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 XXVII OF THE ANNEXES
TO THE MEMORIAL
SUBMITTED BY UKRAINE
12 JUNE 2018
TABLE OF CONTENTS
Annex 1022 Mosche Hirsh, Social Identity, International Groups, and International
Law at 96, in Invitation to the Sociology of International Law (2015)
Annex 1023 Thomas D. Grant, Aggression Against Ukraine: Territory, Responsibility,
and International Law (2015)
Annex 1024 Andrew Wilson, The Crimean Tatar Question: A Prism for Changing
Nationalisms and Rival Versions of Eurasianism, 3(2) Journal of Soviet
and Post-Soviet Politics and Societies (2017)
Annex 1025 Michael Kofman et al., Lessons from Russia’s Operations in Crimea and
Eastern Ukraine, RAND Corporation (2017)
Annex 1026 Regional Centre for Human Rights, et al., Crimea Beyond Rules: Thematic
Review of the Human Rights Situation under Occupation, Vol. 3, Right to
Nationality (citizenship) (2017)
Annex 1027 Natan Lerner, The UN Convention on the Elimination of All Forms of
Racial Discrimination (2015)
Annex 1028 Yevhen Fedchenko, Kremlin Propaganda: Soviet Active Measures by
Other Means, Estonian Journal of Military Studies, Volume 2 (2016)
Annex 1029 Patrick Thornberry, The International Convention on the Elimination of
All Forms of Racial Discrimination: A Commentary (2016)
Annex 1030 A.E. Antoniuk, National Coordinator of International Center for the Study
of the Preservation and Restoration of Cultural Property in Ukraine,
Letter No. 12 (April 2018)
Annex 1031 Center of Monument Studies, "Restoration" of the Great Khan Mosque
(Biyuk Khan-Djami) in Bakhchisaray: On the Tile Roofing (14 March
2018)
Annex 1032 G. Verdirame, The Genocide Definition in the Jurisprudence of the Ad Hoc
Tribunals, 49 International and Comparative Law Quarterly (2000)
Annex 1033 Askold Krushelnycky, Ukraine: Crimea's Tatars -- Clearing The Way For
Islamic Extremism?, RFE/RL (26 August 2004)
Annex 1034 RFE/RL, Crimean Tatars Demand Their Rights Be Respected (10
December 2012)
Annex 1035 RFE/RL, Activists on Wheels: Ukraine's Embattled Automaidan
Protesters (24 January 2014)
Annex 1036 Roland Oliphant, Vigilante Units to Defend Crimea City Against ‘Fascist’
Threat from Kiev, The Telegraph (25 February 2014)
Annex 1037 Harriet Salem et al., Crimean Parliament Seized by Unknown Pro-Russian
Gunmen, The Guardian (27 February 2014)
- ii -
Annex 1038 ABC News, Crimean Parliament Votes to Become Part of Russian
Federation, Referendum to be Held in 10 Days (6 March 2014)
Annex 1039 Natalia Antelava, Who Will Protect the Crimean Tatars, The New Yorker
(6 March 2014)
Annex 1040 BBC News, Pro-Ukraine activists beaten up in Crimea (9 March 2014)
archived at https://www.bbc.com/news/av/world-europe-
26504449/pro-ukraine-activists-beaten-up-in-crimea
Annex 1041 Simon Shuster, Putin's Man in Crimea Is Ukraine's Worst Nightmare,
Time (10 March 2014)
Annex 1042 Harper blasts Crimea referendum, protesters express solidarity with
Ukraine, CBC (16 March 2014)
Annex 1043 Paul Roderick Gregory, Putin’s Destabilization of Ukraine Overshadows
Today’s Crimean Vote, Forbes (16 March 2014)
Annex 1044 Merkel: Crimea grab 'against international law', The Local (18 March
2014)
Annex 1045 U.S., NATO Allies Condemn Russian 'Land Grab' In Ukraine, RFE/RL (18
March 2014)
Annex 1046 Oleksandra Nezvanna, The “Diva” of Crimean Education Statistics, Holos
Krymu,Voice of Crimea (25 September 2015)
Annex 1047 RFE/RL, The Editors of the Crimean Tatar Newspaper Are Summoned for
Interrogations on Suspicion of Extremism (3 June 2014)
Annex 1048 Interfax, Head of Crimean Acknowledges Disappearance of Crimean
Tatars on Peninsula (16 October 2014)
Annex 1049 Anna Andriyevska, Volunteers of the Crimea Battalion, Center for
Journalistic Investigations (11 December 2014)
Annex 1050 Kommersant, The Crimean Tatar Ego (3 March 2015)
Annex 1051 DW, Putin Reveals Details of Decision to Annex Crimea, (9 March 2015)
Annex 1052 RFE/RL, Russia Celebrates Crimea Annexation Anniversary (16 March
2015)
Annex 1053 Tom Parfitt, Crimea, One Year On: The Night Wolves Howl for Putin, The
Telegraph (17 March 2015)
Annex 1054 Thomas J. Reese & Daniel I. Mark, Losing Their Religion in Crimea,
Foreign Affairs (15 April 2015)
Annex 1055 RFE/RL, Crimean City Cuts Off Ukrainian TV Channels (18 April 2015)
Annex 1056 Novosti Kryma, In Crimea, First-Graders No Longer Study in Ukrainian
(24 August 2015)
- iii -
Annex 1057 The Economist, Back Into Exile (18 June 2015)
Annex 1058 Andrii Ianitski, Crimean Tatar TV Back on Air, Open Democracy (30 June
2015)
Annex 1059 Intentionally Omitted
Annex 1060 Intentionally Omitted
Annex 1061 Mejlis of Crimean Tatars Were Not Allowed to Take Action in Simferopol
to Human Rights Day (11 December 2015)
Annex 1062 Interview with Sergey Meniaylo, the Governor of Sevastopol Published on
Meduza.ru (18 March 2016)
Annex 1063 RFE/RL, Punitive Medicine? Crimean Tatars Shaken By Leader’s
Confinement to Mental Asylum (25 August 2016)
Annex 1064 RFE/RL, Russia Detains 11 Crimean Tatars (22 February 2017)
Annex 1065 Tanya Cooper & Yulia Gorbunova, Russia is Violating Crimeans’ Rights,
Kyiv Post (3 May 2017)
Annex 1066 RFE/RL, Crimean Tatar Leader Umerov Goes On Trial On Separatism
Charge (7 June 2017)
Annex 1067 RFE/RL, Crimean Tatar Leader Umerov’s Trial Resumes in Simferopol
(21 June 2017)
Annex 1068 RFE/RL, Crimea: Political Activists Who Were Killed, Kidnapped, or Went
Missing (30 August 2017)
Annex 1069 RFE/RL, Russian Court Convicts Crimean Tatar Leader Umerov of
‘Separatism’(27 September 2017)
Annex 1070 RFE/RL, Crimean Tatar Leaders ‘Freed,’ Fly To Turkey (26 October 2017)
Annex 1071 RFE/RL, Veteran Crimean Tatar Activist Dies As Associates Detained By
Russia (23 November 2017)
Annex 1072 Ellen Nakashima, Inside a Russian Disinformation Campaign in Ukraine in
2014, Washington Post (25 December 2017)
Annex 1073 Tony Wesolowsky, Facelift Or Farce? 'Restoration' Of Palace Shocks
Crimean Tatars (18 February 2018), accessed at
https://www.rferl.org/a/crimea-khan-s-palace-restoration-bakhchisaryshock-
tatars-persecution-unesco/29046866.html.
