the authorities free Crimean Tatars
involved in the mass fight between Crimean Tatar and Slavic youths
in Simferopol bar “Cotton club” and sentenced to different terms
of imprisonment. After the goal was achieved, the activity of the
organisation went down.
The Movement’s conference in 2008 did not support the negative
stand of its leadership (N.Bekirov, A.Mustafaev) towards the supreme
representative bodies of the Crimean Tatar people, which made those
leaders to quit the Movement.
Public organisation “Avdet” (“Return”). Registered in April 2007,
has 15 thousand members and 120 divisions. It has two priority lines of
activity: enhancement of the well-being and revival of spiritual values
of the Crimean Tatar people. The organisation is especially active in
the field of provision of repatriates with land (execution of relevant
documents, legal support) and takes part in talks with the authorities,
defence of activists of “fields of protest” from “arbitrariness of militia
and officials”.
“Avdet” programme envisages assistance for revival of
Islam and Islamic values on the peninsula, in particular: help in
construction of a mosque in every populated locality of the Crimea
and opening of a madrasah at it; restoration of historic Crimean
Tatar place names; promotion and development of genealogical
programmes5.
National Movement of Crimean Tatars (NMCT). Established,
according to its representatives, on May 18, 1944 – in the first day
of deportation. Before 1993, NMCT was led by Yu.Osmanov whose
works, along with those by I.Gasprinskiy, N.Trubetskoy and L.Gumilev,
are considered the ideological basis of the movement. NMCT does
not recognise Majlis as the plenipotentiary representative body of the
Crimean Tatar people.
By contrast to Majlis, NMCT took a pro-Russian stand and shares
the idea of reintegration of the post-Soviet space under the auspices
of Russia, popular in the Russian political community.
Coordinating Council of Public and Political Forces of the Crimean
Tatar People (CC). Established 2002 on the initiative of NMCT as an
alternative to Majlis. CC does not recognise the legitimacy of Majlis
and local Majlises, accusing it of indulgence towards the Ukrainian
authorities, and is trying to discredit its leadership by all means. Its
demands on the Ukrainian authorities are more radical than of Majlis.
For instance, in the fall of 2002, CC submitted to the Verkhovna
Rada of Ukraine for consideration draft Law “On Rehabilitation of
the Crimean Tatar People” providing for restoration in Crimea of the
Crimean Tatar autonomy and proposed relevant amendments to the
Constitution of Ukraine. Now, it has a low profile in the socio-political
life of the autonomy.
“Milli Firka” (“People’s Party”). Established in 2007. The
elected Chairman of its Board (Kenesh) is V.Abduraimov who before
2000 led NMCT. “Milli Firka” is in opposition to Majlis, accusing its
leadership of usurpation of power in Crimean Tatar representative
bodies, corruption and betrayal of the interests of the Crimean Tatar
people. It described the World Congress of Crimean Tatars as a “vast
international affair”6.
As well as NMCT, “Milli Firka” is very critical about the Ukrainian
authorities, demanding from them full rehabilitation of the Crimean
Tatar people. It mainly contacts with the Russian authorities.
In September 2008, it transferred via the General Consulate of
the Russian Federation in Simferopol an appeal to the Russian
President D.Medvedev, Prime Minister V.Putin and President of the
Republic of Tatarstan M.Shaimiev with a call “to defend on behalf of
the Russian Federation the indigenous and other small ethnoses of
the Crimea from endless genocide by the nationalist-minded official
authorities of Ukraine”7. However, the organisation is not united on
this issue.
5 For more detail see: Information-analytical portal of public organisation “Avdet”, http://awdet.org/way.htm
6 “Milli Firka” returned the leader who called upon Russia to defend Crimean Tatars from genocide on the part of Ukrainian authorities. – “Novyi Region –
Crimea”, May 15, 2009, http://www.nr2.ru/ua/232420
7 Vovchenko P. “Milli Firka” calls Russian tanks to the Crimea?”. – “Sobytiya”, September 12, 2008, http://www.sobytiya.com.ua/index.php?number=
136&doc=1221207061
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 69
ANNEX 3
Islamic organisations and movements
Party “Hizb al-Tahrir” (full name: “Hizb al-Tahrir al-Islam” –
“Islamic Liberation Party”). Established in 1953 in Jerusalem
by a judge of the Shariah court of appeal Taqiuddin al-Nabhani.
Active in 40 countries of the world. The largest party branch
operates in Great Britain (up to 10 thousand members). The
party is banned in Egypt, Kazakhstan, Russia, Tajikistan. In some
countries “Hizb al-Tahrir”, not officially banned, is persecuted,
and its members are subjected to repressions (Libya, Syria,
Uzbekistan). Meanwhile, it is active in such Islamic countries
as Yemen, Indonesia, Lebanon, Malaysia, UAE and Palestinian
Autonomy. In Europe (except Germany) and the USA, the
party also functions legally. It is often criticized for extremist
statements of its members, but no connection with terrorism and
violence has been revealed.
The declared goal of “Hizb al-Tahrir” is to return Muslims
to the Islamic way of life and spread Islam all over the world.
That goal is to be attained through restoration of the Caliphate –
a theocratic state uniting all Muslims of the world and built on the
socio-political principles on which the Caliphate was built at the
time of Prophet Muhammed and the first four righteous Caliphs –
Abu Bakr, Omar, Osman and Ali. It proclaims purely peaceful
methods of restoration of the Caliphate – building of party
structures, propaganda and education, winning political support:
“Hizb al-Tahrir” is a political party whose ideology is Islam. Its
activity focuses on ideological and political struggle without any
physical action”8.
Adherents of “Hizb al-Tahrir” follow a fundamentalist approach
to Islam, recognising as righteous only what was sermonised at
the time of its early dissemination and rejecting later novelties
and local national traits.
Influence of the “Hizb al-Tahrir” ideology is periodically seen in
separate communities and spiritual schools. This may be attributed
not as much to special propagandist talents of missionaries of that
organisation as to the fact that against the background of economic
problems, social injustice, moral decay and unemployment hitting
youths the most, slogans of equality of Muslims, social justice, purity
and decency in personal and public relations, criticism of capitalism
find an echo in the hearts of Crimean Tatars, especially of the younger
generation.
Wahhabites. By contrast to the ideology and activity of “Hizb
al-Tahrir”, wahhabism, often mentioned in discussions of the
religious situation in Crimea, looks less than certain. It is often
either not distinguished from “Hizb al-Tahrir”9, or described
in general terms. The emergence of wahhabism in Crimea is
associated either with Arab influence or penetration of Chechen
fighters to the peninsula.
Assessments of the activity of Crimean Wahhabites are
controversial. Some consider them remote from politics
preachers carrying alien for Crimean Tatars religious perceptions
and customs, others – a criminal-terrorist grouping10. Reports of
military camps where armed Wahhabites led by foreign instructors
studied the art of subversion and terrorism were not proven with
facts.
Wahhabites in Crimea are not numerous, not united in one
organisation and display little activity beyond religion.
“Tablighi Jamaat” Movement. Founded in 1927 by Maulana
Muhammad Ilyas al-Kandhlawi to disseminate Islam among poor
Indian villagers who were nominally considered Muslims but
converted by Hindus dominant in that region into their religion.
“Tablighi Jamaat” rests on six principles: (1) invitation (“tabligh” –
invitation, sermon) to Islam is not a task for theologians but
a duty of every Muslim; (2) one should not wait while people
come to sermon, a preacher should himself go to the people;
(3) preachers should themselves care about their financial support; (4)
representation of all social strata in the movement; (5) strengthening
of the faith of Muslims; (6) main goal – unity of all Muslims; theological
and political differences in the movement are prohibited11.
Data of the Movement are rather controversial: some authors
state that it acts “as a recruiter of shahids for Muslim terrorist
organisations”, other describe it as “quite an apolitical Movement for
moral perfection through diligent observance of religious canons”12,
and note that “the Movement does not recognise the idea of Jihad as
a holy war against infidels. Instead, “Tablighi Jamaat” terms Jihad as
efforts aimed at strengthening creed in the hearts of Muslims”.
8 Who is the true dissident? – Portal of Muslims of Crimea, August 4, 2008, http://qirim-vilayeti.org/content/view/732/202
9 Crimean Tatar Majlis loses influence: Wahhabites and “Hizb al-Tahrir” gain ever greater popularity on the peninsula. – “Yedinoe Otechestvo”,
http://www.otechestvo.org.ua/main/20085/2210.htm; Dorofeev A. Wahhabites are already in Crimea. – Web site Аnti-Оrange, 28 June 2005, http://www.
anti-orange-ua.com.ru/content/view/928/67
10 Crimea does not belong to Ukraine. – “Stolichnye Novosti”, July 6, 2004, http://cn.com.ua/N316/resonance/resonanc
11 Ibid.
12 Litvinova E. Islamic organisations in Ukraine. – Information-Analytical Centre for Study of Socio-Political Processes in Post-Soviet Space,
December 14, 2006, http://www.ia-centr.ru/archive/public_details5717.html?id=257
70 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
КРИМСЬКИЙ СОЦІУМ: ЛІНІЇ ПОДІЛУ ТА ПЕРСПЕКТИВИ КОНСОЛІДАЦІЇ
The results of the surveys show that the nature of
socio-political, inter-ethnic and inter-confessional
relations in the AR of Crimea is largely determined by
the specific traits of the emerging identities of its
residents.
Such specific traits in the first place originate from the
emergence of the Crimean identity, actually in isolation
from the formation of a common identity of Ukraine’s
citizens1, the existence of two main “socio-cultural
centres” of formation of such identity (identities) –
the “Russian world”, on one hand, and Crimean Tatar
traditions, with the important role of affiliation with Islam –
on the other.
In such conditions, two identities are actually being
formed in Crimea. Common of both, they are spatially
localised and claim the whole of Crimea as their territory
and living space.
The main difference between them is that the Slavic
community, whose identity, resting on the values of the
“Russian world”, sees Crimea as a part of Russia (formally
or informally – as a Russian ethnic autonomy in Ukraine),
while the “Crimean Tatar”community views Crimea as
a part of Ukraine. At that, the bearers of both identities
are not integrated into the Ukrainian socio-cultural space,
with for former displaying actually a hostile attitude to it,
the latter more disposed to integration, on the condition of
preservation of their originality.
Evidently, if the status quo persists, the prospects of
formation of a common identity of the Crimean residents
as an integral part of the pan-Ukrainian identity will look
doubtful. A more likely scenario presumes continuation
of formation of the two main local identities described
above.
In such conditions, the two dominant socio-cultural
groups will remain the main actors of socio-political,
inter-ethnic and inter-confessional relations – Slavic
community, including almost all ethnic Russians living in
Crimea and the majority of Crimean Ukrainians, on one
hand, and Crimean Tatars – on the other. The performed
surveys show that the relations between those groups are
tense, and from the viewpoint of potential dynamics, they
may be described as pre-conflict.
The main dividing lines between those groups are: in
the political domain – unequal possibilities for satisfaction
3. CONCLUSIONS
AND PROPOSALS
of their needs and interests through the Crimean authorities
and self-government bodies; in the socio-economic –
unequal access to the Crimean resources (first of all,
land, work, housing); in the legal domain – legislative
disregard of the specificities of the status of the parties
and rights conditioned by that status; in the sociocultural
– evident disparity in the parties’ opportunities
in the sectors of education and information, and claims
of each community to their “roots” in Crimea, i.e., to its
symbolic values.
What is especially dangerous is that, first, the split
goes between the two most numerous communities
making the majority of the Crimean population; second,
in most issues, one community (Crimean Tatar) is
discriminated, which strengthens protest spirits in it;
third, there is no mediator between the parties – the
authorities cannot be the one due to the mistrust of
both parties, and no other socio-cultural community in
Crimea can perform that mission because of insufficient
influence, uncertainty of its position, gravitation to
Slavic community, etc.
Threatening, from the viewpoint of probability of
a direct conflict between the main communities, are
negative stereotypes of perception and bias against
the other party in both communities (but much more –
among Slavs). Those stereotypes are actively instilled
by certain political forces, public associations, mass
media, being an additional factor of tension. Absence
of mutual interest, indifference of communities to each
other’s problems, lack of inter-group communication,
in absence of traditions of life in a multicultural society,
make them concentrate on their own problems and see
each other only as rivals or even potential enemies.
Tension in relations between the main socio-cultural
communities of Crimea may be stirred up by: absence of a
thought-over strategy of Crimea’s development in central
authorities, fundamentals of the state policy in the most
critical for the autonomy sectors, situational, sometimes
chaotic reaction to developments, and inheritance of
approaches of the previous years – abstention from passage
of maybe unpopular for some part of the population but
necessary decisions, resulting in growing accumulation of
problems.
Inability of the central authorities to provide for
implementation of the passed decisions concerning the
1 Not least of all – due the dim image of a common identity of Ukraine’s citizens on the national level, and therefore – absence of purposeful actions of the
authorities for its formation.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 71
AR of Crimea discredits them in the eyes of Crimean
residents and, along with insufficient consideration of the
Crimean specificity, adds to estrangement between the
capital and the autonomy.
Corruption in the local authorities is the main factor
exerting negative influence on the relations between the
main socio-cultural communities, which restricts access
to the main resources of the peninsula and toughens
competition for them among different groups. Tension in
relations between the main socio-cultural communities
is also stirred up be decisions of the Crimean authorities
biased against some group (groups), including justified by
formal abidance by the principle of equality.
In such conditions, external influence on the situation
can play a destructive role, given the susceptibility of
both communities to it. Since much greater resources
and tools of influence are available to Russia, seen as a
socio-cultural – and largely geopolitical – model for the
most numerous socio-cultural community of Crimea, this
factor deserves particular attention.
The situation in Crimea in the recent years has been
closely monitored by the expert community, many
reasonable recommendations have been generated for the
state authorities on different levels for solution of urgent
problems of the autonomy. However, the degree of their
implementation is extremely low – due to the neglect of
those recommendations by the authorities for which they
were made, their inability to provide for implementation
of their own decisions, or for other reasons2.
Razumkov Centre’s experts believe that further
conservation of the situation in Crimea is fraught with an
acute conflict among representatives of different sociocultural
groups. The state authorities should formulate and
implement an integral and reasonable policy in different
domains. Presented below are the Centre’s proposals as
to the lines of activity and practical decisions that can
have a positive effect on the situation in Crimea3.
Priority lines of the state policy that might have
a positive effect on the overall situation in the AR of
Crimea, socio-economic well-being of citizens and
indirectly – on inter-ethnic and inter-confessional
relations in the autonomy:
• general improvement of the socio-economic
situation in the AR of Crimea, development
of the recreational branch, a decrease of the
unemployment rate;
• comprehensive solution of existing problems in
the land sector;
• fighting corruption in the state authorities, local selfgovernment
bodies, courts and law-enforcement
bodies;
• implementation of programmes of amenities for
repatriates, their full-scale funding at the expense
of the central and republican budgets;
• pursuance by the central authorities of a balanced
policy in the educational, cultural and information
sectors aimed at satisfaction of the needs of
different ethnic groups of the autonomy4.
Priority measures whose implementation could bring
immediate positive effect:
• passage of a Law on restoration of rights of persons
deported on ethnic grounds;
• soonest completion of development of the
registration-cadastre system of land management,
inventory of land, delimitation of state and
communal land, coordination of plans of urban
planning and development of territories;
• formation of a resource-backed state order for
social advertising intended to weaken the influence
of negative stereotypes of mutual perception by
representatives of different socio-cultural groups;
• greater attention of law-enforcement bodies to
preventive activities concerning public associations
whose activity contributes to the growth of tension
in relations among different socio-cultural, ethnic
and confessional communities;
• prompt response of the concerned state bodies in
line with the effective legislation to the actions
of mass media conducive to aggravation of interethnic
and inter-confessional tension.
In view of the approaching presidential election
campaign, it would be nice if the candidates abstain from
speculation on splits existing between the main sociocultural
communities in Crimea.
Measures that should be taken in the short
and middle run:
Political-legal sphere
To pass to a system of strategic management of
processes in the autonomy.
To amend the Constitution of the AR of Crimea
and the effective legislation of Ukraine for removal
of contradictions between the Ukrainian and Crimean
Constitutions, clearer division of competences and
powers of the central authorities and Crimean authorities.
For generation of coordinated proposals, to establish a
special commission involving MPs of Ukraine and of
the AR of Crimea, representatives of the central and
Crimean authorities, experts.
To expand possibilities for bringing to the attention
of the central authorities of Ukraine and consideration
at passage of decisions concerning the AR of Crimea
the opinion of the authorities of the autonomy. With
that purpose:
• given the special status of the Crimean autonomy,
to consider giving the Verkhovna Rada of Crimea
the legislative initiative in the Verkhovna Rada
CONCLUSIONS AND PROPOSALS
2 For instance, many of the current problems of Crimea are caused by the factors noted by Razumkov Centre yet in 2001, for the solution of which it put forward
its recommendations. However, most of those recommendations were not implemented and remain on the agenda. See: The Crimea on the Political Map of
Ukraine. Razumkov Centre Analytical Report. – “National Security & Defence”, No. 4, 2001, pp. 35-39.
3 Since the state authorities passed many regulatory acts dealing with different sectors of life in Crimea, the emphasis is on the general lines of the state policy,
presuming that the decisions passed must be implemented, without their duplication. Detailed down to the level of specific measures are only the proposals not
yet reflected in the relevant state documents.
4 In the foreign policy domain, positive influence on the situation in Crimea can be made by normalisation of Ukraine-Russia relations, but this issue requires
separate examination.
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CRIMEAN SOCIETY: DIVIDING LINES AND PROSPECTS OF CONSOLIDATION
of Ukraine on issues referred by the Constitution
of Ukraine to the competence of the AR of Crimea;
• activate the National Council for Interaction of
the State Authorities and Local Self-Government
Bodies under the President of Ukraine;
• step up activity on all levels and enhance the
effectiveness of consultative-advisory bodies
including representatives of the Crimean Tatar
people;
• provide for stable and effective operation of
the Permanent Representation of the President
of Ukraine in the AR of Crimea (increasing, if
necessary, its staff, funding, etc.);
• expand powers of the Representative of the AR
of Crimea in Kyiv, to empower him to attend
and speak at sessions of the Verkhovna Rada of
Ukraine, meetings of the Cabinet of Ministers
of Ukraine, Ukraine’s NSDC at consideration of
issues concerning the AR of Crimea;
• perfection of Ukraine’s election system, to take
into account the need of wider representation
of regions, including the AR of Crimea, in the
Verkhovna Rada of Ukraine;
• introduce the practice of consultations of the
central authorities at preparation of decisions
concerning the AR of Crimea with republican
authorities of the relevant specialisation,
representatives of Crimean academic and expert
organisations;
• arrange in the Verkhovna Rada of Ukraine
parliamentary hearings to consider the state of
socio-political, inter-ethnic and inter-confessional
relations in the AR of Crimea, analyse the
progress of implementation of decisions of previous
parliamentary hearings devoted to Crimean
problems.
For regimentation of the legal status of indigenous
peoples and their institutes, assistance with solution of
problems of repatriates, as part of formulation of a single
ethno-national and regional state policy, to work out and
pass the Law on indigenous peoples of Ukraine, ensuring
its conformity with international legal documents on
the status of indigenous peoples and providing for
regimentation of the status of institutes of ethnic selfgovernment.
To provide for utmost de-politicisation of development
of those laws, publicity and transparency, a qualified,
expert approach to the content of the documents.
For better consideration of the interests of all ethnic
communities of Crimea by the republican authorities
and self-government bodies:
• amend the legislation on election of the
Verkhovna Rada of the AR of Crimea and local
self-government bodies, providing for cancellation
of proportional elections by closed lists and
modification of the election system for greater
influence of voters on personal membership of the
corps of MPs;
• provide for nomination of candidates at elections
of the Verkhovna Rada of the AR of Crimea from
public associations created on ethnic grounds;
• at passage of the new wording of the Law of Ukraine
“On All-Ukrainian and Local Referendums”, to
provide mechanisms enabling ethnic minorities to
initiate referendums on issues concerning them;
• study the possibility of employment of foreign
experience of representation of ethnic communities
in state authorities and self-government bodies.
Socio-economic sphere
To work out and approve the Strategy of Socio-
Economic Development of the AR of Crimea as an integral
long-term document. The document should be consistent
with the national strategy of development of Ukraine and
documents laying down fundamentals of the state policy in
the sectors especially critical for the AR of Crimea: ethnonational,
language, information, church and religious.
Till the passage of the Strategy, to provide for fullscale
funding of the State Programme of Socio-Economic
Development of the AR of Crimea through 2017 and
implementation of measures envisaged thereby.
To review state programmes in different domains
dealing with the AR of Crimea, for their mutual
coordination. To ensure full-scale funding of programmes
of settlement and amenities for repatriates from the state
and republican budgets.
Socio-cultural sphere
For implementation of an integral approach to
solution of problems in the field of inter-ethnic and interconfessional
relations, language and information policy,
creation of a conceptual basis for development of the
legislation in the relevant sectors, including for solution
of problems existing in the AR of Crimea, to pass the
following legislative acts:
• the Law on the Fundamentals of the Ethno-National
Policy in Ukraine;
• the Law on the Concept of State-Confessional
Relations in Ukraine5;
• the Law on the Concept of the State Language
Policy and a New Wording of the Law on Languages
in Ukraine;
• the Law on the Concept of the Information Policy
of Ukraine.
For study of the issue of preservation and restoration
of the historic and cultural heritage of peoples of Crimea,
to create a commission at the Council of Ministers of
the AR of Crimea, including representatives of ethnic
communities of Crimea, the authorities, local selfgovernment
bodies, scholars, experts.
Implementation of the above proposals would
contribute to the solution of the most urgent problems
giving rise to conflicts among representatives of the
main socio-cultural communities of Crimea, mitigate
tension in their relations, create favourable conditions
for maintenance of a dialog.
5 For the relevant bill developed within the framework of the permanent Round-table “Religion and power in Ukraine: problems of relations” under the
supervision of Razumkov Centre and supported by the All-Ukrainian Council of Churches and Religious Organisations see: “National Security & Defence”, No. 8,
2007, pp.2-9.
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 73
ВИСНОВКИ ТА ПРОПОЗИЦІЇ
Crimea is a special region of Ukraine. Specific of the political process on the peninsula is the interconnection of
common Ukrainian factors, a number of purely Crimean variables and the Russian influence. Purely
Crimean is combination, sometimes – confrontation of three nationalisms: Ukrainian, Russian and
Crimean Tatar.
Crimean peninsula is the only region where ethnic Russians make a small but absolute majority (up to 60%).
Another important factor is produced by the presence in Crimea of a politically organised (through the Majlis
system) ethnic community – Crimean Tatar people (up to 270 thousand persons), traditionally professing
Islam in its Sunni version.
The situation on the peninsula is seriously complicated by the weakness, sometimes – corruption of
the state authorities, lack of consistency in their actions, low executive discipline and resultant
non-implementation of state decisions, including of Ukraine’s National Security and Defence Council,
decrees of Ukraine’s President. All this goes together with the continuing redistribution of property, first of
all, local land resources, whose value, according to independent estimates, hits tens of billions of dollars. In
fact, those issues in many instances determine the level of political tension in Crimea.