Annex 1074 Interfax, FSB Detains Activist of Ukrainian Cultural Center in Crimea (12
January 2017)
Annex 1075 The Guardian, Crimea Children’s Theatre Forced to Shut for ‘Promoting
Western Propaganda (6 January 2016)
- iv -
Annex 1076 Hromadske International, The True Cost of Remaining Ukrainian in
Crimea (2 April 2018), accessed at
https://en.hromadske.ua/posts/exclusive-the-true-cost-of-remainingukrainian-
in-crimea.
Annex 1077 Back Into Exile, The Economist (18 June 2015)
Annex 1078 Lilya Palveleva, Ukrainian Filmmaker Remains Behind Bars Despite
Growing Support, RFE/RL (26 June 2014)
Annex 1079 Masha Gessen, Opinion, Oleg Sentsov and the Kremlin’s Thin Skin, N.Y.
Times (28 August 2015)
Annex 1080 RFE/RL, Ukrainian Filmmaker Sentsov Reportedly To Be Transferred To
Russian Far North Prison(30 September 2017)
Annex 1081 RFE/RL, Ukrainian Jailed in Crimea over Euromaidan ‘Murder’ Charge
(10 June 2016)
Annex 1082 Max Seddon, Moscow Cracks Down on Embattled Crimea Tatar
Dissidents: Russian Tactics Echo KGB Practice of Forced Psychiatric
Confinement, Financial Times (11 October 2016)
Annex 1083 Christina Paschyn, Russia Is Trying to Wipe Out Crimea’s Tatars, N.
Y.Times (19 May 2016)
Annex 1084 RFE/RL, Russian Court Convicts Crimean Tatar Leader Umerov of
‘Separatism’ (28 September 2017)
Annex 1085 Ukrainian Parliament Commissioner for Human Rights, Officially: Mr.
Oleg Sentsov Is the Citizen of Ukraine (8 April 2015)
Annex 1086 Media Relations Department of Sevastopol City Council, Results of the
Crimea-wide Referendum of March 16, 2014 Ratified at the Session of the
City Council (17 March 2014)
Annex 1087 A Monument “Sergius of Radonezh - the Collector of Russian Land” Was
Opened in Simferopol (6 June 2014), archived at
http://crimea.gov.ru/foto/society/0606142
Annex 1088 Solemn Meeting of Residents and Guests of Simferopol, Dedicated to the
215th birthday of Alexander Sergeevich Pushkin (6 June 2014), archived
at http://crimea.gov.ru/foto/society/060614
Annex 1089 U.S. Department of State, 2015 Human Rights Reports: Ukraine (Crimea)
(13 April 2016)
Annex 1090 In Yalta the Solemn Opening of the XI International Festival “Great
Russian Word” Was Held (6 May 2017), archived at
http://crimea.gov.ru/foto/society/050620177.
Annex 1091 Oxford English Dictionary “ethnicity” (last accessed 4 June 2018),
http://www.oed.com/
- v -
Annex 1092 Oxford English Dictionary “effective” (last accessed 22 May 2018),
http://www.oed.com/.
Annex 1022
Mosche Hirsh, Social Identity, International Groups, and International Law at 96, in Invitation
to the Sociology of International Law (2015)
Social Identity, International Groups, and International Law
162
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Invitation to the Sociology of International Law
Moshe Hirsch
Print publication date: 2015
Print ISBN-13: 9780199688111
Published to Oxford Scholarship Online: December 2015
DOI: 10.1093/acprof:oso/9780199688111.001.0001
Social Identity, International Groups, and
International Law
Moshe Hirsch
DOI:10.1093/acprof:oso/9780199688111.003.0004
Abstract and Keywords
Chapter 4 addresses the concept of social identity and
interrelationships between identity and international law. Social
identity constitutes a conceptual bridge between individuals and
collective groups (like peoples or minority groups) or between such
collective groups. Numerous international legal rules are infused with
social identities and international law often institutionalizes collective
identities. Diverse identities (e.g. regional, ethnic, and historical) often
affect the perception, judgment, and behaviour of international legal
actors. The chapter exposes the key elements of social identity and
briefly discusses mutual links between international law and social
identity. It elaborates on the links between the European Unions
identity and its external trade law aimed at promotion of compliance
with international human rights law. The potential of social identity
literature as an instrument to interpret certain international legal
provisions is illustrated with regard to the definition of minority
groups as well as to rules concerning disualification of adjudicators.
Keywords:social identity,sociology,international law,inter-group relations,European
Union,Human rights,regional identity,minority groups,social constructivism,international
trade law
University Press Scholarship Online
Oxford Scholarship Online
/via4i0. %
THE SOCIOLOGY OF
INTERNATIONAL LAW
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Who I am is closely interwoven with ideas about the society in
which I live and the views of others who also inhabit that same
social context Identity involves personal investment, often on a
massive scale, to the extent that people are willing to die to claim
or protect their own identities, but it is always socially located.
Kath Woodward,Understanding Identity1
I.Introduction91
II.Social Identity93
a.Key issues in social identity93
b.The construction of social identity95
c.The consequences of social identity98
III.Identity in International Relations102
IV.Social Identity and International Law104
a.Identity matters104
b.International institutions identity and the
enforcement of human rights treaties by EU
trade measures106
c.Social identity as an interpretative tool116
V.Concluding Remarks126
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I.Introduction
International law is infused with social identities. States and other
international actors operate in multilayer maps, and factors located on
their identity maps often motivate and constrain their activities in the
international legal(p.92) system. Collective entities (such as states
and international institutions) hold multiple identities; some are
institutionalized in various legal rules, while others are semiinstitutionalized
in diverse soft laws or informal international groups.
These identities often affect the perception, judgment, and behaviour of
international actors, including their positions and the behaviour they
undertake regarding international legal rules. Thus, for example,
national identities influence states decisions to develop or employ
certain weapons of mass destruction, and international institutions
identities motivate certain international actors to promote compliance
with international human rights treaties. Economic and political
dimensions of international law are often overlain with a social identity
dimension. While, in reality, these dimensions are inseparable, this
chapter is devoted to a social identity analysis of international law.