Political developments are also influenced from abroad, first of all – from Russia. However, the Russian
factor, understood as activity of governmental, non-governmental and business structures of the Russian
Federation in issues dealing with Crimea, is not decisive for the socio-political processes on the peninsula,
exerting adjusting influence, rather serious though.
This article is intended to identify the key features of the Russian factor in Crimean political process, or,
rather, the specificities, priority goals and lines of the Russian external influence. Noteworthy, the notion of
the Russian factor is wider, as its components may also include the demonstrative effect of revival of Russia’s
might, attractiveness of the Russian high culture, numerous personal, including family, ties, etc. By contrast,
influence is understood here as the totality of conscious and sometimes unconscious actions of the Russian
side pushing its interests1.
1 There is a number of Ukrainian and foreign surveys on allied issues. Among them, one should mention collective monographs, e.g.: by Bohomolov О.,
Semivolos І., Danylov S. Islam and identity policy in Crimea: from symbolic wars to admission of cultural variety. – Kyiv, 2009; Tyshchenko Yu., Khalilov R.,
Kapustin M. Socio-political processes in the AR of Crimea. Basic trends. – Kyiv, 2008; the work by Maigre M. Crimea – The Achilles Heel of Ukraine. – Tallinn,
ICDS, November 2008; as well as the Razumkov Centre studies.
This article uses some ideas from the mentioned materials.
Overall context
First, a number of introductory comments. The
modern Russian state is the direct legal ideological and
institutional heir to the USSR. This primarily refers to the
pursuance of foreign policy and security functions
of the state, i.e., structures of the Ministry of Foreign
Affairs, Armed Forces and special services (Federal
Security Service, Foreign Intelligence Service and Main
Intelligence Department of Russia’s Armed Forces).
At that, continuity is realised and sometimes even
emphasised, even officially.
UПKРЯRМAIІN ІНE ОINЗ ЕTМHEН КІS ОІIНNНВGКЕLУСEРТ EЕИCНЦТOІЇОN ВСO ПУMРКICОР АМSЇPОНAЖУC:Н EТІСЕРТЬИ ТРОЕРГІІАОЛНЬІВН УИ ЙК ОРНОТЗЕПКОСДТІІЛ ГЛОБАЛІЗАЦІЇ ARTICLES
CRIMEAN PROJECT OF
THE RUSSIAN FEDERATION:
AN ATTEMPT OF POLICY
RECONSTRUCTION ON THE
BASIS OF AD HOC DECISIONS
Oleksandr LYTVYNENKO,
Independent Expert
74 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
Specific of such continuity of the state is conservation
of the institutional memory, inter alia, mechanisms of
decision-making, including strategic2. This in no way
means invariability of policy goals and means, rather –
kind of kinship and continuity of the ways of thinking,
world outlook and style of decision-making. The present
Russian leadership may hardly be termed as the continuer
of Stalin’s course, but the historic heritage continues to
hang over the masters of the Kremlin and Presidential
Administration.
That is why it makes sense to refer to historic precedents
of the Russian (Soviet) policy towards “temporarily
lost territories”. An interesting example is presented by
Stalin’s Baltic policy, perfectly analysed in E.Zubkova’s
monograph “The Baltics and the Kremlin”3. According
to her conclusions, in late 1930s, J.Stalin was only aware
of the strategic goal of his policy – establishment of full
control over Lithuania, Latvia and Estonia. According to
archives, there was no detailed plan of political, economic,
military and other steps or even an approved strategy.
Everything was done on-the-run, decisions were made
ad hoc, dependent on the situation. At that, every
following step was prompted by the opponent’s
weakness: where the Soviet policy met serious resistance,
other ways and mechanisms were to be found.
Now, too, it may be assumed with a high probability
that the Kremlin has no distinct, clearly formulated
programme of action with respect to Crimea and whole
Ukraine. Decided (although maybe not quite consciously)
are only the key tasks, lines and applied toolset, while
tactical and operational decisions are made dependent
on the situation. This, however, does not rule out the
existence of a far-going goal and a target-minded policy,
especially retrospective.
This conclusion is proven with manifestations of the
Russian foreign policy. First, K.Zatulin tried to outline the
Ukrainian strategy of the Russian Federation4. Of course,
a member of the Russian State Duma is not an official
person, but his statements reflect the stand of quite influential
Russian circles. K.Zatulin puts forward an ultimatum
where preservation of territorial integrity of Ukraine is
conditioned by its transition to “special relations”5 with
the Russian Federation, in fact – the Russian protectorate
over a weak Ukraine6. It is not an eventual plan of action
but a set of strategic goals and tasks, lines and priorities.
The specific current actions of Moscow (as seen by the
circles represented by K.Zatulin) will depend on the
developments, first of all – Ukraine’s reaction.
Second, Russia’s public and elites in their mass see
Crimea as an accidentally, unfairly lost territory, “our
land”, temporarily held by another state, in this case –
Ukraine, due to Khrushchev’s whim7. Many Russians view
(maybe not always consciously) restoration of control over
Crimea as a strategic task of the foreign policy. So, the
peninsula plays a key role in the Russian policy.
Third, the present-day Russian ruling circles, as always
and everywhere, have a “party of war” (“hawks”) and a
“party of peace” (“doves”). Reluctance of the Ukrainian
side to work with Russia, lack of effectiveness and targetmindedness
of the state policy, sometimes apparent lack
of professionalism, childish emotionality, no matter under
what patriotic slogans they are disguised, contribute
to strengthening of the “party of war”. Meanwhile,
many problems in bilateral relations ensue from ill
communication, weakness and ineffectiveness of the
mechanisms of dialogue and coordination of positions.
Fourth, officially, including on the top level, the
Russian Federation more than once stressed its
unconditional adherence to signed agreements and deep
respect for current, legally agreed borders of Ukraine,
including Crimean peninsula. Meanwhile, the Concept
of the Foreign Policy of the Russian Federation and the
Strategy of National Security of the Russian Federation
clearly formulate the Russian interests in Ukraine in
general and Crimea in particular. First of all, they include
barring of Ukraine’s accession to NATO, “defence of
interests of the Russian-speaking population”, etc., that
is, maintenance of Ukraine in the sphere of influence,
“privileged interests” of Russia. Presented below is an
attempt to reconstruct the actions of influential Russian
political and economic groups, employing both state and
non-state tools.
What is being done, and how
The analysis of developments makes it possible to
single out the following main objectives of the policy of
influential Russian circles regarding Crimea at the current
stage.
1. Testing technologies of socio-political destabilisation.
At that, the peninsula is seen as kind of a testing range for
new approaches and technologies.
2. Making Crimea an effective tool of influence
on Kyiv’s political and economic course by means
of inspiration of controlled, in a way even fake, sociopolitical
instability in the region.
3. Assumption of control over the peninsula’s economy,
its consistent reorientation on Russia.
4. Extension of deployment of the Russian Black
Sea Fleet in Sevastopol and Crimea after 2017. At that,
the Fleet itself provides one of the mightiest tools of the
Russian influence on the situation on the peninsula.
2 Tilly Ch. Coercion, capital, and European states: 1990-1992. – Moscow, 2009.
3 Zubkova Е. The Baltics and the Kremlin: 1940-1953. – Moscow, 2008.
4 Zatulin K. Russia’s strategy in Russian-Ukrainian relations. – Presentation at the conference “Russian-speaking Ukraine: opportunities and problems of
consolidation”, April 27, 2009, – www.materik.ru
5 The neutral status of Ukraine, its federalisation, an official status for the Russian language, preservation of the standing of the Moscow Patriarchy.
6 K.Zatulin states the Russian Federation policy objectives that may be reworded as: weakening of Ukraine’s state machinery; consolidation of pro-Russian
political forces with simultaneous marginalisation of pro-Western ones; curtailment of cooperation with NATO countries, first of all – the USA, especially in the
security sector; adaptation of Ukraine’s socio-cultural and economic sectors to the Russian standards, free access for the Russian capital, special status of the
Crimea and Sevastopol as actually Russian-controlled territories, etc.
7 On May 11, 2009, Google web search facility in response to the inquiry “Ukraine Russia transfer” produced 21 thousand results, to “Ukraine Russia unlawful
transfer” – 160 thousand results. The inquiry “Crimea Russia” produced 7,970 thousand, or almost 8 million entries, “Crimea Russia return” – 1,020 thousand.
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RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 75
CRIMEAN PROJECT OF THE RUSSIAN FEDERATION: AN ATTEMPT OF POLICY RECONTRUCTION
To attain those objectives, activity is underway along the
following main lines: gaining ground in the establishment
and economy (buy-up of property); informationpropagandist
and cultural-educational steps; support for
pro-Russian socio-political movements. Actions in those
domains promote creation and consolidation of appropriate
tools of influence.
Establishment. Advancement of the Russian hand in
Crimean establishment is facilitated by its special status.
Yet in the Soviet times, representatives of Crimean elites
maintained direct ties with Moscow beyond Kyiv and had
a privileged standing, thanks to the unofficial status of the
South Coast of Crimea and, first of all, Yalta as the summer
capital of the USSR, where actually all leadership of the
Soviet Union and socialist states spent their vacations.
Some ties and even embedment in the Russian social
networks have persisted.
Economy. Over the years of independence, the
presence of the Russian business on Crimean peninsula,
especially the South Coast, was steadily growing – not
only in the industry, recreational sector, other real estate,
but, much more importantly, also in the land resources.
On one hand, the Russian economic presence on the
peninsula surely presents a stabilising factor complicating
resort to forcible means. On the other, defence of economic
interests gives another pretext for foreign influence.
Information-propagandist and cultural-educational
activity. Presently, out of some 1,500 media registered
in Crimea, over 98% of newspapers, magazines and
radio stations use Russian language. The autonomy sells
up to 150 Russian printed periodicals, while Russian
programmes proper account for up to 40% of its air. All this
offers comfortable conditions for the Russian information
and propagandist activities.
The relevant infrastructure has been set up and
operates on the peninsula. There is a Russian Cultural and
Information Centre. The Russian Black Sea Fleet publishes
public affairs newspaper “Flag Rodiny”, a TV centre of the
Black Sea Fleet is active, and its programmes are widely
broadcast by local TV and radio companies.
Among local publications active in the tideway of
Russian nationalism and actually involved in pro-Russian
propaganda campaigns, one should primarily mention
“Krymskaya Pravda”, followed by “Krymskoye Vremya”
and “Russkiy Krym”.
Currently, the main subjects of the Russian propaganda
include: instigation of anti-Western, first of all – anti-US
and anti-NATO spirits, fomentation of xenophobia, mainly
in the form of so-called “Tatar, Muslim threat”, inspiration
of separatist and autonomist views among the Russianspeaking
population of the peninsula, etc.
Pro-Russian media provide forum for numerous
Russian figures: political scientists, philosophers,
preachers, propagating appropriate ideological messages.
Up until recently, the Russian information and propaganda
activities have included repeated visits by such figures as
Moscow’s Mayor Yu.Luzhkov, members of the Russian
State Duma V.Zhirinovsky, K.Zatulin, S.Baburin,
S.Markov.
In other words, the media policy aims at conservation
and instigation of Russian nationalist views, and therefore,
the associated public movement on the peninsula and
attempts of indirect control of its activity. Specific
of it are its, so to speak, reactive character, defensive
drive, pessimistic, sometimes even catastrophic world
outlook.
The real danger stems not from pro-Russian
propaganda but from the weakness, sometimes – absence
of a pro-Ukrainian, pro-European alternative. The actual
monopoly of ideas of the Russian nationalism in the
Russian-language Crimean media gives rise to unfavourable
trends in political developments on the peninsula.
Russian structures remain active in the cultural and
educational sector. There are up to 10 branches of Russian
higher educational establishments, including the Black
Sea branch of the Moscow State University. The Russian
influence in the sector is facilitated by obvious reasons.
The school statistics is demonstrative: according to the
official data of the Ministry of Education and Science of
Crimea, 12,860 pupils (7.2%) are taught in the Ukrainian
language in Ukrainian schools and Ukrainian classes of
other schools (largely fictitious), 159,568 (89.6%) – in the
Russian language.
Controlled and ideologically kindred socio-political
movements and non-governmental organisations
present both an important tool and a domain of the Russian
influence. What is meant here is the establishment and
activity of structures institutionally supporting formulation,
development and public representation of pro-Russian
views (in fact, the Russian nationalism, mainly in its post-
Soviet version) on the territory of Ukraine, including
Crimea.
The best known such structures include the “Russian
Bloc”, the Russian Community of Crimea, People’s
Front “Sevastopol-Crimea-Russia”, revived “Proryv”
(Breakthrough), the Eurasian Union of Youth (now
active mainly in the Internet) and others. One should
also mention the “Kyiv Rus” party, set to be joined by
the “Proryv”. Although those structures are generally
rather small and enjoy less support on the peninsula,
compared to early 1990s, they rather effectively perform
their function of public representation of the pro-Russian
position and crystallisation (aggregation) of the Russian
nationalism.
Radical organisations do not exist in vacuum. They
are closely tied with more respectable political forces,
often acting as kind of a lightning rod. And while Crimean
republican organisations of CPU and especially PSPU
themselves do not try to avoid harsh statements, for
Crimean organisation of the Party of Regions, its allies
from the “Russian Bloc” quite often serve, consciously or
unconsciously, as rather a useful tool.
The Ukrainian state is taking necessary counter
measures. In particular, in January 2009, Ukraine’s
Security Service filed to court a criminal case of antistate
activity of the People’s Front “Sevastopol-Crimea-
Russia”. Also through court, the Security Service stopped
the activity of Crimean branch of the Eurasian Union of
Youth.
76 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
One should also mention various Cossack formations
that can well support some political events by means of
force. The range of those quasi-military structures is rather
wide: from allegedly Ukrainian-minded to members of
the Union of Cossack Troops of Russia and the CIS.
Recently, new attempts have been made to set up pro-
Russian organisations in Crimean Tatar community. Termed
as such may be “Milli Firka” led by V.Abduraimov.
There are also attempts to attain Russian interests
via religious organisations, first of all, structures close
to the Ukrainian Orthodox Church of the Moscow
Patriarchy. Although the leaders of the whole Church and
its Simferopol eparchy have taken a considerate stand,
some church and mainly quasi-church figures are trying
to use the ambo for purely worldly purposes, including
promotion of the ideas of the “Russian world”, or even
undisguised service to the current political interests of
Moscow.
The Russian Black Sea Fleet is the key tool of the
Russian policy in Crimea and the whole of Ukraine. The
very presence of a Russian military task force on Crimean
soil strongly promotes the Russian interests. What is meant
here is the known effect of “demonstration of ensign”.
The Fleet possesses appropriate intelligence and special
propaganda units, pursues an active memorial and, as we
noted above, information policy. Under certain conditions,
the purely military, power component can prove no less
important.
The issue of the degree of consistency and targetmindedness
of the listed tools largely remains open. To be
sure, attempts are being made to coordinate their activity,
now more successful than before. The present state of the
Russian society and the state presents the main limiting
factor here.
What should Ukraine do?
Speaking of reasonable priority measures of
the Ukrainian state at neutralisation of negative
consequences of the Russian influence, one should stress
the need to move from reaction to problems to pursuance
of a target-minded state policy in all domains. At that,
emphasis should be made not on restrictive and punitive
but on encouraging and educational measures.
The organisational and administrative potential
of the Ukrainian state in the autonomy should be
enhanced. This primarily means fuller employment of
the opportunities provided by the effective legislation, in
particular, to the Representative of the President of Ukraine
in the AR of Crimea.
One should consider greater integration of Crimean
economy into the Ukrainian, first of all, in production
chains. It is high time to think and act for solution of socioeconomic
issues that will rise after the withdrawal of the
Russian Black Sea Fleet, subsequent demilitarisation
of Sevastopol, the need of moving that potentially very
promising commercial city to another trajectory of
economic development.
A quality Russian-language but Ukrainian-minded
newspaper, radio station and TV studio are badly needed.
The network of Ukrainian educational establishments
should be expanded, creating new rather than converting
the Russian ones. One should finally decide the issue
of setting up branches of the leading Ukrainian higher
educational establishments in Crimea and Sevastopol,
including the Kyiv National University, the National
University of “Kyiv-Mohyla Academy”, and others.
More opportunities should be created for integration
of Crimean youths of all nationalities in the pan-
Ukrainian space, in particular, by admission to the
leading Ukrainian universities in Kyiv, Lviv, Odesa,
Dnipropetrovsk, Donetsk.
Modern Russian cultural initiatives should be
encouraged, to form a Russian-speaking community
in Crimea looking at Kyiv, not Moscow; at Europe, not
present Russia.
There should be a programme of support for civil
society institutes on the peninsula, wider employment
of the potential of Ukrainian non-governmental
organisations for solution of Crimean problems, first of
all, in the educational, information, cultural and other
sectors, information-analytical support for the state
policy.
To improve the practice of movement/rotation of
state officials across different regions of Ukraine, giving
Crimeans an opportunity to work in other regions of the
country.
One should develop a system of prevention and
settlement of conflicts on property (first of all, land), ethnic,
religious grounds; introduce mechanisms of mediation
between parties to potential and actual conflicts.
One should ensure steadfast observance of the
effective legislation, including on information; provide
for inevitability of lawful punishment imposed by the
court for instigation of ethnic, racial, religious enmity,
other illicit actions.
There are other domains for the activity of Ukrainian
governmental and non-governmental structures as well.
The main of them are counterintelligence and other
special measures, effective enforcement of the current
legislation of Ukraine on citizenship and passport
procedures, etc.
To sum up, we once again stress that the nature
and general outlook of socio-political processes in
Crimea and Ukraine as a whole are mainly shaped by
internal factors. By and large, the Russian, as well as
any other foreign influence, is only secondary. External
forces do not determine public processes but use
available opportunities, first of all, let by the Ukrainian
authorities. In principle, the effectiveness of foreign
influence is limited by the Ukrainian society and
Ukrainian state. So, most problems are of the domestic
origin and therefore can be solved only in Ukraine and
only by Ukraine.
CRIMEAN PROJECT OF THE RUSSIAN FEDERATION: AN ATTEMPT OF POLICY RECONTRUCTION
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 77
The general ethno-political situation in Crimea is shaped by the tangled contacts among the three biggest
ethnic groups – Crimean Tatars, Russians and Ukrainians, and the problems arising in course of interethnic,
inter-cultural communication in the social, economic, socio-cultural, political spheres.
Problems in inter-ethnic contacts are also witnessed by data of public opinion polls. For instance, when
asked “May Crimea be called a conflict region?”, 51% of Crimeans gave a positive answer, and only a third
disagreed with that statement1. Those who see Crimea as a possible hotbed of conflicts see their roots
in: contradictions between the Ukrainian authorities and the population; contentiousness in the triangle of
Crimean Tatars – other population – Ukrainian authorities; Kyiv’s nationalist policy, “arbitrariness of Majlis”
and absence of effective authorities; land conflicts; non-democracy and “violence” by Kyiv’s authorities,
mainly in the humanitarian life of Crimeans; inter-ethnic conflicts between Tatars and Slavs, growth of
Islamic extremism. Among potential reasons for conflicts, a number of geopolitical factors were mentioned:
“interests of many states meet in Crimea”. Some of the polled harshly spoke about the Ukrainian state –
“occupation of Crimea by Ukraine”2.
1 Sociological survey held by SOCIUM Centre of Sociological and Marketing Studies on September 11-23, 2008, as part of a project to study the problems of
economic, political and civil identification of the population in different regions of the CIS for study of the public opinion of the Crimean residents on the most
urgent problems of current socio-political life.
The survey was held by quota sampling representative of the adult population of Crimea by the key socio-demographic indicators (age, gender, nationality).
1,478 respondents were polled.
2 The question about the conflict potential was open-ended. Data were obtained soon after the military conflict in the Caucasus, which might influence
respondent opinions. – Web site of SOCIUM Centre of Sociological and Marketing Studies, www.socium.info.
Problems of inter-ethnic contacts
Specific of inter-ethnic contacts in the region is a
number of problem factors in social, cultural, political
communication between Crimean Tatars, on one hand, and
Ukrainians and Russians (“Slavs”) – on the other. Those
problems lie in different ideas of the ways of solution of
issues of local development, distribution of resources in
the autonomy, socio-cultural changes, different foreign
political orientations. By and large, problems arise in the
following sectors:
• socio-cultural (revival of historic memory through
restoration of Crimean place names, revision of the
Soviet history, development of cultures of ethnic
groups);
• state governance (coordination of relations of
central and regional authorities at formulation and
implementation of the state policy towards Crimea,
activity of local authorities that may be guided by
ethnic stereotypes in decision-making with regard
to the public life);
• socio-economic (unemployment and its ethnic
dimension, distribution of resources, especially
land, in the autonomy);
• language (possibility of education in the native
language for ethnic groups (Crimean Tatars,
Ukrainians), support for the Ukrainian language
on the peninsula, solution of the problem of
domination of the Russian language in the political
and public life, media space).
Inter-ethnic relations in Crimea are being shaped
against the background of solution of problems of
integration of Crimean Tatars in Ukrainian society,
traditionally divided into:
• political and legal (legal non-rehabilitation of the
Crimean Tatar people, definition of the status of the
Crimean Tatar people, recognition of Crimean Tatars
as an indigenous people of Ukraine, legalisation of
Crimean Tatar representative bodies (Kurultay,
Majlis), representation in the authorities, first of all –
of the AR of Crimea, and law-enforcement bodies);
UПKРЯRМAIІN ІНE ОINЗ ЕTМHEН КІS ОІIНNНВGКЕLУСEРТ EЕИCНЦТOІЇОN ВСO ПУMРКICОР АМSЇPОНAЖУC:Н EТІСЕРТЬИ ТРОЕРГІІАОЛНЬІВН УИ ЙК ОРНОТЗЕПКОСДТІІЛ ГЛОБАЛІЗАЦІЇ ARTICLES
CONFLICT ASPECTS OF
POLITICAL COMMUNICATION
IN CRIMEA: INTER-ETHNIC
CONTEXT
Yuliya TYSHCHENKO
Head of the Council,
Ukrainian Independent Centre for Political Studies
78 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
• socio-economic (inadequate provision of repatriates
with land plots, high unemployment rate, poor
infrastructure in places of compact residence);
• language and cultural (opening schools with the
Crimean Tatar language of study, restoration of
Crimean Tatar place names, provisions for use
of the Crimean Tatar language in Crimea, return of
cultural values, restoration of “holy places” – old
mosques, azizas, and so on).
In the ethno-political sector, the main indicators of
tension in the process of inter-ethnic communication
and contacts between Crimean Tatars and the Slavic
majority are: poor socio-economic standing of
ethnic groups; perceptions and ideas of the socioeconomic,
politico-legal and cultural-language status
of own ethnic group, compared to the perception of
the status of other ethnic groups; dissatisfaction with
the representation of own ethnic group in different
branches of power3.