Identity is a central concept in the sociologys established conceptual
toolbox.2The term identity has become central to many fields of
sociology and social science over recent years.3Identity matters in our
daily life and affects peoples perceptions and attitudes towards other
people, as well as their own behaviour. As enkins explains: one of the
first things that we do on meeting a stranger is attempt to identify
them, to locate them on our mindscapes.4Prominent identities
include ethnicity, nationality, geographical location, gender, religion,
occupation, and historical roots.
SectionIIexposes the basic tenets of social identity and SectionIII
briefly examines the role of identity in international relations literature
(according to the constructivist approach). SectionIV(a)discusses
certain links between international law and social identity (including
rules regarding the use and production of weapons of mass destruction
(WMD)). SectionIV(b)analyses the links between the European Unions
(EU) identity and its external trade policy aimed at the promotion of
compliance with international human rights law. SectionIV(c)explores
the employment of social identity tools as a complementary
interpretative instrument to clarify the content of certain international
legal provisions (such as those relating to minority groups and
disqualification of adjudicators). SectionVprovides a summary of our
conclusions and suggests some topics for future research.(p.93)
II.Social Identity
a.Key issues in social identity
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Social identity5has been explored in the sociological literature and in
the social psychological literature.6Though the two perspectives on
identity present some differences regarding their origin, orientation,
and language,7there are also substantial similarities and overlap. In
most cases, the differences are a matter of emphasis.8As Stets and
Burke note, concepts developed in both spheres always and
simultaneously influence perception, affective relations, and
behaviour.9This chapter combines theoretical tools and empirical
findings drawn from both sociological and social psychological
scholarship.
The concept of identity is closely associated with the symbolicinteractionist
approach in sociological literature.10As discussed in
Chapter2, this micro- sociological approach analyses social behaviour
in terms of daily interactions between people, as well as between the
individual and the wider social structure.11From this perspective,
identity is a pivotal concept which mediates the relationships between
individuals and the social group.12Individuals hold multiple identities
that vary in their relative overall importance, and each one is
represented in the individuals mind.13Jenkins defines identity as
follows:
As a very basic starting point, identity is the human capacity
rooted in languageto know whos and who This involves
knowing who we are, knowing who others are,(p.94) them
knowing who we are, us knowing who they think we are, and so
on.This is a multi-dimensional classification or mapping of the
human world and our places in it, as individuals and as members
of collectives.14
People have individual and collective identities, and these aspects of
social identity are tightly bound together within the embodied self.15
Personalidentity differentiates ones self from other individuals and
includes personal traits and the selfs social categorization into social
groups (e.g., by membership in certain groups).16In addition to
personal identity, people identify themselves collectively;collective
identificationevokes imagery of people who resemble one another and
share inter-subjective characteristics.17Despite this analytical
distinction between personal and collective identities, it is often
impossible in reality to disentangle group identity from personal
identity.18
Two dynamic elements stand at the heart of social identity (both
personal and collective): similarity and difference. Individuals and
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groups need a certain level of both similarity to and differentiation from
others, and social identity derives from the fundamental tension
between the sense of belonging and the sense of distinctiveness.19
Generally, social psychological scholarship tends to emphasize that
identity and its cognitive consequences deriving from group
membership. Sociological literature inclines to underline the dynamic
and interpretative aspects of identity, and particularly its link to the
social role,20underscoring that having a particular identity often
pressures individuals to behave according to social expectations related
to the particular role (such as parent or teacher).21Where people
identify with a group or social role, they tend to adopt the meaning that
accompanies the(p.95) particular identity, and act accordingly to
represent that meaning.22In this sense, identity is the set of meanings
that are tied to the self, and those meanings often operate across
various social roles and situations.23
Social groups, like individuals, strive to establish their identity and this
group identity often outlives its members.24Groups interact with other
groups and their individual members to construct a group identity. This
collective identity has two dimensions: the identity of the particular
group vis--vis its members, and the groups identity as it relates to
other groups.25Groups and individuals identified with the group
maintain reciprocal relationships; individuals affect the development of
the group identity, and the group guides the actions of its members.26
Groups strive to establish an independent identity from other groups,
and also struggle with group members to maintain the groups identity
equal to, if not more important than, the individual members identity.27
b.The construction of social identity
Social identity is formed in a dialectic process between internal and
external categorizations. Human beings have the propensity to
categorize individuals into groups,28and social categorizationsboth
internal and externalare cognitive tools that segment, classify, and
order the social environment. These categorizations do not merely
organize the social world, they also provide a system of orientation for
self-reference: they define the individuals place in society.29Individuals
define themselves as belonging to some social groups, and certain
aspects of their self-image are derived from the social categories to
which they perceive themselves as belonging. Individuals selfcategorize
themselves differently according to the contexts in which
they find themselves and the contingencies with which they are
faced.30Thus, individuals always act in the context of a complex social
structure out of which multiple identities emerge.31(p.96)
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Social categorization:
The identity formation process begins with categorization undertaken
by an external collective group or categorization that is done internally
by the individual.32In both cases, identity emerges (and is maintained)
within a two-way relationship between self-categorization and collective
categorization. Thus, individuals present themselves in a particular way
and that presentation is accepted or contested by significant others,
and others responses feed back to the presenter. Similarly, individuals
may internalize collective identity into their self-identity and that
internalization is likely to modify the way they present themselves to
others.33Consequently, some scholars view the identity construction
process as negotiations between individuals and the collective.34
Internal or external aspects of identity may be dominant at different
stages of identity formation and often interact simultaneously.35
Boundaries:
As discussed above, identity consists of two core elements of similarity
and difference. Some scholars emphasize the role of highlighting the
differences (boundaries) between social groups in the process of
constructing and maintainingcollective identity.36Barth explains (in
the context of ethnic groups) that groups only persist as significant
units if they imply marked difference in behaviour, i.e., persisting
cultural differences.37From this perspective, group identification is
constructed across the group boundary;38highlighting difference visà-
vis other groups generates internal similarity among the group
members.39
Symbols and ritualsare often part of the formation and maintenance of
group identity.40Symbols and community rituals often generate or
reinforce a sense of shared belonging.41These symbols spawn an image
of group homogeneity and often mask diversity among members of the
identity group. Thus, symbols allow individual diversity and collective
similarity to co-exist within social groups.42(p.97)
Language(including dialect) and the construction of social identity are
inextricably linked.43Language indicates how societies classify their
environment (both physical and social) and each social group has its
own distinctive system of classification, which, in part, maintains
boundaries between insiders and outsiders.44Thus, to choose one
language over another provides an immediate and universally
recognized badge of identity.45Language often reflects distinctive
regional, ethnic, religious, or historical backgrounds. Ethnic groups
may utilize language as a symbolic means of fostering or developing
identity, or as a means of defence against encroachment by outsiders.46
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Collective narratives and memoriesoften contribute to the emergence
and maintenance of social identities.47Collective narratives place an
identity group within a historically constituted world, and they render
the world intelligible and coherent to their members.48Such stories49
constitute narrative bonds that frequently delineate the social groups
boundaries.50Collective memories51occasionally produce a
commemorative narrative about a particular past.52Such social
memories often suggest a moral message and provide some normative
guidelines regarding the appropriate behaviour.53Collective memories
preserve the store of knowledge from which the group derives
awareness of its unity and peculiarity.54
Institutionsoften reflect and reinforce identities.55Most collective
identities are institutionalized to a certain degree, and the prominent
examples are ethnic56(p.98) or gender identities.57Organizations58
(such as nation states) are occasionally involved in shaping social
identities,59and particularly in collective identification. Organizational
memberships are aspects of individual identity.60People join
organizations,inter alia, to acquire a new identity or validate an
existing one.61The organizational identity of individuals also depends
on other members recognition and may involve negotiations with the
organizations gate-keepers.62The acceptance of new members to the
organization is frequently accompanied by certain rites of passage
that invest collective identities, thus making the new members feel
that they belong to the group.63Some organizations (like criminal
courts) possess the capacity to authoritatively identify people
(individually or collectively) as belonging to a certain group and thus
may stigmatize their incumbents.64
Social identities are fluid and the identity formation process is never
final; not even death freezes the picture.65Identity may well change at
different stages of socialization,66due to a change in the relevant
comparison (the Other), or in response to the changing societal
context.67
c.The consequences of social identity
A change in identity is a stick poked into a pond; ripples spread in all
directions.68Identities often generate significant practical
consequences. The impact of identity is particularly evident regarding
peoples perception, evaluation, and behaviour. It is noteworthy that the
link between identity and behaviour is neither straightforward nor
always predictable. Identity is likely to have a certain impact but does
not determine everything.69Identity salience is a major factor that
affects the activation of identity in a particular situation.