Interesting are the results of a survey of mutual
perception and potential factors of conflict in interethnic
relations conducted in Crimea yet in 2003 among
ethnic Russians, Ukrainians and Crimean Tatars4. In
particular, serious differences were observed in the
perception of unemployment by the Slavic and Crimean
Tatar population. In Bilogirsk district, equal difficulties
in employment for all ethnic groups were admitted
by 33.3% of Crimean Tatars, in Krasnogvardiyskiy –
23.1%. 87% of Crimean Tatars in Bilogirsk and 84.6% –
in Krasnogvardiyskiy districts noted serious problems
looking for a job. This cannot be interpreted only as
a result of perception of own socio-economic status
as very low, compared to other ethnic groups. Both
Russians and Ukrainians called the difficulties faced
by Crimean Tatars in that issue more serious than
their own. However, opinions about the employment
of Crimean Tatars were sometimes fundamentally
different. On one hand, they reported that it was
difficult for Crimean Tatars to find a job. On the other –
it was noted that getting a job depended on professional
qualities, not on ethnic affiliation. Meanwhile, Russians
and Ukrainians paradoxically reported a higher standard
of life among Crimean Tatars, compared to Slavs. Such
inconsistency in perception of the status and difficulties
of Crimean Tatars, on one hand, and simultaneous
description of that ethnic group as more successful in
survival – on the other reflects negative stereotypes of
the outgroup: “they are cunning”, “they get out”, and, in
general, “they are dangerous”. However, perceptions of
other communities by Crimean Tatars may also be termed
inadequate, to a smaller extent though. For instance,
Crimean Tatars more than Slavs tend to describe the
standard of life of their ethnos as low, while terming the
standard of life of Slavs “above average” and “high”5.
Problems of integration of Crimean Tatars
Settlement. In connection with mass unorganised
return of Crimean Tatars and entirely insufficient financial,
material and technological backing of their settlement and
amenities, the bulk of repatriates till mid-1990s settled
in the submountane part of the peninsula, namely in
Bahchysarayskiy, Bilogirskiy, Kirovskiy, Dzhankoyskiy,
Krasnogvardiyskiy and Simferopolskiy districts. Places of
compact settlement of Crimean Tatars mainly lie far
from developed areas hosting enterprises, educational,
healthcare, cultural establishments, local self-government
bodies. The situation is aggravated by poor provision with
communication means, which greatly radicalises their
spirits.
Legislation. The problem of legislative support for the
process of return and amenities for repatriates and their
rights under the national and international law remains
pressing. The effectiveness of practical measures taken for
solution of socio-economic and humanitarian problems is
undermined by the absence of a definite regulatory-legal
framework6. Representative bodies of Crimean Tatars
(Kurultay, Majlis) are still not officialised, politically
and legally. This gives their political opponents grounds
to publicly present the national movement of Crimean
Tatars as “national radicalism”, a “fascist” movement,
allegedly seeking to “cut its [Crimea’s] ties with Russia
and the Russian culture, uniting Crimean society in a
comprehensive whole, forcibly tear it out of the East Slavic
world”7. Such rhetoric, reflecting and shaping specific
spirits of the Crimean residents, leads to aggravation of
the socio-political situation and kind of segregation of
that region from Ukraine, conserves ideological clichés
formed in the Soviet times.
Land. The issue of allotment of land plots to Crimean
Tatars for individual construction and business activity
in the South coast of Crimea remains hot. The situation
is aggravated by the sharp growth of internal migration
(from Chornomorske, Rozdolne, Dzhankoy and other
steppe districts to the Crimean coast). This is proven with
squatting and other actions of protest in Sudak, Morske,
Vesele, Simeyiz, Yalta, Alushta and other populated
localities. Due to ethnic bias (and possible involvement
in corrupt schemes), local authorities are reluctant to allot
land to Crimean Tatars, especially in the southern regions
of Crimea.
3 Chornyi Ye. Conflict potential of inter-ethnic relations. – Web site of Ukrainian Centre of Political Management, http://www.politik.org.ua/vid/magcontent.
php3?m=6&n=21&c=195
4 Ibid. Selected as the base for the pilot stage of the survey were Bilogirskiy and Krasnogvardiyskiy districts, with 150 persons polled in each district;
proceeding from the figure, specifications of the sample by gender, age, ethnic affiliation, place of residence were determined.
5 Chornyi Ye. Conflict potential of inter-ethnic relations. – Web site of Ukrainian Centre of Political Management, http://www.politik.org.ua/vid/magcontent.
php3?m=6&n=21&c=195
6 The fate of the Law “On Restoration of Rights of Persons Deported on Ethnic Grounds” is demonstrative in this respect. The Verkhovna Rada in 2004 passed
that Law in the first reading but refused to approve it in the second. After the President of Ukraine proposal to speed up the process, the Law was passed on June
24, 2004. However, the President returned it for amendment, suggesting that MPs settle discrepancies of some provisions in the Law with norms of the Ukrainian
Constitution. As a result, the basic document regimenting most aspects of repatriation is still absent.
7 See: Hrach L. Anniversary of Crimean referendum. – Web site “Leonid Hrach – leader of Crimean communists”, January 15, 2008, http://www.grach.crimea.
com/content/view/401/4/
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Noteworthy, conflicts or inter-ethnic tension are
prompted by the problem of distribution of resources and
provision of Crimean Tatars with land. In 2006-2007 the
Crimea saw the second (since early 1990s) tide of seizure
of land plots. It was the Crimean Tatar response to the
activity of the Crimean authorities that often allotted
large land areas to non-transparent structures and phony
companies.
For instance, in November 2007, there was a conflict
concerning a land plot in Balaklavska St. (Simferopol)
between Crimean Tatars who got that land plot and a private
firm that claimed it. The conflict situation is unresolved
even now.
Another conflict occurred on Ai-Petri Plateau, where
Crimean Tatar entrepreneurs erected their stalls (November
2007). Militiamen guided by a court ruling of demolition
of one structure erected on the plateau without permission
pulled down almost all structures there. On November 6,
the plateau was attacked by nearly 950 policemen,
against some 40 Crimean Tatars who tried to defend the
structures, in the result, several Crimean Tatars were taken
to hospital.
A time bomb under the land problem in Crimea was
laid in the legislation. In particular, on September 12,
2006, the Verkhovna Rada of Ukraine basically passed
the Law “On Amendment of the Criminal and Criminal
Procedure Codes of Ukraine concerning Responsibility
for Unauthorised Seizure of a Land Plot”8. The bill
envisaged criminal responsibility for squatting and more
effective protection of legitimate rights of land plot
owners and land users. Majlis leaders strongly opposed
passage of that law, arguing that it might be applied
selectively: bypassing businessmen and officials who
illegally got big land plots in Crimea, it would be used
against ordinary people who cannot legitimately obtain
land for housing construction. Crimea still does not have
a single land cadastre, despite numerous directives and
Decrees of Ukraine’s President. The situation may be
attributed to the fact that today, both local and central
authorities are not interested in an orderly and
transparent system of land relations, since this would
reduce opportunities for uncontrolled distribution of
land and bar corrupt schemes.
Representation. The problem of representation of
Crimean Tatars in the authorities remains pressing. The
Majlis leadership insists on adequate employment of
Crimean Tatar specialists, in particular, in republican and
local executive bodies, arguing that their current number is
not only inconsistent with the share of Crimean Tatars in
the population but expressly witnesses discrimination on
ethnic grounds9.
Politicisation of problems of inter-ethnic
contacts: factor of local policy and regional
mass media
Issues of inter-ethnic relations are often speculated
on by Crimean politicians who assume the role of
defenders of the “Slavic population” for their political
image, to gain votes in Crimea. During the focus group
study “Topical issues of management of inter-ethnic
relations in Crimea”10 the participants reported conflicts
in everyday life between Slavs and Crimean Tatars but
attributed them to socio-economic problems rather than
inter-ethnic relations.
“Inter-ethnic passions are somewhat pumped before elections,
to be true, when our high politicians begin to “work up” the
population, canvass at elections. Of course, every community
reaches for its party. Then, inter-ethnic tension is felt a little.
Even among neighbours... People normally communicate before
elections, everything begins as soon as politics interfere in people’s
lives” (Sovetskiy).
“We have to return to problems among parliamentary groups,
among party organisations, that provoke. I would say, they provoke
instability in inter-ethnic relations. Not the people. They provoke,
lead a small group of people, and the media then blow up, saying
that people follow them. I do not want to offend MPs but I think
that 80% of MPs do not represent people. Our MPs represent their
parties, and a party embodies plans and ideas of a group of people,
not of the whole people” (Bilogirsk).
“A public meeting was held in Myrne, with information read
out in a hall. Rodyvilov and others gathered people. There were
seizures in Myrne, also by Russian-speaking, Slavs, of that land…
They gathered people and told them that their land problem would
be resolved. Everybody came to that hall, 500 people. And he
began [saying] from the rostrum that land should not be distributed
on ethnic grounds. He threw such words in the hall. Within
20 minutes, everybody realised that that meeting was intended
not to solve the land issue, to move it somehow, but to aggravate
and to earn an image among Russian-speakers, among Russians,
to aggravate the conflict. Respectively, the other party says: on
what grounds did you gather us? On what grounds did you take
land from us? Again, polemics begin: who are you, who am I, and
so on”(Bahchysaray).
Tension in inter-ethnic relations on the peninsula is
stirred up by media, often used by politicians to create
the required “public opinion” and form negative ethnic
stereotypes. Some media by their publications contribute
to the spread of negative ethno-political stereotypes
and myths. Focus group participants in the first place
attributed this to politicisation of inter-ethnic differences,
political background, stand of media owners and existence
of rather durable stereotypes in the consciousness of ethnic
communities.
8 Law “On Amendment of Some Legislative Acts of Ukraine concerning Enhancement of Responsibility for Unauthorised Occupation of a Land Plot” passed
on January 11, 2007. – Ed.
9 The total number of Crimean Tatar state servants (as of 2007) is 407 (7.9%), in that: in the Crimean executive bodies – 104 (8.4%), at District State
Administrations – 178 (12.5%), in local self-government bodies – 114 (4.8%), in the AR of Crimea Property Fund – 4 (4.3%). Crimean Tatars elected national
deputies of Ukraine – 1 person; members of the Verkhovna Rada of the AR of Crimea – 7; city and district councils: 125 (by the People’s Movement of Ukraine
(Rukh) list), 2 (Crimean Tatar Bloc), 8 (BYuT), 2 (other parties); village and settlement councils – more than 900. 24 out of 309 elected village and settlement
heads (7.7%) are Crimean Tatars. All in all, the share of Crimean Tatars among different council members in the AR of Crimea exceeds 15%.
10 For more detail see: Data of focus group study during the 4th phase of the project “Towards a peaceful and tolerant society in Ukraine. Inter-ethnic relations
in the AR of Crimea: education and training”. – UCIPR, April 2009.
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“There is still a distinction between Crimean Tatars and the
Russian-speaking population. And there are Crimean media
that earn rating and make their image on that. Take any issue of
“Krymskoye Vremya” newspaper, there will always be an article
contributing to that, focusing attention” (Bahchysaray).
“Republican media, now I guess to a smaller extent than before
but still, do not promote tolerance in Crimea. Because some of our
newspapers, to put it mildly, misbehave with respect to some part
of the population. We well understand that all media are sponsored.
Those who begin to badmouth some part of the population today,
unfortunately, lead to a split” (Dzhankoy)11.
So, not last among the factors causing inter-ethnic
tension in Crimea is presented by numerous stereotypes
in the consciousness of the Slavic majority of residents
regarding the Crimean Tatar community. The influence of
that factor on the public opinion and inter-ethnic relations is
aggravated by “a target-minded anti-Tatar and islamophobic
PR-campaign, Russian-speaking Crimean publications in
numbers carry materials that may be called not just incorrect
or defamatory but stirring up inter-ethnic enmity”12.
Language sphere
By and large, in view of the ethnic specificity, the ethnolanguage
situation in the region differs from the rest of
Ukraine. According to the all-Ukrainian census of 2001,
77% of the Crimean residents called Russian their mother
language, 10% – Ukrainian, 11% – Crimean Tatar. The
share of Russian-language schools in the autonomy exceeds
the share of ethnic Russians due to Russian-language selfidentification
of representatives of other ethnic communities,
first of all, Byelorussians, Jews, Germans, and so on. If we
refer to the language of figures, Russian was reported as
the native language by 97% of the Crimean Jews, 89% –
Germans, 82% – Byelorussians, 79% – Koreans, 78%
Bulgarians, 73% Greeks and 61% – Ukrainians. All in all,
Russian was termed as the native language by 23% of the
non-Russian population of the region13.
When asked “Do you consider it necessary to grant the
Russian language an official status in Ukraine?”, 89% of
Crimeans give a positive answer, only 4.4% – negative.
According to sociological surveys, now, mainly the Russian
language is spoken in Crimea by 92.3%, Ukrainian – 3.3%.
2.2% of citizens speak at home Ukrainian and Russian
(as the case may be), 2.2% – other languages14.The specificity
of the language situation influences the educational policy
in Crimea, actually freezing mentioned specificity.
Crimean Tatars themselves raise the issue of an
integral policy of preservation and development of the
Crimean Tatar language. According to the Majlis leader
M.Dzhemilev, “Relevant amendments to the effective
Constitution of the autonomy should be sought to equate
the status of the Crimean Tatar language to the status
of the Ukrainian and Russian languages”15. Article 10
of the Crimean Constitution proclaims that the AR of
Crimea, alongside with the official language, provides
for functioning, development, use and protection of the
Russian and Crimean Tatar languages and languages of
other nationalities on its territory. As is noted, “the Russian
language as the language of the majority of the population
convenient for inter-ethnic communication is used in
all sectors of public life”, and Article 11 proclaims that
according to the Ukrainian legislation, “official documents
certifying the status of a citizen” in the AR of Crimea “are
executed in the Ukrainian and Russian languages, and on
a citizen’s request – also in the Crimean Tatar language”16.
M.Dzhemilev noted that “the greatest problem lies in
preservation of the national identity by our compatriots, if
we fail to build a system of education in the native language
and cover all our children with such education, the nation
will face assimilation, dissolution in the Russian-speaking
environment”17.
The authorities might see their task in search of a
compromise in the language policy and educational sector.
Instead, those sectors see an undeclared war of decisions
of central and local authorities. For instance, the Concept
of Development of Education in the AR of Crimea through
2012 bears only one provision concerning “creation of
conditions for deeper study of the Ukrainian, Russian and
Crimean Tatar languages”18. However, it does not elaborate
the facts, causes and effects of the language disparity
observed in the educational sector.
One may note improper support for education in the
Crimean Tatar language on the peninsula, difficulties
arising due to the absence of a regional approach to the
language dimension of the educational policy in the
Crimea. Shortage of teachers, lack of textbooks, limited
financial capabilities of local self-government bodies to
fund educational establishments also pose a problem.
Authorities
Local conflicts of the recent years in Crimea may also
be interpreted as conflicts between Crimean Tatars and
authorities taking place because of the reluctance of local
self-government bodies to solve problems of repatriates.
11 Survey held by SOCIUM Centre of Sociological and Marketing Studies on September 11-23, 2008, as part of a project of study of problems of economic, political
and civil identification of the population in different regions of the CIS.
The survey was held by quota sampling representative of the adult population of the Crimea by the key socio-demographic indicators (age, gender, nationality).
1.478 respondents were polled. – Web site of SOCIUM Centre of Sociological and Marketing Studies, www.socium.info.
12 Kresina I. On the issue of manifestations of discrimination on racial and ethnic grounds. – Web site of Ukrainian Centre of Political Management, http://www.
politik.org.ua
13 Meanwhile, experts in language policy argue that “the census held in Ukraine in 2001 does not allow more accurate identification of the ratio of bearers of
the Ukrainian and Russian languages, since the wording of questions describing language features of respondents did not take into account the fact that part of
the Russian-speaking Ukrainians still reported Ukrainian as the native language, symbolically related with their national self-identification. The questions in Item
7 of the questionnaire describing the language identification respondents were formulated as follows: “Your language features: (a) native language; (b) if your
native language is not Ukrainian, report if you are fluent in the Ukrainian language; (c) another language you are fluent in”. See: Masenko L. Language situation
in Ukraine. – Independent culturological journal “Ї”, 2004, No.35.
14 6.6% was undecided. Public opinion poll “Ukrainian society 2008” held by the Institute of Sociology of the National Academy of Sciences of Ukraine in April,
2008, by the distributed polling method. 1,800 respondents above 18 years were polled in all regions of Ukraine, the AR of Crimea and Sevastopol. The sample
statistic error is 2.3%.
15 Speech by M.Dzhemilev at the 1st Session of the 5th Kurultay of the Crimean Tatar People (December 7-9, 2007).
16 Law of Ukraine “On Approval of the Constitution of the AR of Crimea”.
17 Speech by M.Dzhemilev at the 1st Session of the 5th Kurultay of the Crimean Tatar People …
18 Approved by the Verkhovna Rada of the AR of Crimea Resolution No.215 of October 18, 2006.
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CONFLICT ASPECTS OF POLITICAL COMMUNICATION IN CRIMEA: INTER-ETHNIC CONTEXT
Although such conflicts have purely economic grounds,
they are “not protected” against use by political forces for
getting potential electoral dividends through speculations
on the known image of “defenders from aliens”.
Local conflicts were usually settled with interference
of the central authorities, mainly not to prevent one but to
soften a conflict that came into the open. What deserves
attention however is that previously, the conflict between
Crimean Tatars and the authorities was seen as inability
to come to terms, first of all, with Crimean leaders.
Now, the situation is changing due to stagnation of legal
solution of the problems of Crimean Tatars. In particular,
representatives of Crimean Tatars ever more note that the
state authorities “openly ignore the rights of the Crimean
Tatar people” due to “long non-passage of laws aimed at
restoration of rights of the Crimean Tatar people, including
its inalienable right to national-territorial autonomy within
the Ukrainian state, persistent unwillingness to assist
with return of tens of thousands Crimean Tatars, wilful
delay of fair solution of issues related with provision of
Crimean Tatars with land plots, absolute legal and judicial
vulnerability of Crimean Tatars defending their legitimate
rights and interests, tough opposition to restoration of
Crimean place names inalienably connected with the
historic memory of the Crimean Tatar people...”19.
The Council of Representatives of the Crimean Tatar
People under the President of Ukraine has not met the Head
of State in full membership since 2004. Regular, open
communication of the Ukrainian political leadership
with the Crimean Tatar representative bodies is
absent.
Despite efforts of the state at implementation of
the State Programme of settlement and amenities for
deported Crimean Tatars and persons of other nationalities
who returned to Ukraine for residence, their adaptation
and integration in Ukrainian society through 2010,
local problems are being resolved too slowly. In their
dialogue with Crimean Tatars, party leaders in Kyiv are
often guided by possible electoral support, while noting
disunity in voter opinions. Present political contacts
are motivated by tactical considerations regarding
Crimean Tatar support for specific political leaders in
official Kyiv. There is no strategic vision of cooperation
and low effectiveness of implementation of the policy of
harmonisation of the overall socio-political situation in the
AR of Crimea20.
On the local level, there are isolated attempts of political
contacts between leaders of the Crimean authorities
(Verkhovna Rada of the AR of Crimea, Council of
Ministers of the AR of Crimea) and political leadership of
Crimean Tatars. They are, too, mainly related with current
implementation of the State Programme and attempts of
extinguishing arising conflicts, first of all, in the field of
land relations. One may cite as an example establishment
of a joint commission of the Verkhovna Rada, Crimean
Government and Majlis for solution of the land problem
in Balaklavska St. (Simferopol, 2007), although it failed to
help resolve the conflict.
Noteworthy, the policy of “measures of enhanced
support” for repatriates, e.g., implementation of state
and local programmes of amenities and integration, is
quite often seen by the Slavic population as unjust, not as
“evening rights”.
The mechanism of communication on the district
level presents a system of public boards. For instance,
for discussion of pressing for the district issues in
Bahchysaray, a Public Board was established at the
District State Administration, made up of representatives
of national-cultural associations, local self-government
bodies, political parties. Meanwhile, for constructive
cooperation between the public and authorities on the
district level, society needs understanding of the decisionmaking
procedure, to pass from “jive talking and criticism”
to expert assessment of solution of urgent problems
in general and in the field of inter-ethnic relations in
particular.
An inter-confessional board was established under the
District State Administration Head in Dzhankoy, including
representatives of Orthodox, Muslim, Protestant religious
communities. Cultural events aimed at promotion of
cultures of ethnic groups and communities (competitions,
festivals, etc.) are held on the district level.
Paradoxically, it seems that political communication
and inter-ethnic contacts are obstructed on the higher
levels of regional and central authorities, while
poly-ethnic village communities show numerous
examples of inter-cultural, inter-ethnic contacts and
communication.
Socio-cultural sphere
The situation with local place names, restoration
of historic names in Crimea remains actually frozen.
In 1944, more than 90% of geographic names of
populated localities were instituted by special decrees
of the USSR Supreme Council in order to “wipe from
the face of the earth” all mention of existence of Crimean
Tatars. Only one decree of the Presidium of the Supreme
Council of RSFSR dated May 18, 1948, renamed 1,062
populated localities in Crimea. It produced similar names –
Pionerskoe, Radostnoe, Pervomaiskoe, Tankovoe, Udachnoe,
etc. Crimean place names reflecting its history were
actually abolished. However, with the return of Crimean
19 Resolution of all-Crimean mourning meeting devoted to the memory of victims of the genocide of the Crimean Tatar people – deportation of May 18, 1944,
and decades of its forcible retention in the places of exile. May 18, 2009, Simferopol, http://www.kirimtatar.com
20 Another Decree of the President of Ukraine dealing with the Crimean issues “On Implementation of the Decision of the National Security and Defence Council
of Ukraine of February 8, 2006 “On Social Situation in the AR of Crimea” No. 822 of October 9, 2006, noted that “in the result of non-implementation of a great
deal of tasks envisaged by the National Security and Defence Council of Ukraine Decision of February 8, 2006, No. 154, the socio-political situation in the AR
of Crimea continues to remain difficult and controversial, destabilising factors and sources of threats to the national security of Ukraine in the region are not
neutralised”, and “activity of the concerned central and local executive bodies at attainment of tasks in that field is mainly ineffective”. The National Security and
Defence Council of Ukraine Decision of May 16, 2008, “On Progress of Implementation of Decisions of the National Security and Defence Council of Ukraine on
Situation in the AR of Crimea” enacted by Presidential Decree No. 589 of June 26, 2008, too, termed implementation of measures and provisions of that Decree
ineffective. This first of all refers to “tasks of regimentation of use of land resources on the territory of the Crimean peninsula and development of the media space
of the AR of Crimea”.
82 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
Tatars, old names again came into being and are
unofficially used alongside with official. Nevertheless, the
issue of restoration of place names remains on the agenda
as a political demand of Crimean Tatars. Noteworthy,
according to the effective legislation, decisions of
renaming villages rest with local authorities and are passed
at local referendums supporting such decisions, but such
initiatives are not supported on the local level, first of all,
by the Slavic population. Meanwhile, in cities and districts
where Crimean Tatars are in a majority, streets have new
Crimean Tatar names.