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Identity salience:
As noted above, each person and each group have multiple identities
and it is not certain which identity is more likely to influence
individuals or groups in a particular context. Even in the absence of
multiple identities, a similar question arises regarding the factors
affecting the likelihood of activating(p.99) a single identity. Identity
salience refers to the probability that an identity will be invoked and
form the basis for action in diverse situations.70Identity salience
includes quantitative and qualitative components. The quantitative
element relates to the number of people or groups to whom a person or
group is tied through identity. Generally, the more people or groups are
tied to a particular identity, the more likely it is that a specific identity
will be activated. The qualitative aspect relates to the relative strength
of identity ties with other people or groups which are associated with
the particular identity. Generally, stronger identity ties are more likely
to lead to a more salient identity.71
Depersonalization:
Once an identity is activated, the core process underlying many
consequences relates to depersonalization (i.e., viewing people as a
function of their respective group membership, rather than in terms of
their individual characteristics or interpersonal relationships).72
Depersonalization effectively brings self-perception and behaviour into
line with the relevant in-group prototype, thus transforming the self
from being a unique individual into a member of the group73and
transforming individuality into group behaviour.74Once identity is
activated, the main impact relates to peoples perception (including
self-perception), evaluations (including self-evaluation), and behaviour
towards other people.75
Perception:
At the cognitive level, the activation of social identity leads individuals
identified with a group to accentuate perceived similarities between the
self and other in-group members, and people tend to perceive
themselvesas more similar to other group members.76Individuals also
tend to emphasize perceived similarities among the group members77
and this stereotyped perception enhances the sense of group
homogeneity.78On the other side of the identity boundary,(p.100)
identification with a group tends to sharpen the perceived differences
between group members and out-group members;79out-group
members are more likely to be perceived as undifferentiated.80
Evaluation:
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Identification with a group tends to enhance self-evaluation which
constitutes a motivation for social identification.81The enhanced selfworth
that accompanies group identity does not regularly accompany
unilateral identification with a group but it rather derives from the
groups acceptance of the individual as a member.82People identified
with a particular group tend to evaluate members of the group
positively83and to evaluate people belonging to other groups negatively
(the latter attitude tends to further enhance their own self-esteem as
group members).84Perceived similarity within the group tends to
promote greater liking, trust, and solidarity with in-group members.85
Group identity is often accompanied by stereotyping, (i.e., attributing
specific personal traits to people based on their membership in a social
group).86
Behaviour:
Identification with a group demands some loyalty and behavioural
conformity, and group members orient their behaviour towards other
members.87From a social psychological perspective, conformist
behaviour is a natural corollary of the group members similar
perceptions.88As discussed above, the sociological analysis of identity
emphasizes the important function of social role,89and enacting the
role according to the groups expectations is likely to enhance selfesteem.
A perception of poor role performance may engender doubts
about self-worth, and produce symptoms of distress.90(p.101)
From a legal perspective, the most undesirable impacts of social
identity relate to behaviour towards non-members. Identification with a
group is very often accompanied by the tendency to provide in-group
members better treatment (favouritism) and discriminatory treatment
towards out-group members.91Tajfel and Turner, after surveying
empirical studies, conclude:
All this evidence implies that in-group bias is a remarkably
omnipresent feature of inter-group relations results of relevant
studies all showing that the mere perception of belonging to
two distinct groupsthat is, social categorization per seis
sufficient to trigger inter-group discrimination favouring the ingroup.
In other words, the mere awareness of the presence of an
out-group is sufficient to provoke inter-group competitive or
discriminatory responses on the part of the in-group.92
Furthermore, empirical evidence suggests that undertaking a
behaviour that creates a difference between two groups is more
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important to a groups members than following an efficient economic
strategy which increases the gains for in-group members.93
Favouritism and discriminatory treatment towards out-group members
enhance group identification and collective self-esteem of in-group
members.94Perceived discrimination, however, also tends to increase
group identification among members of the discriminated group.95
Group identification often leads to competitive or hostile behaviour
towards out-group members but it depends on various factors,96such
as subjective beliefs about the nature of relations with the out-group.97
Thus, social identity affects peoples perceptions and attitudes towards
others, as well as their own behaviour. In addition to sociological and
social psychological literature, social identity analysis of international
law also draws on the social constructivist approach in international
relations literature.(p.102)
III.Identity in International Relations
Social identity (and particularly collective identity) is a core concept of
the social constructivist approach in contemporary international
relations literature;98sociological scholarship has significantly
influenced the development of this perspective on international
politics.99According to the constructivist approach, the international
system and states are not exogenously given and do not exist
independently of the thoughts and ideas of the people involved.100
International politics and related concepts are human creations and
exist as inter-subjective beliefs that are widely shared among people.101
Thus the social world is a world of human conscious that includes
language, signals, and understanding among human beings, and
especially groups such as states.102
Identity (and particularly collective identity) is one of the key concepts
in the constructivist scholarship,103and Hopf states that identities are
the most proximate causes of choices, preferences, and action.104
Certain constructivist writings on identity draw on sociological (and
particularly on symbolic-interactionist) literature as well as social
psychological literature.105States identities are constructed by their
interaction with other international actors, domestic societies, and
international social structures.106The role of collective identities
(including(p.103) corporate identities like states)107is particularly
underlined in that literature.108Wendt argues that collective identities
(bilateral, regional, or global) vary by issue, time, and place.109Thus, a
state may have multiple identities, such as sovereign, leader of the
free world or imperial power.110
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The social constructivist perspective seeks to clarify the links between
state interests, norms, and identity. Constructivists argue that identity
formation occurs before, or at least concurrently with, interest
formation.111Collective identity strongly implies a particular set of
interests. Hopf presents the exampleof the identity of a great power
which implies specific interests differing from those implied by the
identity of a uropean Union member112From this perspective,
interests are dependent on identities,113and Wendt states: how a
state satisfies its corporate interests depends on how it defines the self
in relation to the other, which is a function of social identities at both
domestic and systemic levels of analysis.114Consequently, changes in
state identity also affect national security interests and policies of
states,115and call for taking particular actions.116
Norms either affect the formation of identities in the first place
(generating expectations of new particular identities in a given context)
or prescribe behaviours for already constituted identities (generating
expectations about how a particular identity will influence behaviour in
varying circumstances).117The link between norms and identity is
particularly strong with regard to constitutive norms that define group
membership.118The above links between identity and norms indicate
that identities and the norms associated with them ensure a(p.104)
minimal level of predictability. Thus, durable expectations between
international actors require inter-subjective identities that are
sufficiently stable to ensure a predictable pattern of behaviour in the
international system.119
Social identity analysis of international law is often associated with the
constructivist approach in international relations literature. As
elaborated below, collective identity often facilitates, motivates, and
constrains activities of collective actors in the international legal
system.
IV.Social Identity and International Law
a.Identity matters
Numerous international legal rules and concepts are infused with social
identity. International law often institutionalizes (to various degrees)
identities that are encoded into diverse international instruments. Thus,
international legal rules and concepts often reflect and affect identities
of major collective groups in the international community, including
states, regional groups (such as the MERCOSUR120or the EU)121or
semi-institutionalized groups (such as the G-20).122
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Exploring international law from a social identity perspective enables
an understanding of significant processes involved in the evolution of
international law and its implementation in reality. As elaborated below,
social identity analysis may not only shed light on past and present
trends in international law, but also bear significant implications for the
interpretationof existing legal provisions, as well as offering some
suggestions regarding practical measures to enhance the effectiveness
of certain international legal mechanisms.
States and other international groups have multiple identities and often
present different identities in various subsets of the international
system (in regional and global arenas or in different sectors of
international law). Thus, a state may be identified with its role as a
leader in a particular sector of international law while not purporting
to lead in other spheres. These different identities affect the behaviour
of states in negotiations leading to international treaties (such as
climate change agreements)123or their responses to violation of human
rights treaties.124(p.105)
The identity of international actors is frequently influenced by physical
factors, such as the geographical region, but this is not necessarily the
crucial factor. Some states located in Asia or Oceania may, for instance,
belong to an international identity group outside their geographical
region.125National identities often relate to the ethnic or religious
composition of the states population, its historical roots (e.g., colonial
ties), and other socio-cultural traits. Collective identities are
occasionally linked to international networks in which states and
international institutions are embedded (formal regional institutions or
various informal groups like the G-20).126As elaborated below,
collective identities are often involved in the formation of international
institutions, frequently relating to the national identity of their
members or other international institutions with which they are
affiliated.127
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Weapons of mass destruction:
The production and use of WMD are occasionally related to the
collective identity of international actors. The impact of national
identity is notable on the employment of chemical weapons. Price and
Tannenwald emphasize the link between the legal prohibition against
using chemical weapons and the identity of a civilized nation. Their
study reveals that the origins of the chemical weapons taboo were
implicated in exclusionary practices that distinguished between
civilized and uncivilized areas of the globe.128The breaches of this
legal prohibition and their justification (e.g., by Italy against Ethiopia in
19356,129and by Iraq in 1998) reflect the understanding that modern
warfare between industrialized states is qualitatively different from war
involving an uncivilized nation.130They explain that [t]he symbolic
connection of CW [chemical weapons] with standards of civilized
conduct has made it more difficult for advanced nations to employ
these weapons against each other.131Thus, compliance with the legal
prohibition to employ chemical weapons is occasionally tied to the
identity of civilized nation.(p.106)
Collective identities are occasionally involved in the production of
nuclear weapons. In a well-known article published inInternational
Security, Sagan presents three states motivations for developing
nuclear weapons: increasing national security against foreign threats;
advancing domestic and bureaucratic interests; and providing an
important normative symbol of a states modernity and identity.132
Regarding the link between this powerful weapon and national
identity,133Sagan presents some nuclear decisions as serving important
symbolic functionsshaping and reflecting a states identity.134The
significant link between decisions to build nuclear weapons and
national identity135was evident, for example,136in Frances
development of nuclear weapons in the 1950s137and its reluctance to
stop nuclear testing in the mid-1990s.138The influence of national
identity on nuclear weapons policy is explicit in Japans policy after
World War II. As Mochizuki explains, Japans decision not to build
nuclear weapons relates not only to pragmatic pacifism but also to the
central motive relating to its national identity as a peace state.139
The following sections elaborate on the impact of the EUs collective
identity on promoting the enforcement of human rights treaties, as well
as the employment of theoretical tools and empirical evidence drawn
from social identity literature as an interpretative instrument to clarify
the content of certain international legal rules.
b.International institutions identity and the enforcement of human rights
treaties by EU trade measures
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International institutions identity:
The formation and activities of international institutions often reflect
collective identities. Membership in these organizations often
represents various identity ties, such as regional (e.g., Organization for
American States that also represent certain ideological traits);140
religious (e.g.,(p.107) Organization for the Islamic Conference);141
historical (e.g., the Commonwealth of Nations);142or ideological (e.g.,
NATO).143
The identity of an international institution144regularly co-exists with
(and is often related to) its members national identities, as well as with
the identities of other international institutions with whom it is
affiliated. The latter identity link is prominent concerning the ties
between Islamic Conference, the Arab League, and the African
Union,145or between the EU and the Council of Europe.146
Like other identity groups, international institutions often construct
common symbols, including flags, anthems, a special memorial day (e.g.
to celebrate the establishment of the organization),147and,
occasionally, collective narratives as well.148The identities of
international organizations may be discerned from their constituent
documents,149and particularly provisions regarding the admission of
new members150and exclusion/suspension of existing members151
which highlight the boundaries between them and other international
groups.152(p.108)
Similarly, the practice of international institutions in other spheres
(such as sanctions imposed on non-members or decisions adopted by
their judicial organs), also contribute to the formation or change of
their identity. Occasionally, the basic instruments of international
institutions expressly aim to construct common identity.153Thus, for
example, the Constitutive Treaty of the Union of South American
Nations affirms the members determination to build a South American
identity.154
States occasionally join international institutions to reaffirm their
identity, and many states are interested in admission to an organization
like the OECD that projects an image of a prestigious club155or the
rich mans club.156International institutions also affect the
international identity of states (includingnon-members) by classifying
them according to level of development (e.g. least developed
states157or developed states)158or the quality of their governance.159
Decisions by international organizations (including their tribunals)
which label160(p.109) a particular state aggressive161or impose
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sanctions on another, may contribute to the preservation or
modification of state identity (e.g. as a pariah state).