Three-dimensional problems of actualisation of
historic heritage especially contribute to aggravation
of the socio-political situation on the peninsula. On one
hand, they include contradictions between the pro-Russian
and Ukrainian interpretation of history and the historiccultural
heritage, on the other – the difference between
the “pro-Slavic” interpretation of history and the historic
memory of Crimean Tatars. One example is presented by
elements of the “language of enmity” in history textbooks
terming actions of Crimean Tatars as “conquests”, “raids”,
of Ukrainian Cossacks and Russians – as “marches”.
Mass clashes in Bahchysaray in the summer of 2006
became a showy example of misunderstanding and
disrespect for common history. There had long been a
market on the site of an ancient Muslim cemetery, although
the USSR Council of Ministers yet in 1963 entered the
monuments located there in the register monuments, and
in 2001, they were entered in the National Register of
Real Property Facilities of Cultural Heritage of Ukraine.
Muslims for years demanded transfer of the unauthorised
market21, but when the market management began
construction works in the conservation zone of one of the
old mausoleums, Crimean Tatars blocked the entry to the
market and arranges a mass picket, demanding transfer
of the market to another place. The authorities reported
readiness to allot land for market construction in another
place, but the market management rejected the proposal.
Picketers were assaulted by representatives of local
Cossacks and the Russian Community. A few persons
were injured. The conflict was settled on the level of the
President and Prime Minister of Ukraine22.
In the Third Report on Ukraine, the European
Commission against Racism and Intolerance expressed
concern about the situation in Crimea, where tension
was very high in relations between Crimean Tatars and
ethnic Russians, also in connection with land and historic
monuments. The document reads: “...it is also regrettable
that some politicians, authorities and religious leaders
have failed to act responsibly, by fanning the flames of
ethnic hatred”. Hence, ECRI was concerned that “the
gap between different communities living in Crimea has
widened since its second report”. Although in 2006, then
State Committee for Nationalities and Migration issued
a statement condemning such actions after a spate of
particularly violent ethnic clashes, the authorities should
be more proactive in combating the climate of mutual
suspicion and racial tensions that currently prevails in that
region”23.
Acts of vandalism were recorded at Christian and
Muslim cemeteries. For instance, on February 11, 2008,
trespassers ruined or damaged over 200 gravestones on
a Muslim cemetery in the settlement of Nyzhnyogirske.
Previously, acts of vandalism were recorded in the
villages of Marfivka (satanic inscriptions on Slavic and
Muslim graves) and Voikove (124 Slavic graves ruined) in
Leninskiy district24. Majlis leader M.Dzhemilev stressed
the frequency of “vandalism against mosques, cemeteries,
monuments to victims of deportation of Crimean Tatars,
Majlis offices, etc.”. In particular, “since the convocation
of Kurultay in 1991, Majlis central office in Simferopol
alone suffered more than 10 night attacks... but none of
those crimes was solved and no one was detained. More
than that, attempts a being made to shift responsibility for
those crimes to Crimean Tatars themselves”25.
By and large, Crimea now actually witnesses a “war
of monuments”, a conflict between symbols of the Soviet
and imperial age, today’s Ukraine, and historic symbols
of Crimean Tatars, also in the process of “appropriation
of their history”. In particular, this refers to the erection
of monuments to Catherine ІІ in Simferopol and possible
construction of a monument to Stalin in Livadia, opposed
by the Ukrainian and Crimean Tatar community. Yet in 1999
representatives of Crimean Tatars initiated inauguration of
a monument to the human rights champion P.Hryhorenko,
while party “Union” urgently began to prepare a site
for a monument to Catherine II, in the eyes of Crimean
Tatars personifying annexation of Crimea by Russia. The
memorial sign in honour of the Russian Empress was
established in Simferopol in 2007 on the initiative of the
Simferopol Mayor’s Office, Moscow Mayor’s Office and
Cossack formations from Russia, Ukraine and other CIS
states.
21 The conflict situation arose yet 10 years ago. According to the Bahchysaray District State Administration Land Resources Department Head Aliev, the issue
has long been considered in courts. Aliev reported that the market obtained from Bahchysaray authorities some 0.20 hectares of land, and seized another 0,47.
Director of Bahchysaray Historic-Cultural Preserve Ye.Petrov noted that the market illegally occupied the territory of the ancient Muslim cemetery and an
architectural complex of the national significance. In July, 2006, than Permanent Representative of the President of Ukraine in the AR of Crimea H.Moskal said
that the autonomy leadership in the person of the Verkhovna Rada and the Council of Ministers and Bahchysaray City Council kept aloof from the solution of the
issue of the District Consumer Society’s market, which caused confrontation between Crimean Tatars and the Slavic population. On July 21, Ukraine’s President
V.Yushchenko in a letter to the Crimean authorities requested information about the solution of a number of problems on the peninsula.
22 See: Land conflict and inter-ethnic confrontation in the AR of Crimea . – UCIPR web site, http://www.ucipr.kiev.ua; “Crimean electric ray”: problem of “hot
spots” in Crimea. – Ibid.
23 For more detail see: European Commission against Racism and Intolerance. Third Report on Ukraine adopted on June 29, 2007, Strasbourg, 2008, p.18.
24 According to official versions, cited cases have no “inter-ethnic or inter-religious grounds. The vandals were local residents living an asocial life, abusing
alcohol, with a low consciousness”, Home Ministry reported. – UNIAN, February 11, 2008.
25 Crimean Tatars in Crimea and the world: Problems and prospects of national revival. – Report by Majlis Head at the World Congress of Crimean Tatars,
Simferopol, May 19, 2009.
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CONFLICT ASPECTS OF POLITICAL COMMUNICATION IN CRIMEA: INTER-ETHNIC CONTEXT
Another example of the “war of monuments” deals
with installation of a three-meter-high stele in memory
victims of the Ukrainian Insurgent Army in Simferopol:
“In memory of victims of the Soviet people fallen from
the hands of Nazi aiders – OUN-UPA fighters and
other collaborators”; funds for its establishment were
collected by communists of Ukraine and Crimeans26. The
monument named “Shot in the back” was inaugurated in
2007 in Sovetskaya Square. PSPU was the first to oppose
installation of the stele in that place27.
Historic memory in the region is extremely
politicised, also by geopolitical subjects. An example
of such manipulations is presented by the recent events
concerning commemoration of the Day of Victims of
Famine. In particular, participants of the international
campaign “Everburning Candle” brought to the Crimean
peninsula a 200-kg symbolic candle. CPU activists tried
to prevent the event, interpreting it as accusation of Russia
and the Russian people of genocide of Ukrainians.
The state of most monuments of the Crimean Tatar
history and culture is extremely poor and requires largescale
research and restoration28. The issue of construction of
the Grand Mosque in Simferopol remains unresolved due to
the stand of the local authorities obstructing implementation
of their own decisions of land allotment, problems exist
with restitution of Islamic religious structures.
Conflict of identities
There is kind of a conflict of identities in Crimea
between the Crimean Tatar and Slavic communities caused
and motivated both by the age features of Crimeans and
their political and ideological likings, as well as ethnic and
cultural-historic factors. It is manifested in a set of sociocultural
and geopolitical inputs, such as foreign political
preferences, since, by contrast to the Slavic majority, the
Crimean Tatar community does not position itself as pro-
Russian. “Our partners have always been political forces
declaring ideas of democracy, in a word, I would term
them the national democratic forces of Ukraine, speaking
of accession to the EU and NATO” – says First Deputy
Head of Majlis R.Chubarov29. “A large part of the Crimean
population is made up of people resettled here from internal
regions of Russia after deportation of Crimean Tatars and
their descendants. So, their gravitation to their historic
Motherland is understandable. But by contrast to us, who
50 years fought for return to the Motherland, they want to
return to their Motherland not as we did – having taken
our suitcases and gotten on a train. They want to Russia
together with our historic Motherland. And we can never
agree with that. Please, go back, the road is open – but
what does this have to do with our land? ... Some 70% of
the Russian-speaking population of Crimea see its future in
the Russian Federation, but this is not a reason for transfer
of Crimea to another state”30 – Majlis leader M.Dzhemilev
said at the World Congress of Crimean Tatars.
Proposals
Harmonisation of the ethno-political situation in the
autonomy requires a comprehensive strategic policy (language
and cultural, information, socio-economic, regional) aimed at
encouragement of a dialogue between representative bodies
of Crimean Tatars and regional and central authorities.
Within the framework of that policy, the issue of legislative
restoration of the rights of Crimean Tatars should be solved.
Furthermore, the following steps are needed:
• implementation of measures for enhanced support for
repatriates and the Ukrainian community in Crimea – to
level the socio-economic disparity in Crimean society,
explain preferences for the Crimean Tatar community
from the viewpoint of solution of the relevant problem.
That policy should be transparent and publicly
controlled, to avoid possible corrupt schemes;
• passage of the Law “On Restoration of Rights of
Persons deported on Ethnic Grounds”, involvement
of representative bodies of ethnic communities in
Ukraine’s political and legal framework;
• provision of effective safeguards (for instance, “an
agreement of the elites”) against political forces’
speculation on inter-ethnic contradictions (first
of all, during election campaigns), which has a
negative effect on the general climate in Crimea;
introduction in Crimea of an educational policy
upbringing tolerance, promoting inter-cultural
dialogue, patriotic education, organisation and
conduct of inter-regional exchanges – to enhance
the awareness of society (first of all, children) about
national traditions of the peoples of Ukraine, cultural
exchanges and mutual enrichment of cultures;
• popularisation of cultures of ethnic groups and
communities, support for initiatives of local
communities for solution of social and economic
problems;
• extension of interest-free loans to Crimean Tatars
for housing construction (in the context of amenities
for all repatriates);
• establishment of all-round cooperation between
representatives of the local authorities with local
and regional Majlises, implementation of measures
in support for the study of the culture, history,
language and religion of ethnic groups;
• development of cooperation with international
institutions rendering assistance in solution of
urgent issues of infrastructure development in the
autonomy.
One should note, however, that those objectives cannot
be attained without general democratisation of Ukrainian
society, transparency of decision-making, a considerate
human resources policy, removal of the effects of negative
ethnic stereotypes, fighting corruption.
26 Number of opponents of recognition of OUN-UPA goes down. – UNIAN, January 17, 2008. According to a public opinion poll, 13.4% of Crimeans fully or
with reservations supports provision of privileges and status of participants of World War II to OUN-UPA fighters, almost 77% does not. – Sociological survey
conducted by the Democratic Initiative Foundation and Ukrainian Sociology Service company on 5-18 December 2007 by personal interview. 1,800 respondents
above 18 years were polled in all regions of Ukraine. The sample statistical error does not exceed 2.3%.
27 The reason however lied not in ideology but in business interests: a member of the City Council representing that party is the director of the “Simferopol”
cinema house located nearby.
28 As of 2003, there were more than 900 architectural sites – monuments of the Crimean Tatar history and culture in Crimea. According to experts, less than
10% of them are entered to the Register of National Cultural Heritage, kept on state registration and protected by the state. See: Brief review of the state of ethnic
identity, cultural heritage, traditions and religion of the Crimean Tatar people in Ukraine (2003).
29 Creation of national autonomy of Crimean Tatars in Crimea – indicative issue of pre-election in Ukraine. – Radio “Svoboda” web site, October 23, 2008,
http://www.svobodanews.ru
30 Interview with M.Dzhemilev “Significant part of Ukraine lied within Crimean Tatar Khanate”. – “Kievskie Vedomosti”, November 7, 2008, http://www.kv.com.
ua/archive/19093/political/19117.html
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Problems of definition of the legal status of Crimean Tatar people as indigenous people of Ukraine,
involvement of its institutes in the legal system and legislative restoration of the rights of persons
deported on ethnic grounds remain unresolved. Uncertainty of the situation presents a factor of tension in the
relations between the authorities and the political leadership of Crimean Tatar people, complicates creation
of amenities for repatriates.
Meanwhile, solution of those problems requires consideration of some risks, in particular, its effect on
inter-ethnic relations in Crimea and Ukraine as a whole.
The article examines possible ways to solve political and legal problems of Crimean Tatar people.
1 Scientists yet in 1996 noted the possibility of a discussion caused by introduction of the term “indigenous peoples” to the Constitution. For more detail see:
Kotyhorenko V. Crimean Tatar repatriates: problem of social adaptation. – Kyiv, 2005, p.189.
2 See, e.g.: Bekirov N. Crimean Tatar problem in connection with legislative support for rights of nationalities in Ukraine. – Materials of the conference
“Crimean Tatars and Ukrainian society: problems of political and social integration”. – Kyiv, November 26-27, 1998, pp. 18-21.
A national minority or an indigenous people?
It should be noted that the approaches to the definition
of the status of indigenous peoples and legitimisation of the
institutes of Crimean Tatar people cause more discussion
than the issues of legislative restoration of rights of persons
deported on ethnic grounds (repatriates).
The Ukrainian Constitution establishes the principle of
equality of all citizens, irrespective of their ethnic origin;
therefore, bills providing a special status for some ethnic
group may be interpreted as contrary to that principle.
Meanwhile, the wording of the Basic Law itself uses
several terms to denote specific ethnic communities. Of
particular importance in this respect is the reference, along
with “national minorities” (Articles 10, 11, 92, 119), to
“indigenous peoples” (Articles 11, 92, 119).
The term “national minorities” is defined in Article 3 of
the Law “On National Minorities in Ukraine” as “groups of
citizens of Ukraine who are not Ukrainians by nationality,
demonstrate a feeling of national self-identification and
community”. On this basis, all non-Ukrainian ethnic
groups living on the territory of Ukraine may be considered
national minorities, enjoying an equal status.
However, the mention of “indigenous peoples” and
“national minorities” in the Constitution enables their
treatment as two different categories of communities1.
Furthermore, the Constitution (Article 92) expressly
provides that the rights of indigenous peoples, as well as the
rights of national minorities, are determined “exclusively
by the laws of Ukraine”. Hence, the legislative uncertainty
of the status and, respectively, rights of indigenous peoples
may be seen as a gap in Ukraine’s legal framework, which
gives representatives of peoples considering themselves
indigenous grounds to demand legislative regimentation
of their status2.
Another reason for such demands is presented by the
definition of the status of indigenous peoples, their rights
and principles of relations with the state in documents of
international organisations joined by Ukraine. The main
such documents are the UN Declaration on the Rights of
Indigenous Peoples (2007) and the International Labour
UПKРЯRМAIІN ІНE ОINЗ ЕTМHEН КІS ОІIНNНВGКЕLУСEРТ EЕИCНЦТOІЇОN ВСO ПУMРКICОР АМSЇPОНAЖУC:Н EТІСЕРТЬИ ТРОЕРГІІАОЛНЬІВН УИ ЙК ОРНОТЗЕПКОСДТІІЛ ГЛОБАЛІЗАЦІЇ ARTICLES
POLITICAL AND LEGAL PROBLEMS
OF CRIMEAN TATAR PEOPLE:
APPROACHES TO SOLUTION
Yuriy YAKYMENKO,
Director,
Political and Legal Programmes,
Razumkov Centre
RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009 • 85
Organisation (ILO) Convention concerning Indigenous
and Tribal Peoples in Independent Countries (1989).
The ILO Convention preceded the UN Declaration
and was genetically related with previous ILO documents
dealing with narrower issues of protection of first labour, and
with time – other rights of indigenous peoples3. Although
the document is not ratified by Ukraine, in the opinion
of foreign experts, it establishes the “legal international
standard for the use of the term “indigenous”4.
Pursuant to Article 1 of the Convention (Item b), it
applies to “peoples in independent countries who are
regarded as indigenous on account of their descent from the
populations which inhabited the country, or a geographical
region to which the country belongs, at the time of
conquest or colonisation or the establishment of present
state boundaries and who, irrespective of their legal status,
retain some or all of their own social, economic, cultural
and political institutions”. Important for identification of
peoples as indigenous is part 2 of that Article, whereby
“Self-identification as indigenous… shall be regarded as a
fundamental criterion for determining the groups to which
the provisions of this Convention apply”.
Those criteria may well be applied to Crimean Tatar
people. The relevant documents in the first place refer
to peoples that inhabited some territories prior to their
colonisation by other peoples, were driven from their
places of residence by force, deprived of land, etc. In
particular, the mentioned international documents derive
the special status and rights of indigenous peoples from
“their descent from the populations which inhabited the
country, or a geographical region to which the country
belongs, at the time of conquest or colonisation…”5.
Those documents imply definition of indigenous peoples
as the ones that did not accept the ways of the “coloniser”
peoples, preserved their own, different from them way of
life, and their institutes.
Proceeding from the statements of its leaders, Crimean
Tatar people consider “annexation of Crimea by Russia
in 1783” an act of conquest, terms the Russian rule as
occupational and argues that that act caused mass emigration
of Crimean Tatars from Crimea6. The community of
the “conqueror”, or “coloniser”, enables perception of
Crimean Tatar people in the same context with many
peoples of Russia living on territories “conquered” by the
former empire and, according to the federal legislation of
the Russian Federation and legislation of the federation
members, considered indigenous on those territories7.
Furthermore, Crimean Tatar people suffered from another
expatriation – total deportation on ethnic grounds in
1944.
While Ukraine did not sign the discussed ILO
Convention, the UN Declaration does not require signing
or ratification, and Ukraine must observe it as a member of
that international organisation8. That is why passage of the
Declaration was hailed by the leadership of Crimean Tatar
people, who saw it as an “international legal document for
solution of issues evaded by the authorities for the past
17 years”9.
3 For more detail see: The ILO and Indigenous and Tribal peoples. – UN Guide for Indigenous Peoples. Leaflet No.8, http://www.unhchr.ch/html/racism/
00-indigenousguide.html
4 See: Dallmann W., Goldman H. Indigenous – native – aboriginal: Confusion and translation problems. – ANSIPRA Bulletin, June 2003, http://www.npolar.
no/ansipra
5 See: Item b, Article 1 of the Convention.
6 See: Crimean Tatars in Crimea and the world: Problems and prospects of national revival. – Report by the Head of Majlis of the Crimean Tatar people at the
World Congress of Crimean Tatars, Simferopol, May 19, 2009. – Web site “Crimea and Crimean Tatars”, http://kirimtatar.com
7 There is, however, some legal specificity dependent on the strength of a specific people. For more detail see: Dallmann W., Goldman H. Indigenous – native –
aboriginal: Confusion and translation problems.
8 Ukraine abstained at voting for the Declaration.
9 R.Chubarov. UN Declaration on the Rights of Indigenous Peoples and assignment for Ukrainian politicians. – “Crimean Studies” web site, No. 3-4, June-
September, 2007, http://cidct.org.ua
10 See: Official UN web site, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
Article 1
Indigenous peoples have the right to the full enjoyment, as a collective
or as individuals, of all human rights and fundamental freedoms
as recognized in the Charter of the United Nations, the Universal
Declaration of Human Rights and international human rights law.
Article 3
Indigenous peoples have the right to self-determination. By virtue
of that right they freely determine their political status and freely pursue
their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to selfdetermination,
have the right to autonomy or self-government in
matters relating to their internal and local affairs, as well as ways
and means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen
their distinct political, legal, economic, social and cultural
institutions, while retaining their right to participate fully, if they
so choose, in the political, economic, social and cultural life of the
State.
Article 7
1. Indigenous individuals have the rights to life, physical and
mental integrity, liberty and security of person.
2. Indigenous peoples have the collective right to live in
freedom, peace and security as distinct peoples and shall not be
subjected to any act of genocide or any other act of violence,
including forcibly removing children of the group to another
group.
DECLARATION OF THE UNITED NATIONS ORGANISATION ON THE RIGHTS OF INDIGENOUS PEOPLES
Adopted by General Assembly Resolution No.61/295 of September 13, 2007 (extract)10
POLITICAL AND LEGAL PROBLEMS OF CRIMEAN TATAR PEOPLE: APPROACHES TO SOLUTION
86 • RAZUMKOV CENTRE • NATIONAL SECURITY & DEFENCE • No.5, 2009
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of,
and redress for:
(a) Any action which has the aim or effect of depriving them
of their integrity as distinct peoples, or of their cultural values or
ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or
effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial
or ethnic discrimination directed against them.
Article 11
1. Indigenous peoples have the right to practise and revitalize their
cultural traditions and customs. This includes the right to maintain,
protect and develop the past, present and future manifestations of
their cultures, such as archaeological and historical sites, artefacts,
designs, ceremonies, technologies and visual and performing arts
and literature.
2. States shall provide redress through effective mechanisms,
which may include restitution, developed in conjunction with
indigenous peoples, with respect to their cultural, intellectual,
religious and spiritual property taken without their free, prior
and informed consent or in violation of their laws, traditions and
customs.
Article 13
1. Indigenous peoples have the right to revitalize, use, develop
and transmit to future generations their histories, languages, oral
traditions, philosophies, writing systems and literatures, and to
designate and retain their own names for communities, places and
persons.
2. States shall take effective measures to ensure that this right is
protected and also to ensure that indigenous peoples can understand
and be understood in political, legal and administrative proceedings,
where necessary through the provision of interpretation or by other
appropriate means.
Article 14
1. Indigenous peoples have the right to establish and control
their educational systems and institutions providing education
in their own languages, in a manner appropriate to their cultural
methods of teaching and learning.
2. Indigenous individuals, particularly children, have the
right to all levels and forms of education of the State without
discrimination.
3. States shall, in conjunction with indigenous peoples, take
effective measures, in order for indigenous individuals, particularly
children, including those living outside their communities, to have
access, when possible, to an education in their own culture and
provided in their own language.
Article 15
1. Indigenous peoples have the right to the dignity and diversity
of their cultures, traditions, histories and aspirations which shall be
appropriately reflected in education and public information.
2. States shall take effective measures, in consultation and
cooperation with the indigenous peoples concerned, to combat
prejudice and eliminate discrimination and to promote tolerance,
understanding and good relations among indigenous peoples and
all other segments of society.
Article 16
1. Indigenous peoples have the right to establish their own
media in their own languages and to have access to all forms of
non-indigenous media without discrimination.
2. States shall take effective measures to ensure that Stateowned
media duly reflect indigenous cultural diversity. States,
without prejudice to ensuring full freedom of expression, should
encourage privately owned media to adequately reflect indigenous
cultural diversity.
Article 18
Indigenous peoples have the right to participate in decisionmaking
in matters which would affect their rights, through
representatives chosen by themselves in accordance with their own
procedures, as well as to maintain and develop their own indigenous
decision-making institutions.
Article 19
States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free, prior and informed consent
before adopting and implementing legislative or administrative
measures that may affect them.
Article 20
1. Indigenous peoples have the right to maintain and develop
their political, economic and social systems or institutions, to be
secure in the enjoyment of their own means of subsistence and
development, and to engage freely in all their traditional and other
economic activities.
2. Indigenous peoples deprived of their means of subsistence
and development are entitled to just and fair redress.
Article 21
1. Indigenous peoples have the right, without discrimination, to
the improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational training
and retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid
to the rights and special needs of indigenous elders, women, youth,
children and persons with disabilities.