EU identity and human rights protection:
EU institutions are involved in the formation of European identity162
and they have constructed (occasionally together with the Council of
Europe) various symbols of collective identity.163As discussed above,
symbols and rituals are often part of the development and maintenance
of group identity. Symbols and community rituals often generate or
reinforce a sense of shared belonging.164Thus, for example, in 1983
the EU parliament adopted the European flag (previously adopted by
the Council of Europe);165the EU leaders officially adopted the
European anthem in 1985 (formerly adopted by the Council of
Europe),166and the EU institutions annually celebrate Europe Day (9
May) in which the collective memory of the 1950 Schuman declaration
and the ensuing moral lessons are reinforced.167As noted below, the
EU members also published a formal decision on the European Identity
in 1973.
Norms often constitute a significant element of collective identity and
this is particularly remarkable with regard to constitutive norms that
define group membership.168International human rights norms have a
particular status in that regard and they occasionally play a significant
role in defining the identity of democratic and liberal states.169The EU
bodies have repeatedly stated that human rights protection constitutes
a constitutive norm.170Thus, for example, Article 2 of the Treaty on
European Union (TEU) solemnly states:(p.110)
The Union is founded on the values of respect for human dignity,
freedom, democracy, equality, the rule of law and respect for
human rights, including the rights of persons belonging to
minorities.171
The central role of human rights protection in theEU identity172was
explicitly emphasized by the EUs bodies. Thus, for example,173the EU
Commission states: the European Union has gradually come to define
itself in terms of the promotion of those [human] rights and democratic
freedoms.174And in the Document on The European Identity (1973),
the EU foreign ministers clarified that:
Sharing as they do the same attitudes to life, they are
determined to defend the principles of representative democracy,
of the rule of law, of social justicewhich is the ultimate goal of
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economic progressand ofrespect for human rights. All of these
are fundamental elements of the European Identity.175
The EUs institutions are legally committed to comply with fundamental
human rights176and may suspend certain membership rights of
members which seriously and persistently breach these norms.177As
noted above, identities of international institutions may particularly be
discerned from provisions regarding the admission of new members
which highlight the boundaries between them and other international
groups. Any European country which wishes to become a member of
the EU must satisfy the existing members and the EUs institutions(p.
111) that it respects human rights and is committed to applying
them.178In addition, accession to the European Convention on Human
Rights (ECHR) constitutes a de facto condition for EU membership179
and the EU shall accede to the Convention.180
The EUs human rights policies are particularly pronounced in its
external relations with other international actors. The EU often
presents itself as a human rights promoter in the international
arena.181This external feature of the EUs identity arises, for example,
from Articles 3(5)182and 21(1)183of the TEU,184as well as diverse
public documents of the EU bodies. Thus, for instance,185the EU
Council stated in a strategic document (2012):
The European Union is founded on a shared determination to
promote peace and stability andto build a world founded on
respect for human rights, democracy and the rule of law.These
principles underpin all aspects of the internal and external
policies of the European Union The EU will continue to throw
its full weight behind advocates of liberty, democracy and human
rights the world.The EU will speak out against any attempt to
undermine respect for universality of human rights.186
(p.112)
As noted previously, social identity consists of two core elements of
similarity (mainly on the internal level, among the groups members)
and difference (mainly on the external level, vis-à-vis non-members).
Groups need a certain level of both similarity and differentiation from
others, and social identity derives from the tension between the sense
of belonging and the sense of distinctiveness.187An analysis of the
current EU constitutional framework for human rights protection
reveals rather a clear difference between the importance accorded to
human rights in EU external relations as compared to internal
relations.188The existing constitutional framework (with the exception
of anti-discrimination law) assigns a more circumscribed role to human
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rights within the context of internally focused EU policies, and the
dominant focus is external, empowering, and even obliging the EU to
promote human rights actively in its international policies.189
This EU bifurcated approach may be explained by some sociological
literature which emphasizes the role of highlighting social differences
between the particular social group and other groups in the process of
constructing and maintaining collective identity. Emphasizing
differences vis-à-vis other groups tends to foster internal similarity
among group members.190The EUs emphasis on external human
rights policies underlines its identity as a liberal-democratic group191
towards other international groups.
he EUs social role as human rights promoter and eternal trade
instruments:
Sociological literature underlines the link between social identity and
social role, underscoring that having a particular identity often
pressures individuals and groups to behave according to social
expectations related to their particular role. Where people identify with
a group, they tend to adopt the meaning that accompanies the
particular identity, and act accordingly to represent that meaning.192
The self-representation of the EU as a promoter of human rights
worldwide193has been significantly accepted in the international
community, and has led to the construction of the EUs social role
regarding protecting human rights in the international system.
Recognition of the EUs role is discernible, for instance, from
literature,194(p.113) and the awarding of the Nobel Prize for
contribution to advancement of peace, democracy, and human
rights.195
This social role of the EU in the international community influences the
behaviour of EU institutions and other international actors in this field.
For example, if a certain state commits flagrant and extensive violations
of human rights, expectations are likely to arise that the EU will react
and adopt some measures against that state. Such expectations create
social pressure on the EU and affect its behaviour in the international
system.
The EUs identity as human rights promoter is projected out through a
variety of frameworks,196and this section focuses on trade measures.
The two principal trade instruments in this sphere are conditioned
preferences for developing countries and human rights clauses in trade
agreements with non-members. Trade preferences granted to
developing countries (in addition to those prescribed under the World
Trade Organization (WTO) law) are regulated by the EUs Generalized
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System of Preferences (GSP) legislation, and such preferences are
conditioned by compliance with certain requirements relating to human
rights.197The 2012 GSP Regulation elaborates the conditions that
beneficiary countries must comply with, including the ratification of a
series of international human rights conventions (listed in Annex
VIII);198the absence of unlawful reservations to these conventions;199
and lack of rulings regarding serious failure to effectively implement
any of those conventions (as determined by the relevant conventions
monitoring bodies).200These trade preferences are to be temporarily
withdrawn if the beneficiary country does not fulfil the above
requirements or does not cooperate with the Unions monitoring
procedures (set out in this Regulation).201
Since 1992,202the EUs trade agreements with third parties have
included a human rights clause requiring the parties to respect human
rights and democratic(p.114) principles.203The EU Council adopted
in 1995 a formal policy of including such clauses in all future
cooperation and trade agreements,204and today they are contained in
agreements with more than 120 countries.205The recent human rights
provisions present a similar structure: (i) a basic obligation to comply
with human rights;206(ii) a provision allowing a party to undertake
appropriate measures in case of breach of the above essential
clause;207and (iii) monitoring and implementation provisions.208
Identity motivated compliance and international social labelling:
Sociological deviance literature discusses a variety of societal factors
involved in compliance and breach of norms, including external
motivations (such as social control) and internal motivations (such as
identity).209As noted above, social identity often constitutes an
influential factor that promotes compliance with a groups norms, and
particularly with its constitutive norms.210Since human rights
constitute a constitutive element in the EUs identity as a Westernliberal
community, and EU membership signals acquiring or validating
existing international identity, these factors exert significant influence
on the twenty-eight members of this prestigious group (new and older
ones) to comply with international human rights law.