Article 23
Indigenous peoples have the right to determine and develop
priorities and strategies for exercising their right to development. In
particular, indigenous peoples have the right to be actively involved
in developing and determining health, housing and other economic
and social programmes affecting them and, as far as possible, to
administer such programmes through their own institutions.
Article 26
1. Indigenous peoples have the right to the lands, territories
and resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these
lands, territories and resources. Such recognition shall be conducted
with due respect to the customs, traditions and land tenure systems
of the indigenous peoples concerned.
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POLITICAL AND LEGAL PROBLEMS OF CRIMEAN TATAR PEOPLE: APPROACHES TO SOLUTION
According to one of the Majlis leaders R.Chubarov,
“clear norms of the UN Declaration on the Rights of
Indigenous Peoples adopted by the General Assembly
prove the legitimacy of many requirements of Crimean
Tatars concerning restoration of their rights, including the
right to self-determination on the condition of preservation
of the territorial integrity of the Ukrainian state, and
“bless” restoration of their national institutes, in particular,
Kurultay of Crimean Tatar people”11.
Therefore, both the national legislation (Constitution)
and international legal documents open up the possibility
of passage of a legislative act on the status and rights of
indigenous peoples, as demanded by representatives of
Crimean Tatars.
Issue of the institutes
The UN Declaration may also be of use to solve the
problem of regimentation of the legal status of Crimean Tatar
national self-government bodies– Kurultay and Majlis. The
Ukrainian legislation does not allow establishment of selfgovernment
bodies on ethnic grounds, leaving space only
for the establishment of such public associations, being
the only way of legitimisation of Kurultay and Majlis of
Crimean Tatar people in the present situation.
However, Crimean Tatar leadership continuously rejects
that option, as inconsistent with the actual status, role and
functions of those bodies. Palliative measures to that end
(e.g., establishment of the Council of Representatives of
Crimean Tatar people under the President of Ukraine) are
seen as provisional, and their effectiveness, as experience
proves, largely depends on political factors (in particular,
the person of the President and his stand on Crimean Tatar
issue).
The UN Declaration contains a number of articles
(e.g., 5, 20, 23) that admit the right of indigenous peoples
to preserve and build their own political, economic, social
and cultural institutes. Evidently, it may be applied to the
national self-government bodies of Crimean Tatar people
and gives grounds for their legalisation in that special
quality.
Expected risks
Some provisions of the Declaration, in particular,
dealing with the right of indigenous peoples to selfdetermination
(Articles 3 and 4), may be viewed as
additional legal justification of the intention of Crimean
Tatar people to establish in Crimea, contrary to the
Constitution of Ukraine, a national territorial autonomy.
11 R.Chubarov. UN Declaration on the Rights of Indigenous Peoples and assignment for Ukrainian politicians. – “Crimean Studies” web site, No. 3-4,
June-September, 2007, http://cidct.org.ua
Article 27
States shall establish and implement, in conjunction with
indigenous peoples concerned, a fair, independent, impartial, open
and transparent process, giving due recognition to indigenous
peoples’ laws, traditions, customs and land tenure systems, to
recognize and adjudicate the rights of indigenous peoples pertaining
to their lands, territories and resources, including those which were
traditionally owned or otherwise occupied or used. Indigenous
peoples shall have the right to participate in this process.
Article 28
1. Indigenous peoples have the right to redress, by means that
can include restitution or, when this is not possible, just, fair and
equitable compensation, for the lands, territories and resources
which they have traditionally owned or otherwise occupied or used,
and which have been confiscated, taken, occupied, used or damaged
without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples
concerned, compensation shall take the form of lands, territories
and resources equal in quality, size and legal status or of monetary
compensation or other appropriate redress.
Article 33
1. Indigenous peoples have the right to determine their own
identity or membership in accordance with their customs and
traditions. This does not impair the right of indigenous individuals
to obtain citizenship of the States in which they live.
2. Indigenous peoples have the right to determine the structures
and to select the membership of their institutions in accordance
with their own procedures.
Article 38
States in consultation and cooperation with indigenous peoples,
shall take the appropriate measures, including legislative measures,
to achieve the ends of this Declaration.
Article 39
Indigenous peoples have the right to have access to financial
and technical assistance from States and through international
cooperation, for the enjoyment of the rights contained in this
Declaration.
Article 40
Indigenous peoples have the right to access to and prompt
decision through just and fair procedures for the resolution of
conflicts and disputes with States or other parties, as well as to
effective remedies for all infringements of their individual and
collective rights. Such a decision shall give due consideration to
the customs, traditions, rules and legal systems of the indigenous
peoples concerned and international human rights.
Article 46
1. Nothing in this Declaration may be interpreted as implying for
any State, people, group or person any right to engage in any activity
or to perform any act contrary to the Charter of the United Nations
or construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States.
2. In the exercise of the rights enunciated in the present
Declaration, human rights and fundamental freedoms of all shall be
respected. The exercise of the rights set forth in this Declaration
shall be subject only to such limitations as are determined by law
and in accordance with international human rights obligations. Any
such limitations shall be non-discriminatory and strictly necessary
solely for the purpose of securing due recognition and respect for
the rights and freedoms of others and for meeting the just and most
compelling requirements of a democratic society.
3. The provisions set forth in this Declaration shall be interpreted
in accordance with the principles of justice, democracy, respect for
human rights, equality, non-discrimination, good governance and
good faith.
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However, Crimean Tatars argue that Ukraine already has
one administrative-territorial autonomy – the Autonomous
Republic of Crimea, and they, as an indigenous people,
would like it to be national12.
Design of the ways of solution of political and legal
problems of Crimean Tatars should take into account the
fact that a conflict can be provoked both by stagnation of
the current situation, and by acts aimed at its change (e.g.,
passage of the relevant legislative acts).
For instance, a legal precedent of granting special
status to some people living on the territory of Ukraine
may prompt similar claims (even unreasoned) by other
ethnic communities, heated disputes on those issues in
the political community and society. The same refers to a
special status of national self-government bodies of some
national communities.
Data of public opinion polls show that for the majority
of Crimeans, provision of the status of an indigenous
people for Crimean Tatars and official recognition of Majlis
may present a factor of conflict that will step up tension
in inter-ethnic relations. Representatives of other ethnic
communities of Crimea may view them as steps towards
Crimean Tatar goal of establishment of their national
territorial autonomy on the peninsula. The majority of
Russian and Ukrainians in Crimea are ready to peacefully
protest against such decision, and quite a few – even take
up arms to fight it13. Therefore, the socio-political situation
on the peninsula will become even more vulnerable to
destabilising influences.
Possible solutions
In view of the above considerations, risks at solution of
problems of Crimean Tatar people could be minimised by
the sequence of the following steps.
First of all, one should delimit the issues of
legislative definition of the status of indigenous peoples
and restoration of rights of persons deported on ethnic
grounds.
The first legislative act is to contain clear criteria of
classification of peoples living on the territory of Ukraine
as indigenous, define their status and specific (including
collective) rights in line with the UN Declaration on the
Rights of Indigenous Peoples. That legislative act must in
the first place provide:
• clear criteria of classification of ethnic groups as
indigenous peoples of Ukraine and, respectively,
their comprehensive list14;
• correspondence to the principles provided by the UN
Declaration on the Rights of Indigenous Peoples,
including not only the rights of those peoples and
their guarantee by the state but also limitations
on the exercise of such rights established by that
document (Article 46).
The second law is to deal with Ukrainian citizens of
all nationalities who suffered from forced deportation,
to establish the mechanisms and scope of restoration of
their rights. That law should reiterate that the Ukrainian
state is not a legal successor to the former USSR and bears
no legal responsibility for forced deportation of Crimean
Tatars and other peoples from Crimea. Furthermore, that
law and expected consequences of its effectuation should
not result in limitation of legislatively provided rights
of representatives of other ethnic groups living on the
peninsula.
The former law should make emphasis on collective
rights of indigenous peoples, in line with the spirit of the
relevant UN Declaration, the latter – on individual rights
of representatives of deported peoples. The spheres of
legal regulation of those laws should not overlap. This will
make it possible to avoid “privileges” for some people,
since each law will deal with several ethnic communities
and their representatives (in the former case – indigenous
peoples, in the latter – peoples subjected to deportation).
To avoid negative socio-political response to the
passage of the relevant legislative acts, their drafting
should be made utmost transparent, employing politically
unbiased scholars and experts15.
Another way to prevent possible negative consequences
is to make the relevant laws an element of wider efforts
at perfection of Ukraine’s legal framework in the field
of ethno-national relations16. Evidently, that will require
substantial improvement of the entire legal framework,
including, if necessary, amendment of Ukraine’s
Constitution. This approach might rest on the Concept of
the State Ethno-National Policy of Ukraine, remaining
unfinished and not approved for years17. Such approaches
could promote a compromise between representatives of
different ethnic communities in Ukraine.
12 This circumstance was noted by R.Chubarov. See: Materials of the conference “Crimean Tatars and Ukrainian society: problems political and social
integration”. – Kyiv, November 26-27, 1998, p.44.
13 See: Crimea: people, problems, prospects. Razumkov Centre Analytical Report. – “National Security & Defence”, 2008, No. 10, p.21.
14 Elaboration of such criteria should build on the experience of preparation of the relevant bills. For more detail see: section 2.2 of the Analytical Report
published in this magazine.
15 The following sequence of action is proposed: establishment of a working group for bill drafting, employing scholars, experts, representatives of the
concerned ethnic groups; preparatory activities, including analysis of possible positive and negative effects of passage of the law; submission for parliamentary
hearings in the Verkhovna Rada of Ukraine and the Verkhovna Rada of the AR of Crimea; submission for consideration to the Verkhovna Rada of Ukraine.
16 See, e.g.: Kotyhorenko V. Crimean Tatar repatriates: problem of social adaptation. – Kyiv, 2005, pp.200-203.
17 Two relevant bills have been registered in the Verkhovna Rada: “On the Concept of the State Ethno-National Policy” (No. 3581 of December 30, 2008)
submitted by the Cabinet of Ministers of Ukraine, and “On Approval of the Strategy of the State Ethno-National Policy” (No. 3106 of September 2, 2008)
submitted by National Deputy of Ukraine M.Papiyev.
POLITICAL AND LEGAL PROBLEMS OF CRIMEAN TATAR PEOPLE: APPROACHES TO SOLUTION
Annex 1017
Andrew Wilson, Needs Assessment for the Crimean Tatars and Other Formerly Deported
Peoples of Crimea (2012)
1
NEEDS ASSESSMENT FOR THE CRIMEAN TATARS AND OTHER FORMERLY DEPORTED
PEOPLES OF CRIMEA Dr. Andrew Wilson, 2012
1. Introduction
Crimea, now part of independent Ukraine, is
regarded by many Russians as part of their historical
“homeland”, but is also home to many other ethnic
traditions. It is currently the only region of Ukraine
with a majority population of ethnic Russians (1.18
million or 58.5 per cent at the last census in 2001,
the next is due in 2013); but is also home to almost
300,000 (13.3 per cent) of the former deported
peoples (FDPs), mainly Crimean Tatars (just over
12 per cent),1 who were expelled under Stalin in
the 1940s and have only able to return since the late
1980s. Their homecoming has been difficult. The
Crimean Tatars in particular claim that they are an
artificial minority, a former majority progressively
reduced by death and migration even before the
Deportation in 1944 (in Crimean Tatar Sürgünlik),
and have therefore claimed special political rights.
There is, however, not even a basic legal framework
to define their position. The socio-economic status
of the returnees remains extremely difficult. Some
progress has been made in integration in the last
twenty years, but not as much as was expected when
the USSR disappeared in 1991. Rather, time itself is a
factor, with a lack of progress leading to some signs of
radicalization on all sides. Although much was done
to help with the immediate problems of return in the
mid-1990s, many longer-term tasks remain and the
potential for future conflict remains high.
2. Historical background
While the exact development of the Crimean
Tatar ethnos is disputed, it is widely accepted that
the Crimean Tatars have inhabited the Crimean
peninsula at least since Mongol tribes arrived in the
thirteenth century and subsequently intermixed
with native and Turkic tribes. The Mongol “Golden
Horde” eventually split into several Khanates, but
the Crimean Khanate was the longest lasting, from
1428 until Imperial Russia annexed the peninsula
in 1783. After 1475 the Khanate was linked to the
Ottoman Empire, but a specific Crimean Tatar
national identity developed on the peninsula, so it is
even argued that the Crimean Tatars should be more
simply known as “Crimeans” (Qırımlar ).
The Crimean Tatars remained the majority
population until Russian annexation in 1783 (83 per
cent, or 171,000 ten years later), but their numbers
fell sharply with successive waves of out-migration,
mainly to the Ottoman Empire; the first immediately
after annexation and the second after the Crimean
War in 1853-6. It is hard to be precise, as the outflow
first began with the Russo-Turkish War of 1768-74;
but there was little formal Russification until the
Crimean War, during and after which an aggressive
programme of Christianization sought to turn the
peninsula into the “Russian Athos”.2 Christianity had
had a presence on the peninsula dating back to Roman
times, but the Russian and Ukrainian presence was
initially minimal. From the 1850s, however, the
Crimean Tatars were increasingly marginalized by
first Russian and then Soviet raison d’état and the
perceived strategic need to incorporate Crimea, and,
later, by the Ukrainian desire to increase the ethnic
Ukrainian presence throughout the new settler
communities of southern Ukraine or “New Russia”.
In the process, the Crimean Tatars were increasingly
depicted as a marginal presence, and as culturally and
religiously alien and as politically unreliable.
The “historical” Christian population of about
50,000 at the time of annexation was largely made
up of Greeks and Armenians.3 The Greeks predated
the Crimean Tatars by more than a thousand years.
Armenians fleeing the Seljuk invasions in the eleventh
century formed Armenia Maritima, one of the largest
parts of the medieval diaspora until 1475. The local
1 By 2012, the percentage of Crimean Tatars was unofficially 13.5 per cent, as the overall population of Crimea had fallen.
2 Mara Kozelsky, Christianizing Crimea: Shaping Sacred Space in the Russian Empire and Beyond , (DeKalb, Illinois: Northern Illinois University Press, 2010).
3 Ibid., p. 3.
2
German community, on the other hand, was largely
invited to settle in Crimea and the southern steppe
by Catherine the Great, and the Bulgarians were
refugees from the Ottoman wars either side of 1800;
though both helped to displace the Crimean Tatars
(in 1897 the Taurida province, which also included
parts of the northern Black Sea coast, contained
78,000 Germans and 41,000 Bulgarians). Crimea
was also home to the Krymchaks, who spoke a Turkic
language and were culturally kin to the Crimean
Tatars, but wrote in Hebrew characters, as well as the
Karaim or Crimean Karaites, who were also Turkic
speaking Jews, but messianic and anti-rabbinical.
Both groups claimed to predate the Crimean Tatars
on the peninsula, at least in terms of the Mongol
incursion of the thirteenth century.
At the time of the 1917 Revolution the Crimean
Tatars still made up about a quarter of the local
population. Several rival bodies claimed power,
including a Crimean Tatar assembly or Qurultay
(set up in December 1917), the monarchist White
Russians, Ukrainians and local Bolsheviks. The
Communists were only finally victorious in 1921,
setting up a Crimean Autonomous Socialist Soviet
Republic (Crimean ASSR) as part of the Russian
Republic, though it had less freedom of action after
1936. Formally, this was a territorial, not an ethnic
republic, although the Crimean Tatars benefited to
a limited extent from the “indigenization” policies
practised elsewhere in the USSR in the 1920s.4
Crimean Tatars were reasonably well represented in
government. Under the constitutions of 1921, 1926
and 1938 there were two official languages in Crimea:
Russian and Crimean Tatar. An infrastructure
of Crimean Tatar education was expanded up to
university level (see Marina Gurbo, “Assessment of
the Educational Needs of Crimean Tatars and Other
Formerly Deported Peoples”, 2013). This cultural
revival ended in 1928, four years after the death of
Lenin, with Russification pressures increasing after
1936, after which the Crimean Tatar language had
to be written in Cyrillic. The 1930s also brought the
horrors of de-kulakization and the Holodomor, the
man-made famine that killed millions throughout
Ukraine and in south-western Russia, and further
purges and repression in 1937-8. This was in
addition to the earlier famine at the end of the
Civil War in 1921-22, in which 100,000 perished
in Crimea, of whom at least 60,000 were Crimean
Tatars.5 According to the historian Alan Fisher,
‘between 1917 and 1933, approximately 150,000 or
50 per cent of the Crimean Tatars had either been
killed or forced to leave the Crimea’,6 even before the
Deportation of the rest in 1944.
The Crimean SSR was downgraded into a mere
oblast of the Russian SFSR in 1945, then transferred
to the Ukrainian SSR in 1954 in honour of the 300th
anniversary of the Treaty of Pereyaslav which, in
the official Soviet view, established eternal Russian-
Ukrainian friendship.
3. The deportation7
In May 1944 the Crimean Tatars were accused of
collaboration with the German occupiers, and also
with desertion, and deported from Crimea en masse8.
Since most adult Crimean Tatar men were either at
the front or mobilizing as guerilla forces in Crimea,
86.1 per cent of the original deportees consisted of
the elderly, war invalids, women, and children, a fact
supported by Soviet statistics from that era.9 The
main Deportation on May 18 was then followed by
another wave of Crimean Tatar soldiers serving in
the Soviet armed forces. Some Crimean Tatars had
4 Talk show “Gravitation”. What statehood is necessary to Crimean Tatars? (Токшоу “Гравитация”.Какая государственность нужна крымским татарам?) http://atr.
ua/pages/programs.aspx?video=2012-10-12-22-53-39-6158265.
5 Alan Fisher, The Crimean Tatars , (Standford: Hoover Institution Press, 1978), p. 137.
6 Ibid., p. 145.
7 On the Deportation, see Aurélie Campana, “Sürgün: The Crimean Tatars; Deportation and Exile”, Online Encyclopedia of Mass Violence, 2008, http://www.massviolence.
org/Article?id_article=163.
8 According to the official Soviet documents, the number is approximately 200,000. This number is debated by Crimean Tatars who state that numbers were deflated.
USIP Peaceworks 19, states that more than half of the Crimean Tatar population died during deportation and shortly thereafter, and specifies this number as 240,000.
“Sovereignty after Empire, Hopes and Disappointments: Case Studies – Crimea,” USIP Peaceworks 19 at http://www.usip.org/pubs/pworks/pwks19/chap3_19.html,
p.14.
9 Brian Williams, The Crimean Tatars The Diaspora Experience and the Forging of a Nation, (Leiden, Boston, Koln: Brill, 2001), p.393.
3
indeed defected to the German side (just over 9,000),
but 20,000 had been mobilized into the Soviet
Armed Forces since 1941.10 In Crimea, Crimean
Tatars made up about a fifth of the Soviet partisans
who were involved in guerilla warfare.11 According to
two local historians, “after the Russians, the largest
number of local guerrillas fighting among the Soviet
partisans in the Crimea was actually Crimean Tatars
not the more numerous Ukrainians.”12 The Soviet
authorities were also motivated by long-standing
stereotypes against the “treacherous” Crimean Tatars,
by the desire to make Crimea more firmly Russian
(and less Ukrainian) and by aggressive geopolitical
rivalry with Turkey at the time.
At least 180,000 in total were deported to Siberia,
Central Asia and the Ural Mountains (some estimates
go as high as 195,000; according to the 1939 Soviet
census there were 218,179 Crimean Tatars in the
Crimean ASSR, 19.4 per cent of the total population,
but many had perished in the war).13 The loss of
life during the Deportation (in guarded and sealed
cattle-trains without food or water, and in appallingly
unsanitary conditions) was substantial. According
to NKVD estimates, 27 per cent of the population
perished in the first three years alone.14 Crimean
Tatar analysts in the 1960s put the figure as high as
46 per cent, almost half of the population, perishing
in the first years following the operation.15
The Bulgarian, Greek, German and Armenian
communities were also collectively deported.
Approximately 60,000 Germans suffered the first
wave of deportation at the outbreak of war in August
1941. They were then followed on June 2 1944 by
the deportation of 14,000 Crimean Greeks, 11,000
Armenians and 12,000 Bulgarians.16 Beria claimed
the same reason of “collaboration”, backdated to
the 1930s, even though the “traditional Christian”
communities had usually been among the most loyal
allies of Russian power. The deported were confined
to special settlement camps, where they provided
cheap labor for the economic development of the
regions to which they were exiled.
In 1956 Khrushchev delivered his famous Twentieth
Party Congress speech denouncing Stalin. Although
the majority of deported groups (Chechens, Ingush,
Karachais, Balkars, Kalmyks, and Koreans) were
rehabilitated at this time and allowed to return
home, the Crimean Tatars, Meskhetian Turks,
and Volga Germans (who had been deported from
regions other than Crimea) were excluded for reasons
that remain unclear, though it seems likely they
reflected the geopolitical and strategic importance
of the peninsula to the Soviet regime. A decree in
1967 absolved the Crimean Tatars of the charges of
collaboration, but was given little publicity outside
of Central Asia and stopped well short of full
rehabilitation: the Crimean Tatars continued to be as
unwelcome in Crimea as ever. Those Crimean Tatars
who in spite of everything managed to return to
Crimea were often re-deported. Significant numbers
were only able to begin returning once the Soviet
system began to weaken in the late 1980s.
4. The late Soviet era
The Crimean Tatars renewed their dissident
movement early in the perestroika era. Ironically,
they were promised better treatment by the last
Soviet authorities than they have been offered by
independent Russia or Ukraine. In 1989 the newly
elected Soviet Supreme Soviet formed a commission
under Genadiy Yanaev, later the Vice-President of
the USSR, and in November 1989 issued a decree
10 Williams, The Crimean Tatars , p.376. J. Otto Pohl, The False Charges of Treason against the Crimean Tatars, www.iccrimea.org/scholarly/pohl20100518.pdf.
11 B. Broshevan and P. Tygliiants’, Izgnanie i Vozvrashchenie. (Simferopol: Tavrida, 1999), p.34.
12 Ibid.
13 Edward Allworth, “Renewing Self Awareness”, in Allworth (ed.), Tatars of the Crimea: Return to the Homeland , (Durham and London: Duke University Press, 1998),
pp. 1-26, at p. 11. The National Movement of Crimean Tatars estimates that up to 238,000 persons were deported of whom 206,000 were women and children. They
also state that about 110,000 persons died as a result of starvation and unbearable living conditions.
14 Bugai, Nikolai Fedorovich, ed. Iosif Stalin – Lavrentii Beriia: “Ikh Nado deportirovat”: Dokumenty, fakty, kommentarii [ Joseph Stalin – L. Beria: “They Must be Deported”:
Documents, Facts, commentary] (Moscow: Druzhba Narodov, 1992).
15 Aleksandr M. Nekrich, The Punished Peoples, (New York, WW Norton and Company, 1978).
16 Y. M. Biluha and O.I. Vlasenko, Deported Crimean Tatars, Bulgarians, Armenians, Greeks, Germans: documents, facts, evidence (1917–1991) (Ukraine: State Committee
of Ukraine on Nationalities and Migration, 2004) (Білуха,Ю. М., О. І. Власенко, Депортовані кримські татари, болгари, вірмени, греки, німці: документи,
факти, свідчення (1917-1991)(Державний комітет України у справах національностей та міграції, 2004), p.16.