The EUs legal rules regarding conditioned accession to the EU and
suspension of membership rights reflect and reinforce this important
feature of the EU group membership. The EUs identity, however, does
not ensure that all members will comply with its human rights norms.
Generally, a member whose bond with the group is weak (or socially
alienated from the group) is less likely to be committed to the groups
norms.211From this perspective, if an EU member is significantly(p.
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115) less identified with the group or perceives itself as socially
marginalized in the European Community, it is more likely to breach the
groups norms, including those relating to human rights.
As already noted, certain international institutions possess the capacity
to authoritatively identify people or groups as belonging to a certain
category and thus may stigmatize their incumbents. The suspension of
trade benefits by the EU (e.g., under the GSP programme) carries not
only certain economic consequences, but it also conveys a signal by a
significant human rights actor classifying that particular country as a
serious violator of international human rights norms. This aspect of
international labelling is significant to the targeted states, occasionally
not of lesser importance than the economic consequences of trade
sanctions. Social identity, however, is regularly constructed in a
dialectic process between a particular state and other actors in the
international community, and the latter state is not necessarily a
passive object in this process. Thus, the targeted state may challenge
and try to reject such stigmas relating to breaching human rights.212
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utgroup actors and compliance ith the groups norms:
While a groups constitutive norms are expected to significantly
influence in-group members, they are less likely to have the same
impact on out-group actors. Non-member states which are targeted by
EU trade measures relating to allegations of breach of human rights
often experience a sense of social exclusion and discrimination.213The
suspension of trade benefits by the EU in this context also conveys a
moral judgement, often relating to the legitimacy of the particular
government.214Thus, while the EUs employment of trade measures in
this context may intensify external social pressure on the particular
state, it may also increase a sense of alienation and exclusion within the
particular society, and diminish the prospects of compliance.
The above-noted distinctive out-group/in-group effects on compliance
with international norms suggest that the employment of EU trade
measures in this sphere should be undertaken in an inclusive context
which downplays the social boundaries between the EU and nonmembers.
From this perspective, it is(p.116) desirable that such an
inclusive framework (which includes the link between trade measures
and human rights performance) highlights features shared by both
parties (such as common heritage, ideological ties etc.). A
comprehensive framework that emphasizes common identity, if
meaningful for the particular non-member state, is expected to
decrease the sense of exclusion and enhance the prospects of
compliance with the specific human rights. And if a non-member
breaches human rights in this context, the social identity perspective
does not suggest drastic exclusionary measures (such as expulsion from
the socio-economic group) but rather accompanying trade sanctions
with signals regarding potential partnership in the future.
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Identity-driven measures and considerations of efficiency:
The above EU trade provisions have been implemented in only a small
subset of potential cases (usually in response to coups dtat or
significant deteriorations in a political situation)215and their effect on
compliance with international human rights law is not clear.216These
facts should not lead to the conclusion that the EU is likely to discard
the inclusion of such provisions in its GSP programme and trade
agreements, or not apply such trade measures following a breach of
international human rights. Considerations of efficiency do not
constitute the crucial factor in this sphere. The logic of identity is
different from (and occasionally inconsistent with) the logic of
efficiency. The central motivation leading to the adoption of these legal
provisions and trade measures relates to the self-image of the EU and
its aspiration to project this identity. Considerations of efficiency
apparently affect this EU policy but they do not constitute the
predominant factor in this sphere. The underlying link between the EU
trade-human rights policy and its collective identity indicates that this
policy is relatively durable and not likely to be radically changed within
a short period.
c.Social identity as an interpretative tool
Theoretical tools and empirical evidence drawn from social identity
literature may assist legal decision-makers in interpreting certain
international legal rules. The resort to such complementary
interpretative tools is desirable where legal instruments refer to
entities which significantly involve social groups. This potential
practical value of social identity analysis is illustrated below with
regard to(p.117) interpretation of legal rules relating to state
succession, impartiality of international adjudicators, and some social
groups protected by diverse international instruments.
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(i)Succession of states:
Legal rules regarding state succession are regarded as one of the most
complex spheres in international law;217this difficulty particularly
applies to the questions of whether and to what extent a new state
(successor) remains bound by the treaties of the former sovereign.218
State practice does little to substantiate either of the competing
principles; the continuity of rights and obligations from the old to the
incoming authority and the clean slate theory under which the
incoming sovereign is freed from rights and obligations.219In light of
the ambiguous legal situation, Craven suggests focusing on whether
the state concerned retains its previous personality, and specifically its
identity.220Consequently, it is suggested that [t]he task for the future,
therefore, is to map out some of the characteristics and determinants of
state identity in a way that takes into account not merely the formal
properties of statehood, but also the sense of self, singularity, and
community, that justifies the attachment of international legal
obligations to particular territories and social groups.221This
approach222offers a sound legal policy for guiding legal decisionmakers
in this particularly complex sphere of international law.
Social identities are dynamic and the process of identity construction is
never final.223Similarly, national identities gradually change in
response to various developments, including change in the environment
or the relevant out-group.224Only a radical change in national identity
justifies the discontinuation of treaty rights and obligations. This
approach suggests analysing whether the change in government has
led to such a fundamental change in national identity. Theoretical tools
and empirical evidence drawn from social identity literature may assist
legal decision-makers to examine whether the particular states identity
has changed dramatically.
The examination of certain socio-legal features may indicate whether a
radical identity change has taken place. Dramatic changes in national
identity are often reflected in significant changes in national legislation
(particularly constitutional documents), and are occasionally
accompanied by a change in the name225of(p.118) the state.226
Exceptional changes in national identity are also often reflected in the
states sense of belonging and manifested in accession to new
international groups (e.g., joining significantly different international
institutions). Withdrawal from some international groups (either
institutionalized or not) may also accompany such fundamental changes
in national identity.
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Social identity is not a unilateral process and new identity emerges
within a two-way relationships between self-identity and external
(group) acceptance.227Thus, unilateral statements by the new
government regarding dramatic changes in national identity are
insufficient to support discontinuation of treaty rights and obligations.
The international communitys acceptance of the new identity is
significant for establishing a radically new national identity. Thus, the
responses of other states and/or international (regional or global)
institutions to the particular states new self-representation are
significant for accepting such a contention regarding new national
identity.