4
“On the recognition as unlawful and criminal the
repressive measures against peoples subjected to
forced deportation, and the guaranteeing of their
rights”. This called into question a series of previous
Soviet decrees, included the downgrading of the
Crimean ASSR into a mere oblast of the Russian
Soviet Republic in 1945. The Crimean oblast was
indeed transformed into an Autonomous Republic
once more, after a referendum in January 1991
that won 93 per cent support. The manoeuvre was
accepted in Kiev in order to meet halfway the Russian
majority in Crimea that was threatening to secede.
The local elite ensured that the referendum referred
to their desire to be “a subject of the Soviet Union
and a party to the [proposed new] Union Treaty”,
but while the Republic was restored in February
1991, the latter demand was ignored. The new
Autonomous Republic of Crimea (ARC) remained
part of Ukraine and so joined it when the Ukrainian
parliament declared independence in August 1991, a
decision confirmed by an all-Ukrainian referendum
in December 1991, though since disputed by many
Russians. About 100,000 Crimean Tatars had
returned to the peninsula by January 1991, but they
boycotted the referendum because they would have
preferred to establish a national-territorial (Crimean
Tatar) republic.
In 1989, the USSR Supreme Soviet also recommended
that the Crimean Tatars be returned to Crimea
under a government-sponsored plan.17 This proved
abortive, but the decision itself was a major turning
point for the Crimean Tatars. The 1989 Soviet census
showed their number in Crimea to be 38,365. The
mass return to Crimea now gathered pace, with the
highest numbers returning from 1990 to 1993.
The newly independent post-Soviet states, however,
took different paths with regard to the rehabilitation
of FDPs. According to the Bishkek Agreement signed
in October 1992, all countries of the former Soviet
Union except the three Baltic States and Georgia
agreed that FDPs had the right to return from the
places of their deportation. The contracting parties
further agreed to provide equal political, economic,
and social rights to returnees, including guaranteeing
equal access to housing, jobs and social services.
In particular, the participant countries promised
to share the cost of the Crimean Tatars’ return
to Crimea. However, there was no enforcement
mechanism for non-compliance. The Agreement was
prolonged for ten years in 2003, but is due to expire
in 2013.
Ukraine, on the other hand, has to date never passed
a law on the rehabilitation of FDPs, so their return
was not mainstreamed into Ukrainian legislation
and policies. Return was also made difficult by the
economic crises throughout the former USSR in the
1990s, and in Ukraine in particular. The lip-service
paid by most signatories to the Bishkek Agreement18
was manifest in inadequate and untimely funding,
the reluctance of local authorities to allot land and
provide housing, legal and bureaucratic obstacles
to speedy access to the citizenship essential to
employability and for political participation, and an
overall atmosphere of general public hostility (see
Noel Calhoun and Dmitriy Pletchko, “Legal Aspects
of Return and Legalization in Ukraine of Formerly
Deported Persons (FDPs)”, 2013). A new trauma
of return made the old trauma of deportation even
more profound.
17 “Yanaev Komisyon Raporu” (“The Report of the Yanaev Commission”), Kirim Journal (Kirim Turklerinin Aylik Dergisi), April 1990, p. 44.
18 Even from the beginning, the Bishkek Agreement remained largely on paper. As early as December 1992, in a letter from the Russian Minister of Finance in response to
the appeal of the Ministerial Council of Crimea to allot money in Russia’s 1993 budget for the return of FDPs from Russia, it was stated that in 1992 Russia had already
transferred 500 million roubles to Crimea as repatriation assistance and couldn’t continue this support because of its own need to accommodate the influx of refugees
and migrants and because “the resettlement of Crimean Tatars in Crimea is a voluntary private matter of the Crimean Tatars”; (Kopiia. V Gosudarstvennyi Komitet po
delam federatsii i natsional’nostei, 3 December 1992).
5
5. Life in independent Ukraine
Figure 1: Ukraine and Crimea
Crimea is the only administrative subdivision of
Ukraine where ethnic Russians are a majority.
According to the 2001 Census, Crimea had a
total population of 2,024,000.19 Ethnic Russians
constituted 58.5 per cent,20 Ukrainians were 24.4 per
cent, and the Crimean Tatars were then 12.1 per cent
of the population, rising to 13.5 per cent by 2012.
The remaining 5.4 per cent consisted of smaller
ethnic groups, including Jews (4,500), Siberian and
Volga Tatars (11,000), Belarusians (29,200), Karaites
(670) and Krymchaks (204); in addition to the four
groups defined as the Formerly Deported Peoples
(FDPs): the Armenians (8,700); Germans (2,500);
Bulgarians (1,800); and Greeks (2,800).21 The rate
of return of FDPs is summarized in the table below.
As with the rest of Ukraine (and Russia), economic
and public health difficulties have led to an overall
population decline, in Crimea’s case down by
400,000 from 2.4 million in 1989 to just under two
million in 2012.
Table 1: Estimated figures on Formerly Deported
Peoples.
ETHNIC
GROUP
DEPORTED RETURNED22
Crimean Tatars 180 000 265 985
Bulgarians 12,000 855
Germans 60,000 884
Armenians 11,000 589
Greeks 14,000 2579
Table provided by Veljko Mikelič. Source: Data of
Returned persons - Official statistic from the Verkhovna
Rada Krima (Crimean Parliament), figures on
deported persons are approximate based on historic
documents and the interviews held with ethnic group
leaders in Crimea in September 2012. Note: Germans
were mainly deported earlier, in 1941.
The current majority of ethnic Russians in Crimea
dates from the Crimean Tatar Deportation in 1944,
though the peninsula is still regularly depicted as
an historically Russian rodina (homeland). Russian
nationalists in both Russia and Crimea have
continued to question the legality of Khrushchev’s
1954 “internal transfer” of Crimea from the Russian
to the Ukrainian SSR. These separatist tendencies
are further exacerbated by the unresolved status of
the famous Russian Black Sea Fleet, located in the
Crimean port city of Sevastopol.
Soviet Ukraine held censuses every ten years;
independent Ukraine has only held one - the next
census has been delayed twice and is currently due in
2013. The authorities fear it will show out-migration
and general population fall, and are always sensitive
to the size of the ethnic Russian and Russian-speaking
populations – hence not holding the census in 2012,
19 Although there has been no census taking since 2001, according to the State Statistical Committee of Ukraine (SSCU) in 2011 the population of Crimea was assessed
as 1,952,000. The Republican Committee on Nationalities and Deported Peoples in the Autonomous Republic of Crimea (Reskomnats) report, “Informatsia o sostayanii
i problemikh vosprosakh obespecheniya prav nationalnikh menshestv v Avtonomnoi Respublike Krim,” p.1. At the end of 2012, the population was up a little, at
1.965,000.
20 See http://www.ukrcensus.gov.ua/eng/results/general/nationality/.
21 See http://2001.ukrcensus.gov.ua/eng/results/general/nationality/Crimea/.
22 Includes direct descendants of deported persons.
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6
which was an election year. But when the census is
fi nally held, it can be reliably predicted it will show an
increase in the size of the Crimean Tatar population,
with less change for the other FDPs, given overall
population loss, higher Crimean Tatar birth rates
and the diminished but steady rate of return since
2001. Crimean Tatar children already make up 20
per cent of the school population (see Marina Gurbo,
“Assessment of the Educational Needs of Crimean
Tatars and Other Formerly Deported Peoples”,
2013). Th e Crimean Tatar population in Crimea
has a birthrate double that of the local Slavs, at 4.5
per thousand (or 2.3 per woman, above replacement
ratio). Th e overall population of Crimea is still falling
at -0.4 per cent per annum, while the Crimean Tatar
population is growing by +0.9 per cent.
Th e rate of return for Crimean Tatars and other FDPs
has slowed since the early 1990s because of economic
diffi culties and legal obstacles, although at least
100,000 are estimated to remain in Central Asia. Fewer
have returned from the global Crimean Tatar diaspora,
estimated at fi ve to six million, which is strongest but
most diff use in Turkey, where the Kemalist tradition
was to classify everyone as “Turks”.23
Table 2: Th e returning Crimean Tatar population
Crimean Tatar Return
Waves
Crimean Tatar population
(approximate)
1967-1979 (First wave –
the frontiers)
5,400
Spring 1988 17,500
1989 (Last Soviet Census) 38,365
1989-1992 (Mass return) 204,000
1993-1996 (Deceleration
period)
259,000
(offi cial 2001 census,
Crimea only)
243,400
As of 2012 266,000
Before the Deportation, the Crimean Tatars mainly
lived in the regions north of the mountains that
rise behind the southern beaches – their historical
capital was at Bakhchisaray. However, settlement was
relatively widespread both in the main agricultural
regions (the further north, the more problems with
the water supply) and in the southern coastal strip,
whose ports were the historical link to the Ottoman
Empire and the Mediterranean world (see Figure 2).
Figure 2: Distribution of percentage of Crimean
Tatars by region in Crimea, according to the 1939
Soviet census
Since the return of Crimean Tatars in the late 1980s
and early 1990s, however, settlement patterns have
been diff erent. Returnees have been discouraged
from settling in the southern coastal strip, where
the (post-) Soviet tourist industry developed. Th e
unwillingness of the local authorities to allocate land
to FDPs in historical areas as well as the (corrupt)
sale of land to private investors has led Crimean
Tatars to seek available land elsewhere, mostly in the
central part of Crimea close to main urban areas. As a
result, the biggest concentration of Crimean Tatars is
now in the Bilogorsk district (over 30 per cent of the
total population). Other signifi cant concentrations
of Crimean Tatars can be found in Bakhchisaray, as
well as in Simferopol, Pervomaysky, Kirovsky, and
the Sovetsky districts, where they represent from 24
per cent to 29 per cent of the total population. As
shown in Figure 3, with the exception of Koktebel
and Sudak, only a very limited number of Crimean
Tatars have managed to settle on the southern coast,
in cities like Yalta and Alushta. Few Crimean Tatars
live outside the ARC, in the separate administrative
district of Sevastopol, which is actually almost a
mini-republic. More than the port, it incorporates
the towns of Balaklava and Inkerman, but only a
quarter of its territory is urban.
23 Brian Glyn Williams, Th e Crimean Tatars: Th e Diaspora Experience and the Forging of a Nation, (Leiden, Boston, Koln: Brill, 2001).
'
-
-
7
Figure 3: Distribution of Crimean Tatars by
regions in Crimea (in percentages), according to
the 2001 Ukrainian census
About three quarters of the Crimean Tatar population
still live in rural areas. Th ey have therefore been forced
to build their own settlements, which have only
gradually become connected to local utility supplies.
Land rights are insecure and “irregular constructions”
are common (see Veljko Mikelic, “Housing, Land and
Property Issues of FDPs in Crimea”, 2013). Crimea
as a whole also has plenty of development problems:
its economy is overly reliant on the old-fashioned and
beach-dependent post-Soviet tourist industry. Th e
Crimean Tatars still tend to live separately from other
groups; their standard of living is below average, and
has not grown much in twenty years. A Crimean Tatar
middle class has yet to fully emerge.
6. Religion and culture
Th e Crimean peninsula is home to a strong Russian
Orthodox Church (technically the “Ukrainian
Orthodox Church - Moscow Patriarchate”, but this
UOC-MP is still organizationally part of the broader
Russian whole). In Ukraine generally, Orthodox
believers are split into three major and one minor
Churches, but in Crimea the vast majority of
Orthodox communities, 519 out of 589 as of 2010,
belong to the UOC-MP.24
Th ere are at least six rival bodies claiming to represent
Muslims in Ukraine. Th e main three in Crimea are the
Spiritual Directorate of Muslims of Crimea (DUMK),
which is an elective body linked to the Crimean
Tatar Qurultay and led since 1999 by the Muft i of
Crimean Muslims Emirali Ablaev. DUMK oversees
the Crimean Muft iyat and practises traditional Sunni
Islam of the Hanafi school, which is traditionally
more open-minded to other cultures. DUMK models
itself on and co-operates closely with similar groups
in Turkey. Th e Spiritual Directorate of Muslims of
Ukraine (DUMU) is its all-Ukrainian equivalent
established in 1992, and represents “offi cial Islam”
led by a Lebanese citizen, Sheik Ahmet Tamim, the
self-styled Muft i of Ukraine who follows the Habashi
version of pan-Sufi sm and can be relied on to condemn
all forms of extremism. Tamim is a controversial
fi gure, however, whose authority is contested by
many Muslims in Ukraine, particularly because of his
role in allocating reserved places for the annual Hajj
and alleged profi teering from the position. DUMU
also has an off shoot in Crimea, the Spiritual Centre
of Muslims of Crimea (DTsMK), which, although
currently led by a Crimean Tatar Ridvan Veliev, is
multi-ethnic. At the end of 2010 the Ukrainian
authorities controversially registered the DTsMK as a
“second Muft iyat”. A fourth group in Crimea are the
followers of Hizb ut-Tahrir al-Islami (HUT) - the
Party of Liberation, known colloquially as the ‘Hizbis’
- who are supporters of a pan-Islamic Caliphate. A
Wahhabite extreme exists within this extreme, but so
far has found it diffi cult to expand in Crimea.
Relations with Turkey are obviously important.
Th e Diyanet (Turkish Presidency of Religious
Aff airs) supports the DUMK. Th e Diyanet Vakfi
charitable fund has helped with mosque building
and campaigned against HUT. In 2006-09 the
Turkish Agency for International Co-operation
and Development (ТIКА) funded 41 educational
projects worth over $3 million; but the Ukrainian
authorities have continued to go slow on offi cially
registering its activity.25
Relations with the North Caucasus have ironically
been facilitated by the apparent rapprochement
24 See the report at www.irs.in.ua/index.php?option=com_content&view=article&id=581%3A1&catid=51%3Astats&Itemid=79&lang=uk.
25 Offi cial statistics are at www.risu.org,ua, but are not always up to date.
8
between Ukraine and Russia since 2010. This has
also been exaggerated at the propaganda level, but
the Chechen mufti and president supported the
opening of a mosque in Krasnoperekopsk in August
2010. Contacts between Crimean Tatars and kin
groups amongst the Circassians and Adyghe can also
be expected to grow.
Most mosques were deliberately destroyed after the
1944 deportations; most Crimean Tatar place names
disappeared. Rebuilding a religious and educational
infrastructure has been controversial, with local
Crimean leaders preferring the opposite approach
of celebrating the Soviet, and even Imperial Russian,
past. Schooling and mass media in the Crimean Tatar
language remains under-developed, and the language
is officially considered by UNESCO to be “severely
endangered” (see Idil P. Izmirli, “On Revitalization of
the Language and Culture of the Crimean Tatars and
Other Formerly Deported People in Crimea”, Ukraine:
Assessment of Needs and Recommendations, 2013).
7. Politics
Political issues have also generated tensions (see
Natalia Mirimanova, “Political participation and
representation of Crimean Tatars and other formerly
deported people: needs assessment”, 2013). The first
Crimean Tatar party of the modern era, the National
Movement of the Crimean Tatars (NMCT), was
set up in 1987, but always saw itself as more of a
movement than a party. The NMCT split in 1989;
its main successor group organised the election of a
Second Qurultay (the first having been in 1917) in
Simferopol in June 1991, passing the Declaration of
National Sovereignty of the Crimean Tatar People,
which claims that “Crimea is the national territory
of the Crimean Tatar people, on which they alone
have the right to self-determination… The political,
economic, spiritual and cultural revival of the
Crimean Tatar people is possible only in their own
sovereign national state.”
In practice, the Crimean Tatars make up just over
13 per cent of the local population. Not all adults
have voting rights, but this is offset by traditionally
high turnout to create an effective voting block at
elections. Given a total figure for Crimean Tatars in
Crimea of 266,000 in 2012, the number of Crimean
Tatars of voting age is potentially as high as 180,000,
assuming 32 per cent are aged from zero to eighteen.
Traditionally, their turnout has been high and solid
majorities have voted as recommended by the Mejlis
(see below).
A one-off special provision granted the Crimean
Tatars a quota of 14 out of 98 seats in the local
assembly between 1994 and 1998. A “Council
of Representatives of the Crimean Tatar People
Attached to the President of Ukraine” was set up in
1999, which oversaw several practical improvements
to Crimean Tatar life in the early 2000s; but its
composition was unilaterally altered in 2010.
Numbers were cut from 33 to 19, only eight of whom
were now representatives of the Mejlis, and the leader
of the Mejlis Mustafa Dzhemilev lost his position as
chair of the Council. The leaders of the Qurultay
have therefore boycotted the Council since 2010.
Since 1991 the Qurultay and its plenipotentiary
body the Mejlis have also claimed to be the sole
legitimate representative voice for the Crimean
Tatar people: that is a parliament rather than
a political party or NGO. The Qurultay is
re-elected every five years (in 1991, 1996, 2001 and
2007), with 55 per cent claimed for the most recent
round of voting, the special reelections to local Mejlises
in 2009.26 Voting has been based on an indirect
‘electoral college’ system, but was due to be revamped
for the 2013 Qurultay (the ‘sixth’ – see below).
The assertion of parallel representative authority is an
awkward claim for any sovereign state, and the Mejlis’
claims are categorically rejected by the Ukrainian
authorities who often refer to the Mejlis as an “illegal
26 Oleksandr Bohomolov, Serhii Danylov and Ihor Semyvolos, “The Crimean Political Space: Between the Russian and Islamic Worlds”, National Security and Defence ,
no. 4-5 (121-3), 2011, pp. 53-9, at pp. 56-7.
9
body”. Moreover, the Qurultay is not the only voice
claiming to speak for the Crimean Tatars: others are
the radical Milli Firka (National Party), the NGO
Sebat (Fortitude) and the Crimean Tatar Popular
Front set up in January 2012.
The radicals are often referred to as the “Kazan party”,
as they claim life for Tatars is better under the Russians
in Kazan. But there are no regular tests of relative
support between the radicals and the Mejlis. The Mejlis
won 89 per cent of the vote in the special election for
the fourteen Crimean Tatar seats in the local Crimean
Assembly in 1994, although that was many years
ago. At rival demonstrations on Deportation Day,
the Mejlis regularly assembles a far bigger crowd.
One 2001 poll by the Razumkov Centre in Kiev put
support for the Mejlis at 82 per cent.27 Another poll
in 2011 reported 64.7 per cent of Crimean Tatars
saying that the Qurultay/Mejlis supported their
interests “fully” or “to some extent”.28 Though this
and other polls have been highly controversial: local
Slavic politicians were fond of quoting the fact that 25
per cent of Crimean Tatars believed the Mejlis ‘fully’
defended their interests, and not the 39.7 per cent who
said it did ‘to some extent’.
The issue of the Crimean Tatars and other FDPs is also
situated within broader Ukrainian politics, and within
the rivalry between Russia and Ukraine over Crimea.
Although initially inchoate in the 1990s, Ukrainian
politics has long seemed deadlocked in an existential
struggle between East and West, Russia versus Europe,
and between east and west Ukraine. The Crimean
Tatars have usually allied themselves with Ukrainian
“national-democratic” forces as a counterweight
against the local Russians, who dominate politics
on the peninsula. The Crimean Tatars may not
be natural fans of Ukrainian statehood, but have
reinvented themselves since 1991 as its strongest
proxy force on the peninsula (the local Ukrainians
are heavily Russified, especially because there was no
“Ukrainianization” period on the peninsula under
Soviet rule, as the Crimean ASSR was not part of the
Ukrainian Soviet Republic in the 1920s and 1930s).
Since 1991, the Crimean Tatars have also allied
themselves with the Ukrainian geopolitical view of
the Crimean peninsula as a necessary part of Ukraine’s
otherwise soft underbelly. Some Kazan radicals
have aligned themselves with the type of Russian
Eurasianism that sees Crimea as a key pivot to a
broader Orthodox civilization and/or sees Eurasia as a
marriage of the Orthodox and Islamic/Turkic worlds.
But there are also smaller groups who have allied
themselves with a specific “Ukrainian Eurasianism”
against the allegedly non-European Russians. And
there are some radicals who see a future Crimean Tatar
Crimea as part of a pan-Turkic or pan-Islamic arc of
influence stretching from Bosnia to Central Asia.
As mentioned above, the January 1991 referendum
on restoring the Crimean ASSR as a part of a renewed
Soviet Union won 93 per cent support. But 54 per
cent of local voters also backed an independent
Ukraine in a further referendum in December
1991– and the Crimean Tatars were crucial to the
narrow “yes” vote in Crimea.29 In 1992 the local
assembly adopted a constitution that all but declared
independence; a local Crimean President was elected
on a pro-Russian platform in January 1994, followed
by a majority for his aptly-named “Russia” block in
the Crimean assembly in March 1994.
The Crimean Tatars were largely bystanders to these
events, but supported Kiev’s reconsolidation of power
in 1995-6, without Kiev ever strongly reciprocating.
Kiev is forced to govern remotely and indirectly: an
informal bargain in 1995 gave local Russian-speaking
elites carte blanche to enrich themselves as long as
they did not raise the issue of separation. Both the
economy and politics are penetrated by local Mafia,
many of whom sat openly as local MPs in the 1990s.
27 See http://qtmm.org/en/news/1727-report-of-the-chairman-of-mejlis-mustafa-jemilev-at-the-4th-session-of-qurultay-of-the-5th-convocation.
28 The Razumkov Centre, National Security and Defence Report , No. 4, 2001, www.razumkov.org.ua/eng/files/category_journal/NSD16_eng.pdf.
29 http://razumkov.org.ua/eng/journal.php?y=2011&cat=160The Crimean Tatar population in late 1991 was 142,200 or 6 per cent. Many FDPs had either not yet
returned or were otherwise unable to vote.
10
The Crimean Tatars have pushed for various legal
measures to enhance their status, but with few
results. The Ukrainian constitution adopted in
1996 endorses the concept of “indigenous peoples”
(Article 11, the Ukrainians are referred to elsewhere),
but does not define who they are - and subsequent
attempts to do so have floundered. A 1993 Law
on the Rehabilitation of the Victims of Political
Repression was as general as it sounds and excluded
groups deported from Crimea on an ethnic basis. A
more specific law was vetoed by President Kuchma in
2004, allegedly because of Crimean Tatar reluctance
to support his chosen successor in the presidential
election campaign for that year. Its successor, the Law
on the Restoration of the Rights of Persons Formerly
Deported on Ethnic Grounds, passed its first reading
in June 2012, but its future remains uncertain.
The Crimean Tatars were disappointed that President
Viktor Yushchenko (2005-10) did so little to advance
their cause after the “Orange Revolution” in Kiev in
2004. The Council of Representatives of the Crimean
Tatar People Attached to the President of Ukraine
met four times under Kuchma, but only once under
Yushchenko. Most Crimean Tatars voted for Yulia
Tymoshenko in the 2010 Ukrainian election, but
the victory of Viktor Yanukovych with largely east
Ukrainian support (48.9 per cent nationally, 78.2 per
cent in Crimea) was matched by his Party of Regions
winning an unprecedented majority of eighty seats
in the Crimean Assembly. The new head of the
Crimean government Vasyl Dzharty’s first priority
was to cement the power of the Party of Regions in
Crimea, but he was also powerful enough to be able
to cut deals with the Crimean Tatars, symbolically
attending the “Appeal to the Descendants” at the
would-be site of the Crimean Tatar mosque in
Simferopol in March 2011. Dzharty, however, died in
August 2011 and was replaced by Anatoliy Mohyliov,
who as national Ukrainian Interior Minister had
been involved in a violent confrontation with the
Crimean Tatars at Ai-Petri in 2007, and had publicly
made anti-Crimean Tatar statements referring to
them as “Hitler’s henchmen”.30 Mohyliov did not
have the same power to make compromises; he also
represented the narrowing of the governing elite in
Crimea to a much smaller outsider group from east
Ukraine, and from Yanukovych’s home town of
Makiivka (the newcomers are therefore known as
the Makedontsy , the ‘Macedonians’).31 Crimea has
regained its reputation for corruption.
The Crimean authorities under Mohyliov have been
accused of playing an artificial politics of divideand-
rule to marginalize the Mejlis. In March 2013
Mohyliov stated “The Mejlis is a structure outside
the legal framework in Ukraine. I am ready to cooperate
with Mustafa Dzhemilev [as an individual].
However, let’s get rid of this word Mejlis.”32 The
Crimean Tatars have never voted for the ruling Party
of Regions, including in the key elections of 2010
and 2012, and every vote was likely to count at the
next elections in 2015. In 2013 Crimean Tatars
sympathetic to the Mejlis were removed from both
the Crimean government’s Committee on Inter-
Ethnic Relations, which oversees spending on FDPs,
and the parallel committee in the local assembly, and
replaced with regime-friendly loyalists.
The Mejlis also came under pressure to make the 2013
elections to the sixth Qurultay more ‘competitive’. It
agreed to abolish the electoral college, and fifty seats
would be allocated by open competition between
Crimean Tatar parties and NGOs, which threatened
to lead to confrontation between the Mejlis and its
more radical or more Russophile rivals through 2013.
8. Conclusion
Time does not cure all ills. Nor should it be assumed that
steady progress has been the default mode for relations
between the FDPs and Crimean and Ukrainian
30 ‘New Head of the Interior Ministry of Ukraine calls Crimean Tatars “Hitler’s Henchmen”’, 14 March 2010, http://vlasti.net/news/81377
31 Yulia Tyshchenko, “The Crimean Paradoxical Personnel Map: The ‘Old Crimean’ Guard against ‘New Makiivka’ Clans”, 23 November 2011, www.ucipr.kiev.ua/publications/
the-crimean-paradoxical-personnel-map-the-old-crimean-guard-against-new-makiivka-clans/lang/en. Mohyliov was born in Russia, but worked in the Donetsk
police from 1982, and headed the Makiivka police from 2000 to 2005.
32 See his remarks at http://www.ukrinform.ua/ukr/news/mogilov_ne_hoche_spivpratsyuvati_z_medglisom_yakiy___poza_pravovim_polem_1805624.
11
authorities since 1991. There have been improvements
in some areas, but paradoxical stagnation in many
others under ‘Orange’ Ukraine from 2005, and a
noticeable deterioration of the atmosphere since
Viktor Yanukovych became President of Ukraine in
2010, and especially since Anatoliy Mohyliov took
over the reins of the Crimean government in late
2011. Successive Ukrainian governments have been
rightly accused of neglecting the FDP problem so long
as potential Russian separatism remained dormant
in Crimea; while under Yanukovych the priority has
been to entrench the power of the outsider clan from
Donetsk, Ukraine’s position as chair of the OSCE in
2013 and the seventieth anniversary of the Crimean
Tatars’ Deportation in 2014 provides an opportunity
to redress some of these trends; but one that will
require all the key parties involved to reach more of
a common ground on needs assessment and a greater
willingness to act before problems on the peninsula
escalate.
Annex 1018
Andrew Wilson, The Crimean Tatars: A Quarter of a Century After Their Return, Security and
Human Rights 24 (2013)
© 2014 NHC DOI 10.1163/18750230-02404012
Security and Human Rights 24 (2013) 418–431 brill.com/shrs
The Crimean Tatars: A Quarter of a Century after
Their Return
Andrew Wilson
Reader in Ukrainian Studies, University College London, Senior Policy Fellow,
European Council on Foreign Relations
[email protected]
Abstract
The article looks at the position of the Crimean Tatars, seventy years after their mass
Deportation from Crimea in 1944, and twenty-fijive years since they were able to begin to
return to Crimea in 1989. It concentrates on the politics of their position since Viktor
Yanukovych was elected President of Ukraine in 2010, looking at arguments within their
ranks and at government attempts to play ‘divide and rule’.
Keywords
Ukraine; Minority rights; Crimea; Crimean Tatars; Political technology
In 1783, when the Russian Empire annexed the peninsula, the Crimean
Tatars who had been the leading force in Crimea since the fourteenth century,
were still the majority population, at just over 80%. Successive waves
of out-migration reduced their number to 19% (218,000) on the eve of their
mass Deportation by the NKVD in 1944. Almost half perished during the
Deportation and in the difffijicult years in Central Asia that followed. Unlike
many other ‘deported peoples’, they were not rehabilitated by Khrushchev
* The author has worked extensively on the comparative politics of the post-Soviet states
since 1990. His latest book Belarus: The Last European Dictatorship was published by Yale
University Press in 2011. His other recent books include The Ukrainians: Unexpected Nation
(Yale UP, third edition, 2009), Ukraine’s Orange Revolution (Yale UP, 2005) and Virtual Politics:
Faking Democracy in the Post-Soviet World (Yale UP, 2005). His latest publication at ECFR is
The EU and Ukraine after the 2012 Elections. Thanks for preparing material are due to all the
authors of the HCNM Report and stafff: to Bob Deen, Vincent De Graaf and Alexander
Vinnikov, to Nataliia Belitser of the Pylyp Orlyk Institute for Democracy and Yuliia
Tyshchenko of the Ukrainian Independent Centre for Political Research.
MARTI NUS
NIJHOFF
PUBLISHERS
SECURITY AND
HUMAN RIGHTS
A. Wilson / Security and Human Rights 24 (2013) 418–431 419
in 1956, and were not allowed to return to Crimea in signifijicant numbers
until the end of the Gorbachev era, after 1989.
The pace of return has slowed since the early 1990s. By 2012, there were
266,000 Crimean Tatars back in Crimea, making up 13.6% of the local population.
An estimated 100,000 remain in Central Asia, mainly in Uzbekistan,
plus several million in the broader diaspora, mainly in Turkey. There are
also around 5,000 other ‘Former Deported Peoples’ (FDPs) - Bulgarians,
Armenians, Germans and Greeks - compared to the 100,000 who were
deported in the 1940s. Unlike the Crimean Tatars, they have other homelands
to return to. The Crimean Tatars are part of the broader family of
ethnicities speaking one of the Turkic languages, but, despite historic links
to the Ottoman Empire, Turkey is not their original home. They formed a
separate national group, absorbing many local influences, in Crimea. Some
Crimean Tatars therefore suggest that they should go by the simpler name
of ‘Crimeans’ or Qırımlar.
The Crimean Tatars still face many acute difffijiculties after their return.
They are a minority in what they consider to be their historic homeland,
with their historical presence largely erased. Ethnic tensions are often
acute, in a region of often severe geopolitical tension. Crimea is part of the
new independent Ukraine, but Russia’s influence and ability to stir up trouble
is still considerable, though the Crimean Tatar issue is exploited by all
sides, in Moscow, Kiev and the local Slavic majority. The Crimean Tatars
themselves continue to face discrimination and often outright hostility on
the ground and their socio-economic problems are severe.
The HCNM Report
In August 2013 the OSCE’s High Commission for National Minorities
(HCNM) published a ‘Needs Assessment’ for the Crimean Tatars and the
other FDPs in Crimea, for which I was the ‘Academic Coordinator’.
Interested readers can read the report at www.osce.org/hcnm/104309.
‘Needs’ were assessed under six headings: the legal and bureaucratic
environment, including facilitating the return of remaining FDPs, mainly
from Central Asia; socio-economic conditions; land, housing and property;
education; language and culture, including religion and cultural heritage;
and fijinally political participation and representation. The fijindings will be
discussed in the second half of this paper. But the one thing that stood out
during the preparation of the report was the importance of political problems,
many of them artifijicial. In 2013 Ukraine was chair of the OSCE. May
420 A. Wilson / Security and Human Rights 24 (2013) 418–431
2014 is the 70th anniversary of the Deportation in 1944. A commitment to
upholding minority rights is the least that one might expect from the chair
of the OSCE, but Ukraine, under President Yanukovych, has been dragging
its feet and even showing signs of outright hostility to the leadership of the
mainstream Crimean Tatar organisation, the Mejlis.1 The explanation, an
obsession with monopoly control of politics, via the corrosive techniques
of ‘political technology’, bodes ill for long-term political stability on the
peninsula. The authorities are playing with the scarecrow of Islamic radicalism
– a phantom which may eventually become real if nothing is done to
reverse the neglect of basic socio-economic conditions and cultural
demands.
Relations under the Yanukovych Presidency
There was, ironically, a small window of opportunity to improve relations
between Kyiv and the Crimean Tatars after Yanukovych’s election in
February 2010. Among outgoing President Yushchenko’s many failings was
his neglect of the Crimean Tatar issue. According to the leaders of the
Mejlis, “we were surprised by his indiffference”,2 the most plausible explanation
for which was Yushchenko’s relative Ukrainian nationalism and his
concern that Crimean Tatar demands for sovereignty were a threat to the
Ukrainian state-building project on the peninsula.3
After 2010 the new head of the Crimean government was a close confijidant
of Yanukovych, Vasyl Dzharty. His fijirst priority was to cement the
power of Yanukovych’s Party of Regions in Crimea, but he was also powerful
enough to be able to cut deals with the Crimean Tatars, symbolically attending
the ‘Appeal to the Descendants’ at the would-be site of the Crimean
Tatar mosque in Simferopol in March 2011. Dzharty, however, died in August
2011 and was replaced by Anatoliy Mohyliov, an altogether diffferent fijigure.
Mohyliov was in charge of the bulldozers which flattened Crimean Tatar
businesses during a notorious confrontation at the disputed holiday/holy
site of Ai-Petri in 2007, and has publicly referred to the Crimean Tatars as
“Hitler’s henchmen” (the offfijicial but discredited reason for their Deportation
1 The Qurultay is an elected representative body claiming to represent all the Crimean
Tatars, with 250 members. The Mejlis is its smaller plenipotentiary equivalent, whose 33
members exercise the Qurultay’s functions between sessions.
2 Interview with Mejlis leader Mustafa Dzhemilev, 17 January 2010.
3 ‘Crimean Tatars Dissatisfijied with Yushchenko Statement’, 31 May 2005, www.unpo.org/
article/2565.
A. Wilson / Security and Human Rights 24 (2013) 418–431 421
in 1944).4 Mohyliov did not have the same power to make compromises as
Dzharty; Mohyliov also represented the narrowing of the governing elite in
Crimea to a much smaller outsider group from east Ukraine, many from
Yanukovych’s home town of Makiivka (the newcomers are therefore known
as the Makedontsy , like the ‘Macedonians’ from the north ruling the Greeks
to the south).5 Crimea under Mohyliov has also regained its reputation for
outlandish corruption.
Even in the summer of 2010, however, the fijirst scheduled meeting
between Yanukovych and the Mejlis leaders did not go well. There was a
stand-offf after Yanukovych invited radical critics of the Mejlis.6 The underlying
issue was that Crimean Tatar voters had overwhelmingly backed his
opponents in a closely-fought election (Yanukovych won by less than
900,000 votes). The leaders of the Mejlis stress that they “have always supported
the national-democratic camp. We are a pro-Ukrainian force”. They
even “support integration into the EU and NATO”.7 All of which was anathema
to Yanukovych, even before Ukraine’s relationship with the EU hit the
rocks in late 2013.
In fact, the Crimean Tatars often seem like the only ‘pro-Ukrainian force’
in Crimea. The local ethnic Ukrainian minority (24%, compared to 58%
who are Russian) is highly Russifijied. It was only thanks to Crimean Tatar
votes that a slim majority in Crimea, just 54%, voted to back Ukrainian
independence in the crucial referendum in December 1991. In the 2004
election the ‘orange’ candidate Viktor Yushchenko won 15% in Crimea,
helping towards overall victory, but the leaders of the Mejlis claim “12% of
that was us”.8 In the 2010 election the Crimean Tatars provided the same
bedrock support for Yuliya Tymoshenko’s 12% of the vote in round one and
17% in round two (Yushchenko won 1.3% in round one).
The October 2010 local elections in Crimea saw a landslide victory for the
Party of Regions, which was also able both to absorb many of the pro-
Russian parties of the 1990s and squeeze the remaining centre parties.
4 Anatolii Mogilev [Mohyliov], ‘V Krymu zreet konflikt po kosovskomu stsenariiu’,
Krymskaia pravda , 24 January 2008.
5 Yulia Tyshchenko, ‘The Crimean Paradoxical Personnel Map: The “Old Crimean” Guard
against “New Makiivka” Clans’, 23 November 2011, www.ucipr.kiev.ua/publications/the
-crimean-paradoxical-personnel-map-the-old-crimean-guard-against-new-makiivka-clans/
lang/en. Mohyliov was born in Russia, but worked in the Donetsk police from 1982, and
headed the Makiivka police from 2000 to 2005.
6 Yurii Zushchik, ‘Krymskie tatary tak poliubili Yanukovicha, chto raskololis’ na dva lageria’,
http://vlasti.net/news/98789.
7 Interview with Refat Chubarov, 17 January 2010.
8 Ibid.
422 A. Wilson / Security and Human Rights 24 (2013) 418–431
Efffectively there was now a ‘two-party system in Crimea’ – with the Party of
Regions and the Mejlis facing offf against one another. The Party of Regions
had fijirst 48, then 80 seats out of 100 in the local Crimean Assembly,9 compared
to eight for the older pro-Russian parties, fijive for the Communists,
two for the only remaining centre party, Strong Ukraine, and six for the
Mejlis.10 In the 2012 national elections to the Ukrainian Parliament, the
Party of Regions won 52.3% in Crimea versus 13.1% for the opposition party
Fatherland (which included Tymoshenko’s old party, though she herself
was now in prison), the main choice for the Crimean Tatars, and 7.2% for
the another opposition party UDAR. The Party of Regions won nine out of
ten territorial seats.11
Reason number two for the new Ukrainian authorities to oppose the
Crimean Tatars is therefore that they do not like two-party system. They
would prefer one. Yanukovych has expressly stated this in private to the
veteran Mejlis leader Mustafa Dzhemilev: the Mejlis was being punished
for voting against him. Conversely, Yanukovych said to Dzhemilev, “Join my
team, and all your problems will be over”.12 More generally, the Party of
Regions sees the Qurultay/Mejlis as an alien life form. The Party of Regions
dislikes any independent political activity, and apathy is its greatest ally, as
opposed to the alternative culture of resistance represented by the Mejlis.
In the scramble for votes in the run-up to the next Ukrainian presidential
election in 2015, even the tiniest margin will be vital. The Crimean Tatars
are the only independent voters left in Crimea. There were 266,000 Crimean
Tatars in Crimea in 2012, about 13% of the population. But higher birth rates
mean the percentage of Crimean Tatar schoolchildren in the system is
already nearer 20%. The number of Crimean Tatars of voting age is therefore
potentially as high as 180,000 (assuming a standard 32% are aged from
zero to eighteen), so they will also command nearer 20% of the local vote
by 2015. And traditionally their turnout has been high and solid majorities
have voted as recommended by the Mejlis.
9 Since the constitutional settlement in 1995-6, the local Assembly, full name the
‘Supreme Council of the Republic of Crimea’, has had no powers to make ‘law’ (zakon ), but
can pass ‘decisions and resolutions’ (rishennia ta postanovy ). See the Ukrainian Constitution
at http://zakon4.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80. So it is not a
‘parliament’.
10 Tetyana Huchakova, ‘Crimean Politics: The Turn of 2011…’, National Security and
Defence , no. 4-5, 2011 (Kiev), pp. 131—6, at p. 133; at www.razumkov.org.ua/eng/fijiles/
category_journal/NSD122-123_eng.pdf. See also rada.crimea.ua/structure/factions.
11 See cvk.gov.ua.
12 Interview with Dzhemilev, 15 May 2013.
A. Wilson / Security and Human Rights 24 (2013) 418–431 423
Finally, the power of the Party of Regions in Crimea is only skin-deep. As
mentioned above, its leadership is now dominated by outsiders from
Donetsk region. The local party is not well integrated in the national party.
Only one local Crimean was high up on the Party of Regions’ national party
list in 2012.
Exaggerating the threat of the Crimean Tatars is therefore seen as a good
way of consolidating support for the sometimes precarious local elite,
which also faces a long-term threat from Russia, even though Russia’s candidates
(or more exactly the candidates seeking Russian support) did not
do so well in the 2010 Crimean elections, when Russia spread its bets by
backing a wide range of parties and politicians: ‘Union’, the Russia Block,
the Communists, the Hrach-Volga Block, Inna Bohoslovska and Nataliya
Vitrenko. But the Kremlin is currently heavily backing the machinations of
Viktor Medvedchuk, Kuchma’s former chief of stafff and his ‘Ukrainian
Choice’ NGO (vybor.ua). Medvedchuk now lives in Crimea. Putin is godfather
to his daughter. He has plenty of money, but is not a plausible presidential
candidate, other than as a ‘spoiler’ if Yanukovych is not playing ball.
There is a danger that a ‘Russian Project’ in the Ukrainian elections due in
2015 might only succeed in Crimea, where it could take on more radical
overtones.
This is despite Ukraine being tied more closely, economically, to Russia.
Russian influence will only grow if Ukraine rejects the Agreements negotiated
with the EU. And the Crimean Tatars will be even more isolated.
Divide-and-Rule
Overall, after almost a quarter of a century back in Crimea, progress in integrating
the Crimean Tatars and other FDPs has been frankly slow. Politically,
the lack of progress might have been expected to produce more of a backlash
and the growth of a more radical fringe. In fact, at the time of writing
in late 2013, it is still the relative unity of the Crimean Tatar movement that
stands out. This should be borne in mind, as the Yanukovych administration
has been trying to create the opposite impression that the Crimean
Tatar community is increasingly divided and the Qurultay is only one voice
among many.
The authorities in Kyiv have returned to a hard-line policy of denying the
claim of the Qurultay to be a quasi-parliament. Admittedly, the claim is a
potential challenge to the sovereignty of any state, particularly as the
Qurultay also passed a ‘Declaration of National Sovereignty of the Crimean
424 A. Wilson / Security and Human Rights 24 (2013) 418–431
Tatar People’ back in 1991, which claims that ‘Crimea is the national territory
of the Crimean Tatar people, on which they alone have the right to
self-determination’. The Qurultay has also often declared itself to be the
only legitimate voice of the Crimean Tatar people. But a formula was found
for circumventing this problem back in 1999. A ‘Council of Representatives
of the Crimean Tatar People attached to the President of Ukraine’ was set
up to give advice to the said president, and it just so happened that most of
its members were leaders of the Qurultay/Mejlis. The Council met four
times when Leonid Kuchma was President (until 2005), but only once
under Yushchenko (2005-10).
But, as previously stated, Yushchenko’s policy was basically one of
neglect. Yanukovych’s team has been reviving the corrosive practices of
‘political technology’ once thought buried by the Orange Revolution in
2004, both in Crimea and in Ukraine as a whole to actively ‘manage’ politics
and disable challenges to their power. The trend is new, but the tactics are
old (and obvious): divide-and-rule, the creation of scarecrows (pugal ) and
fake oppositions.
In August 2010 Yanukovych cut the size of the Council of Representatives
from 33 to 19, only eight of whom were now members of the Mejlis.
Dzhemliev was deposed as chair. But three places were suddenly given to
the Milli Firka (‘National Party’).13 The latter has been around since offfijicial
registration in 2007, and takes its name from the fijirst Crimean Tatar party
originally established in 1917, but is widely seen as an artifijicial Uncle Tom
party covertly playing the authorities’ line. Moreover, a whole host of other
projects have been launched in a spirit of divide-and-rule: the Crimean
Tatar Popular Front in January 2012, the NGO Sebat and New Generation, all
peddling either a collaborationist or faux-radical line. 14
Pro-Russian Crimean Tatars are known locally as the ‘Kazan Party’, as
they argue that everything is better for the Volga Tatars in Kazan. According
to the Milli Firka leader Vasvi Abduraimov, for example: 'Russia has its
Tatars, Ukraine has its [Tatars]. Only the attitude to them is diffferent, for
some reason. Crimean Tatars even in their homeland, in the Crimea, are
not recognised as the titular nation.’15 Abduraimov published a notorious
13 ‘Yanukovych Reduced the Composition of the Council of Representatives of the
Crimean Tatar People by Almost Half’, Dzerkalo tyzhnia , 26 August 2010.
14 Anvar Derkach, ‘A New Crimean Front‘, The Ukrainian Week , 7 March 2012.
15 Oleksandr Bohomolov, Serhiy Danylov and Ihor Semyvolos, ‘The Crimean Political
Space: Between the Russian and Islamic Worlds’, National Security and Defence , no. 4-5, 2011
(op. Cit.), pp. 53—8, at p. 56. Original in Abduraimov, ‘Tatarskie druzh’ia i vragi’, Poluostrov ,
29 October 2007.
A. Wilson / Security and Human Rights 24 (2013) 418–431 425
open letter in September 2008, just after the war in Georgia, to Medvedev,
Putin and Shaimiev, the then leader of Tatarstan, asking them ‘to defend
the indigenous and other small ethnic groups in the Crimea from the
nationalist-leaning offfijicial authorities in Ukraine’ – a fake threat if there
ever was one.16
The Mejlis boycotted the new Council of Representatives after 2010, but
Kyiv upped the ante in 2013 by parachuting in a Yanukovych loyalist, Lentun
Bezaziyev, to take it over. His deputy was Vasvi Abduraimov, head of the
Milli Firka, who have called for the boycotting Mejlis representatives to be
kicked out.17
The role of the Crimean Tatars in local government is also decreasing. In
2012-13 leading supporters of the Qurultay were removed from key positions
in the Crimean Assembly and Cabinet of Ministers. The Mejlis deputy
chair Remzi Ilyasov was replaced as head of the Crimean Assembly's
‘Commission on Interethnic Relations and the Problems of Deported
Citizens’ by Enver Abduriamov, a local ‘businessman’. Eduard Dudakov,
head of the Republican Committee on Interethnic Relations, which oversees
the FDP budget, was replaced by Refat Kenzhaliyev, former deputy
head of the Crimean police and a close ally of Mohyliov.18 The State
Committee for Nationalities and Religion was disbanded in 2010.
The shift away from a more proportional election system also damages
the Crimean Tatars. Currently, they have only one national MP in Kiev (out
of 450), and only fijive in the Crimean Assembly (out of 100, one defected).
Seats are more winnable at a local Crimean level; but Crimean Tatars are
still under-represented, holding around 10% of seats on Crimean local
councils. Less than 5% of local administration offfijicials are Crimean Tatars,
excluding the special case of the Nationalities Ministry (Reskomnats ).
The New Qurultay
Pressure from above and from the radical ‘opposition’ led to important
changes for the election of the Crimean Tatars’ own elected body, the
16 Halya Cornash, 'The Crimea's Interests not Represented', 15 September 2008, http://
www.khpg.org/index.php?id=1221486403.
17 ‘”Milli Firka” calls on the President of Ukraine to renew the Membership of the Council
of Representatives’, 27 August 2013, http://krymtatar.in.ua/index/artstr/id/976.
18 ‘Mogilev [Mohyliov] “zachishchaet” krymskuiu vlast’ ot predstaviltelei Medzhlisa’,
24 February 2013, http://zn.ua/POLITICS/mogilev-zachischaet-krymskuyu-vlast-otpredstaviteley-
medzhlisa-117569_.html.
426 A. Wilson / Security and Human Rights 24 (2013) 418–431
Qurultay, in 2013. This was the sixth Qurultay. The fijirst Qurultay was held in
1917; the revival Qurultay in 1991 was therefore deliberately named ‘the second’.
New elections have been held every subsequent fijive years (the change
of system meant the 2013 elections were a year late). With the authorities
pressing to make the Qurultay look illegitimate, the new system was
designed to make it more efffective, more legitimate, and even more quasi-
‘parliamentary’, as well as bringing in ‘new blood’.19 The indirect elections
of the past would now be replaced with direct votes (the idea was even
floated to compress the old convoluted voting process into a one-day and
headline-making Crimean Tatar ‘general election’, but deemed impractical).
Two hundred delegates would now be elected from territorial constituencies
(nearly all in Crimea, four elsewhere in Ukraine, one in Uzbekistan)
and fijifty on a PR basis for political parties and blocks. The Crimean Tatars
organised their own ‘Central Election Commission’ to oversee the process,
and worked with outside observers, including from the IRI.
The turnout was 50.5% (90,850 Crimean Tatars voted).20 This might be a
long-term decline from the higher levels of political engagement in the
early 1990s, but worse had been feared. The turnout was also higher than
that among all Ukrainian voters in the 2012 national Ukrainian parliamentary
elections, which was only 49.4% in Crimea - the lowest vote for any
region in Ukraine, where the national turnout was 58%.21
The main pro-Mejlis block Milliy Haq, which was headed by Dzhemilev’s
long-time deputy Refat Chubarov, came fijirst. The Crimean Tatar National
19 Martyn Bohun, ‘Krim’ki [sic] tatary stvoriuiut’ paralel’ni derzhavni struktury. Kurultai
pratsiuvatyme yak parlament’, 15 February 2013; http://texty.org.ua/pg/article/LPB2/
read/43478/Krymki_tatary_stvorujut_paralelni_derzhavni_struktury_Kurultaj.
20 ‘Results for Elections to Qurultay Known’, 19 June 2013, http://qha.com.ua/results-of
-elections-for-qurultay-known-127731en.html.
21 See http://www.cvk.gov.ua/pls/vnd2012/wp063?PT001F01=900.
Table 1 Elections to the sixth Qurultay, 2013 (PR vote)
Milliy Haq Block 29,376 votes 18 seats
İnkişaf 11,861 8
CTNMO 8,382 6
Qardaşlıq-Qarasu - Crimean Tatar Youth Centre Block 6,901 5
Crimean Federation of National Wrestling Kureş 6,728 5
Adalet 5,197 4
Maarifçi 4,587 4
A. Wilson / Security and Human Rights 24 (2013) 418–431 427
Movement and Adalet (‘Justice’) party are also largely pro-Mejlis, as is the
education NGO Maarifçi (‘Educator’). Kureş was backed by the businessman
Lenur Isliamov, who launched the Crimean Tatar mini-media project
ATR (he also supported the fijilm Haytarma – see below). The ‘Youth Centre’
claimed to be a constructive opposition.
İnkişaf (‘Development’) was in theory also a ‘constructive opposition’
based in Sakskii region, backed by businessman Eskender Bilialov. However,
it was accused of being a pro-Mohyliov front, via Crimean Vice Premier
Aziz Abdulaiev, who was using ‘administrative resources’ (state pressure) to
enlist support. İnkişaf’s main purpose was supposedly to undermine the
Mejlis where it was most vulnerable, by siphoning offf business supporters
and even businesses linked to leaders of the Mejlis.22 Indeed, its campaign
budget was large.23 İnkişaf only won eight seats, but at least it made the
elections more competitive, which might strengthen the Qurultay in the
long run. Other elements of the Crimean Tatar ‘opposition’, like Milli Firka,
boycotted the vote.
The fijirst session of the new Qurultay in October 2013 led to a change of
leader, with the retirement of veteran leader Mustafa Dzhemilev, born in
1943, whose youngest son was caught up in a murder case in May 2013, and
his replacement by Refat Chubarov, who beat his rival Remzi Ilyasov, who is
allegedly close to Aziz Abdulaiev, by 126 votes to 114. The new Mejlis was
clearly more pluralistic, if not in a way of which old-style Mejlis leaders
necessarily approved.
The Needs Assessment
The fijirst step towards a proper needs assessment is to be precise about facts
and fijigures. Even the very size of the FDP population is disputed, in part
because of the unclear legal environment. Ukraine has only held one post-
Soviet census since the last all-Soviet census in 1989, and that was late, in
2001. Its successor is even later, still unscheduled in 2013. But we can say
that the Crimean Tatar population has grown, albeit not at the rate expected
during the early 1990s. The verifijied number is now 266,000, which is a
22 Andrei Latinin, ‘New Crimean-Tatar Project “Under Mogilev” is designed to keep the
business of the Mezhlis and its “purse-holders”’, Novyi Region-Krym , 31 May 2013, www.nr2
.ru/crimea/441532.htm. Cf‘İnkişaf is not a project of Mohyliov, NGO’s leader’, 4 July 2013,
http://qha.com.ua/inkisaf-is-not-project-of-mohyliov-ngo-s-leader-128264en.html.
23 One source said 300,000 UAH ($37,000), İnkişaf leaders claimed 40,000 UAH; İnkişaf is
not a project of Mohyliov.
428 A. Wilson / Security and Human Rights 24 (2013) 418–431
higher overall percentage, 13.6%, of the overall population of Crimea, as
the latter has shrunk to under two million. Higher birth rates mean that the
Crimean Tatar population is still expanding at +0.9% per annum, while
the overall population of Crimea is declining by -0.4%. As already stated,
Crimean Tatar children already make up 20% of the school population.
On the other hand, the number of other FDPs (Armenians, Bulgarians,
Germans and Greeks) has not gone back to the levels of the 1940s, when just
over 100,000 were deported, and stands at just under 5,000.
Legal status is the second key existential question after numbers, but
there is no real legal mechanism to defijine the status of FDPs (the last
attempt was vetoed by President Kuchma in 2004). The 1996 Ukrainian
Constitution refers vaguely to the rights of ‘rooted [indigenous] peoples’,
but does not say who they are (the rights of ethnic Ukrainians are separately
defijined). A mooted ‘Law on Rooted Peoples’ has never made much
progress, but a Law on the ‘Restoration of the Rights of Deported People on
Ethnic Grounds’ was passed by the Verkhovna Rada at fijirst reading in June
2012, only for further progress to be stalled.
Other legal problems include the bureaucratic hurdles and high transfer
costs that hinder the return of remaining FDPs, particularly from
Uzbekistan. The 1993 Bishkek Agreement regulating conditions for the
return of FDPs ran out in May 2013, and the Ukrainian authorities have not
yet undertaken any effforts to renew it, despite the recommendations of
both the Mejlis and the parliamentary Human Rights Committee.
Back in Crimea, land ownership needs to be properly legally defijined, and
a registry of ownership drawn up.
Ukraine’s 2012 Law on Languages, which legalises the use of minority languages
in areas with 10% or more minority population, was designed to
expand the use of Russian, but has had paradoxical efffects in Crimea. The
proposal to raise the threshold to 30% would exclude the Crimean Tatars,
who make up around 13% of the Crimean population. The Crimean
Assembly refused to discuss the issue before the October 2012 elections.
Crimea is Ukraine’s most uniformly Russian-speaking region - there are
also severe problems with the use of Ukrainian as the state language.
Crimean Tatar children are mainly taught in Russian, although some children
of the elite study in the small number of Ukrainian schools. Crimean
Tatars make up over 13.6% of the general population and 20% of the schoolage
population, but only 3% of children are taught in the Crimean Tatar
language (though twice as many take it as an elective), and usually only for
the fijirst four years. After half a century in Central Asia, most Crimean Tatars
are highly Russifijied. UNESCO categorises Crimean Tatar as an ‘endangered
A. Wilson / Security and Human Rights 24 (2013) 418–431 429
language’. There are only fijifteen Crimean Tatar schools in Crimea; between
75 and 80 are needed. Crimean Tatar media is under-developed, and the
infrastructure of cultural heritage is badly neglected. Place names were
changed overnight in 1944 and have not been changed back. Attacks on
Crimean Tatar mosques and cemeteries are frequent. The Kebir Cami
Mosque in Simferopol has been returned to active use, but the building of
the future Central Mosque on Yaltinskaya Street has been endlessly delayed.
The politics of memory still leads to culture wars in Crimea. Many local
Slavs (both Russians and Ukrainians) still believe the 1944 Deportation was
justifijied, because they still believe the discredited charges of collaboration
with the Nazis. A textbook published in 2013 once again recycled these
myths24; in contrast to a much more academic, but allegedly ‘anti-Russian’,
four-volume history of the Crimean Tatars by the Russian scholar Valeriy
Vozgrin, a former member of the Mejlis, also published in 2013.25 Also
released in 2013 was the path-breaking fijilm Haytarma , which gave a harrowing
account of the 1944 Deportation by dramatising the life of Amet-
Khan Sultan, a Crimean Tatar who fought in the Soviet Air Force, to rebut
the collaboration myth (the Mejlis has called for Simferopol Airport to be
named after him).26 The Russian Consul General to Crimea Vladimir
Andreiev was eventually forced to resign after criticising the fijilm. A similar
row broke out when Russian actor Aleksey Panin used similar words to
Mohyliov in 2008, attacking Crimean Tatars “whom Stalin had not fijinished
offf in 1944”, after a road-rage incident in August 2013.27
There are also increasing divisions in the religious sphere, although many
Crimean Tatars again claim they are artifijicial. Most Crimean Tatars belong
to Sunni ‘Spiritual Administration of Muslims of Crimea’ (DUMK), which is
close to the Mejlis. Only about 10% of registered Islamic organisations are
outside the DUMK, including various strains of radicalism; 28 but Mejlis
leaders admit that the loss of religious and cultural traditions during the
long years of exile often means that the young in particular are not
24 Vladimir and Maria Shirshovii, Memory Book of Eastern Crimea. They asked to remember
, (Kirovskii, 2013).
25 Valeriy Vozgrin, Istoriia krymskikh tatar , (St. Petersburg: Nestor-Istoriia, 2013).
26 Oksana Grytsenko, 'Haytarma', the fijirst Crimean Tatar movie, is a must-see for history
enthusiasts’, Kyiv Post , 8 July 2013.
27 Claire Bigg, ‘Russian Actor in Trouble Over Crimean Tatar Remarks’, Radio Liberty , 23
August 2013, http://www.rferl.org/content/russian-actor-offfends-crimean-tatars/25084413
.html.
28 Ali Tatar-zadeh, ‘Four Islamic Lions on the Crimean Savanna’, Media Krym , 4 July 2011,
http://risu.org.ua/en/index/studios/studies_of_religions/45605/.’
430 A. Wilson / Security and Human Rights 24 (2013) 418–431
insulated against the leap straight into radicalism. The dominant Church in
Crimea overall is the Moscow Patriarchate of the Orthodox Church, which
is part of the parent Church in Moscow and is often openly hostile even to
mainstream Islam (and not just to Islam, but to the rival Kyivan Patriarchate
of the Orthodox Church). As of 2013, there were only 180 mosques in
Crimea, compared to 3,000 before 1917.
The Crimean Tatars are not integrated economically. Unlike the population
pattern before 1944, settlement in the southern coastal tourist zone is
nowadays minimal. Three-quarters of the Crimean Tatar population is still
rural. An estimated 75,000 FDPs are still living in temporary, uncompleted
homes without any basic infrastructure. Between 8,000 and 15,000 still live
in ‘unauthorised settlements’. Conflicts over ‘squatting’ (samozakhvaty ) are
still frequent and often violent.
This is one area where money can make a basic diffference. The Crimean
Tatars’ ‘irregular constructions’ still lack many basic amenities, particularly
gas, water and sewage. They often live too far from public services in urban
areas. Funds are badly needed for new schools, for the uncompleted
Crimean Tatar University in Simferopil and for basic teaching materials.
A local building programme would also help with employment.
Unemployment is not as high as might be expected, but the Crimean
Tatars are highly dependent on self-employment. They are entrepreneurial,
often because they face discrimination in mainstream public and private-
sector employment, but their small trading economy is highly
vulnerable in Crimea’s highly criminalised economy and its numerous protection
rackets.
Turkey has played an increasing role,29 though one that was handicapped
until recently by Kyiv’s reluctance to give formal approval to the activities
of the Turkish aid agency, TIKA. However, Ukraine’s deteriorating relations
with the EU and pressure from Russia, plus an unspoken desire to be
another powerful state on the margin of Europe, has led to a rapprochement
between Kyiv and Ankara since 2012. Despite propaganda about the
influence of ‘foreign Islam’, Turkey is a more important force in Crimea
than Saudi Arabia or the Gulf States. The Turkish Diyanet (the offfijicial
‘Presidency of Religious Afffairs’) supports the mainstream Islam of the
DUMK. If Ukraine continues to distance itself from the EU, the Crimean
Tatars will inevitably look to Turkey even more.
29 Paul Goble, ‘Turkey’s Crimean Tatars Reach out to Their National Homeland’, Eurasia
Daily Monitor , vol. 10, no. 120, 25 June 2013.
A. Wilson / Security and Human Rights 24 (2013) 418–431 431
An International Forum
Various sources estimate that between $160 million and $300 million has
been spent in the national Ukrainian and Crimean budgets on the reintegration
of FDPs since 1991, which is a substantial sum but still inadequate
for the socio-economic situation in Crimea.
Since 2010 the Mejlis has been pushing the idea of an International Forum
to provide a broader hearing for the problems of the Crimean Tatars. Such
a Forum, in whatever format, could also serve as a donors’ conference to
raise money for the practical needs of FDPs. The Ukrainian authorities have
not formally said either yes or no, but have stonewalled on the issue. Little
progress was made in 2013, but a date nearer the 70th anniversary of the
Deportation in 2014 would carry symbolic weight.
Conclusions
Progress towards integration has been slow in the quarter of a century since
mass return to the peninsula became possible in the late 1980s. Unlike so
many other post-Communist movements, the discipline of the Mejlis has
helped to keep the Crimean Tatar movement relatively united and relatively
moderate, keeping the rise of the radical and faux-radical fringe at
bay. All that may be under threat in the next quarter century. A more
divided politics will make solving practical tasks that much harder.
Recent Developments
This article was completed before Russia’s annexation of Crimea, but can
hopefully help shed light on the events. Putin has promised to upgrade the
Crimean Tatars’ status in a Russian Crimea, but the article explains why the
leaders of the Mejlis are so sceptical. Crimea is now run by their Russian
nationalist opponents, who have been demonising them since 2010
(and earlier). They fear that the pro-Russian ‘Kazan Party’ will be favoured
by the new authorities and that the Mejlis could even be repressed after
urging a boycott of Putin’s ‘referendum’.
Annex 1019
Mike Eckel, A Cry from Crimea, World Policy Journal (2014-2015)
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independence rages on. Mikhail Vdovchenko, a native of Simferopol, Crimea,
is a mild, if somewhat outspoken Ukrainian activist who was taken as a
political prisoner and held for nine days by pro-Russian militants. Mike Eckel,
a Washington D.C.-based writer, captures Mikhail’s harrowing tale of kidnap,
torture, and eventual freedom.
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Mike Eckel is a Washington, D.C.-based writer and editor who has reported
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Annex 1020
Photoreproduction of the Document Signed by Iosif Stalin, in Paul Robert Magocsi, This Blessed
Land: Crimea and the Crimean Tatars 118, University of Toronto Press (2014)
THIS BLESSED LAND
Crimea and the Crimean Tatars
Paul Robert Magocsi
Distributed by the University of Toronto Press
for the
Chair of Ukrainian Studies
University of Toronto
2014
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in particular Russians (I percent) and
Ukrainians (22 percent).
Before World War II came to a close,
Crimea was thrust into the international
spotlight. At the outset of 1945,
when the Allied Powers were on the
verge of defeating Nazi Germany, their
leaders needed to discuss tactical issues
concerning the remaining military
campaign in Europe and, in particular,
to lay out their strategy for the postwar
world. President Franklin D. Roosevelt
of the United States and Prime Minister
Winston Churchill of Great Britain acNazi
Germany s allies: prisoners-ofwar
captured from the Romanian Army.
Annex 1021
Greta Uehling, Genocide’s Aftermath: Neostalinism in Contemporary Crimea, Genocide Studies
and Prevention 9(2015)
INTERNATIONAL ASSOCIATION O
GENOCIDE SCHOLARS
Greta Uehling, “Genocide’s Aftermath: Neostalinism in Contemporary Crimea” Genocide Studies and Prevention 9, 1 (Spring 2015):
3-17. ©2015 Genocide Studies and Prevention.
http://dx.doi.org/10.5038/1911-9933.9.1.1273
Genocide’s Aftermath: Neostalinism in Contemporary Crimea
Greta Uehling
University of Michigan
Ann Arbor, MI, USA
Abstract: The Crimean Tatars’ genocide is one of the clearest, and yet least studied of twentieth-century genocides.
This article explores that genocide’s aftermath, beginning with the Crimean Tatars’ attempts to reinscribe their
presence in their historic homeland following the 1944 deportation. The ongoing contestations over the past are
examined here as a historical habitus informing attitudes and behavior in the present. Drawing on unparalleled
interview data with the Russian-speaking population in Crimea, I explore the durability and ontological resonance
of constructions of Tatars as traitors both past and present. Ethnographic insight into the local understandings
that feed exclusion, discrimination, and hatred enhance our understanding of genocide as a social process. Given
the lack of either guilt or shame regarding the 1944 deportation, I suggest that Crimea currently lacks the cognitive
and affective foundation to create a more inclusive future.
Keywords: Genocide, Stalin, Crimea, Crimean Tatars, ethnic cleansing, commemoration, deportation, ontological
resonance
The Crimean Tatars’ genocide is one of the clearest, and yet least studied twentieth-century
1
2
3
4
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
Uehling
has called the ontological resonance of genocide. In Crimea, this ontological resonance manifests
Methods
how and why Tatarophobia
4
the Internet today.
Aftermaths: Independent Ukraine
9
Genocide’s Aftermath in Crimea
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5
11
12
Berkut
Tatars on the Ay-Petri
13
14
6 Uehling
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
The Contested Past
th
Figure 1. Billboard of Iminov painting calling for commemoration. Source: Author’s photograph.
19
21
Haytarma.
Genocide’s Aftermath in Crimea
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7
22
23
Figure 2. Promotional flyer for the film Haytarma. Source: The image is taken from the jacket of the CD, and was the
flyer for the showing of the film as well.
XAMT A PM A
Uehling
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
8
24 In light
predatel’stvo or treason.
Neostalinism
Essence of Timerd
Mejlis
Genocide’s Aftermath in Crimea
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
9
Figure 3. Stalin lauded in capitol of Crimea, 2013. Source: Информационное агентство «е-Крым» http://www.ecrimea.
info
Mejlis went
They called on the
outweighed any mistakes that were made.
29
th
31
32 Freud’s famous
delineation of melancholia from mourning is useful here.
33 This is to say that there is a central, seemingly
charged.
Uehling
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
10
Ontological Resonance
34
We can understand this as something that is simultaneously
Why Did They Kill,
I used images of Stalin collected in
39
Figure 4. Portrait of Stalin by Aleksandr Laktionov. Source: Corbescero (2011).
th and the last image showed demonstrators each
Neither guilt nor shame
Genocide’s Aftermath in Crimea
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
11
If
41
42
43
44
Uehling
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
12
Finnin thinks literary
and make amends.
felt a sense of guilt.
What this informant had disassociated from is why
The constructions of Crimean Tatars as traitors demonstrate
49
Genocide’s Aftermath in Crimea
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
13
Genocide as social practice
centered on national security, for his decision.
Clearly the change in
Uehling
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
14
The contraction of
asked rhetorically whether the authorities fully understood the meaning that the day of sorrow and
Tatars.
Genocide’s Aftermath in Crimea
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
15
Conclusion
Endnotes
Genocide Studies and Prevention
Krymskie Muzei
Genocide as a Social Practice
The Stalin Cult: A Study in The Alchemy of Power
Memory Studies
Reconciliation, Justice,
and Coexistence: Theory and Practice,
Reconciliation, Justice, and Coexistence: Theory and
Practice
focused on the genocide of the Crimean Tatars.
Shaping History: Narratives of Political Change”
Uehling
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
16
Journal
of Genocide Research
Journal of Genocide Research
Journal of Genocide Research
Journal of Genocide Research
Information Provided by the
of Racial Discrimination”
Society Must be Defended: Lectures at the College de France 1995-1996
Beyond MemoryThe Crimean Tatars’ Deportation and Return
Nationalities
Papers
A Homeland Lost: Migration, the Diaspora Experience and the Forging of Crimean Tatar National
Identity Beyond Memory: The
Deportation and Return of the Crimean Tatars
Nationalities Papers
Globalizations and Social
Movements,
Foucault Studies
.
Tolerant Textbooks – Tolerant Society
The Political Lives of Dead Bodies
.
Myth, Memory, Trauma
31 Myth Memory, Trauma
The Pelican Freud Library.
Specters of Marx: The State of the Debt, the Work of Mourning and the New
InternationalAfter Empire. Melancholia or
Convivial Culture
33 Myth Memory Trauma
Outline of the Theory of Practice
Genocide’s Aftermath in Crimea
©2015 Genocide Studies and Prevention 9, no. 1 http://dx.doi.org/10.5038/1911-9933.9.1.1273
17
The Logic of Practice
Why Did They Kill?: Cambodia in the Shadow of Genocide
Russian History
42
Remembering Stalin’s Victims: Popular Memory and the End of the USSR
Modern Language Review
The Political Lives of Dead Bodies
Soziologische Schriften II, Gesammelte Schriften
Gesammelte Schriften
The Inability to Mourn: Principles of Collective
Behavior
Psychoanalysis, Culture and Society
Representing the Holocaust: History, Theory, Trauma
The Guardian
Genocide as a Social Practice, 14.
.
Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions
crimeastan.
Volume XXVI - Annexes 990-1021