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(ii)Impartiality of adjudicators and disqualification criteria:
Social identity influences individuals perceptions and evaluation.228
Attributing personality traits to people belonging to social groups
(stereotyping)229systematically affects how individuals perceive and
process new information, as well as respond to members of social
groups.230Such attribution of personality characteristics is prevalent in
daily life231and frequently useful in everyday social interaction.232The
ascription of such traits to individuals is rooted in the social group and
represents the attitude of the in-group members towards other
groups.233
Empirical studies indicate that we often have distorted perceptions and
evaluations of traits of group members. Two principal mechanisms tend
to reinforce stereotyped traits associated with social groups. The first
mechanism concerns(p.119) thecollection of information, and
empirical studies indicate that people often solicit information which
confirms their hypotheses (rather than pursuing evidence that could
disconfirm their hypotheses).234Stephan and Stephan emphasize that
[i]t is important to note that people are probably unaware that they are
gathering information in a biased manner. Even when people are
offered a reward for gathering unbiased information, they still tend not
to do so.235The second mechanism relates toprocessing information;
empirical studies reveal that expectancy-confirming information is
generally better remembered than expectancy-disconfirming
information.236Even when disconfirming information is being encoded,
people tend to process information in ways that support pre-existing
stereotypes.237
The above mechanisms of collecting and processing information are
occasionally relevant to international adjudication. International
adjudicators are frequently required to process volumes of information,
evaluate the reliability of evidence submitted by the parties, ascertain
trustworthiness of witnesses belonging to different social groups, and
apply vague legal concepts (e.g., good faith238or fair and equitable
treatment).239Adjudicators identification with a social group involved
in or affected by the legal proceedings may lead to arguments
regarding biased adjudicatory process and the impartiality240of
adjudicators.
The link between the mental attitude towards the parties and the legal
concept of impartiality clearly arises from the Supreme Court of
Canadas decision in the Valente case:
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Impartiality refers to a state of mind or attitude of the tribunal in
relation to the issues and the parties in a particular case. The
word impartial, , , connotes absence of bias, actual or
perceived.241
(p.120)
And the Human Rights Committee stated that impartiality (under
article 14(1) of the International Covenant on Civil and Political Rights
(ICCPR))242implies that judges must not harbour preconceptions
about the matter put before them, and that they must not act in ways
that promote the interests of one of the parties.243
Diverse international tribunals have various rules as to the required
qualifications and different criteria regarding disqualification of
adjudicators. The International Court of Justice (ICJ) Statute prohibits
judges from acting in cases where they have previously acted in that
capacity.244Judge Buergenthals proposal to interpret this standard
broadly and adopt a lower threshold of appearance of bias245was not
accepted by the Court.246The International Criminal Tribunal for the
Former Yugoslavia (ICTY) Rules of Procedure focus on whether the
judge has any personal interest or association that might affect her/his
impartiality.247The ICTY examined the question of impartiality from the
perspective of judges in national courts and the Appeals Chamber ruled
in the famous Furundzija case that proof of either actual bias or an
appearance of bias is sufficient to disqualify ICTY judges.248The ECHR
aims to guarantee an independent and impartial tribunal249and the
European Court of Human Rights (ECtHR) has developed a two-prong
test for judicial bias that includes both anobjective test(examining
whether the adjudicator offered guarantees sufficient to exclude any
legitimate doubt in this respect) as well as asubjective test(examining
the personal conviction and behaviour of a particular judge in a given
case).250Similarly, the American Convention on Human Rights aims to
guarantee an(p.121) independent, and impartial tribunal251and the
Inter-American Court stated that impartiality demands that the judge
approaches the facts of the casesubjectively free of all prejudiceand
also offers sufficient objective guarantees to exclude any doubt the
parties or the community might entertain as to his or her lack of
impartiality.252
As to arbitral proceedings between sovereign states and foreign
investors, Article 57 of the Convention on the Settlement of Investment
Disputes between States and Nationals of other States (ICSID
Convention) provides that a proposal to disqualify an arbitrator should
indicate a manifest lack of some qualities,253inter alia, that the
particular adjudicator may not be relied upon to exercise independent
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judgment.254As noted in the Commentary on ICSID Convention [t]he
requirement that the lack of qualities must be manifest imposes a
relatively heavy burden of proof on the party making the proposal.255
This test was reaffirmed by a series of ICSID tribunals256and the test
of appearance of impartiality was rejected in theAmco v Indonesia
tribunal.257
An adequate criterion regarding disqualification of adjudicators aims to
balance between the need to ensure impartial proceedings and the
reality of existing links between adjudicators and other professionals
(e.g. lawyers, counsels, or diplomats).258The above-noted common
tendency to attribute personality traits to members of social groups
suggests that more weight be granted to the first factor in legal
disputes characterized by a higher likelihood for biased perception and
evaluation.(p.122)
Social identity literature indicates that where adjudicators identify with
a social group substantially involved in the dispute (formally or
informally), their perceptions and evaluations of evidence submitted by
the parties are susceptible to bias. It is noteworthy that most people
are not aware of their bias. In light of the higher probability of biased
perceptions and evaluation in such legal disputes, social identity
analysis suggests setting a lower threshold for proving impartiality
under international tribunals procedural rules. Thus, where such
circumstances exist, the heavy burden imposed by ICSID rules and
jurisprudence on a party seeking to disqualify an arbitratorand the
demand to establish facts that make it obvious and highly probable, not
just possible259seem excessively heavy. From this perspective, where
there is reasonable evidence that the adjudicator has identified with
one of the social groups involved, it is desirable to set a less demanding
standard (such as the above-discussed appearance of bias standards
adopted by the ICTY), or to interpret accordingly existing rules by the
ICSID tribunals.260
This proposal requires adjudicators to ascertain whether a particular
judge or arbitrator has identified with a social group substantially
involved in the dispute. To assess this issue, adjudicators may employ
tools and empirical studies regarding the construction of social
identity.261Evidence regarding the above-discussed factors of identity
salience (quantitative and qualitative)262of the specific adjudicator is
particularly relevant to an evaluation of the probability of biased
perception and evaluation. In such cases, it is desirable to assess both
the number of persons to whom the particular adjudicator is connected
through identity links as well as the strength of the identity ties with
the relevant social group. Where this analysis indicates that the
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likelihood of activating a particular identity is significant, the grounds
for setting a lower burden of proof for disqualifying the particular
adjudicator are even more compelling. In such cases, the legal
presumption of impartiality attached to adjudicators263is unwarranted.
(iii)Defining social groups under international instruments:
Certain international legal rules aim to protect various social groups,
such as peoples (under the rules regarding self-determination264and
the First Protocol to the Geneva(p.123) Convention),265minority
groups (under the ICCPR),266indigenous peoples (under the
Convention concerning Indigenous Peoples),267group or
collectivity (under the International Criminal Court (ICC) Statute),268
andsocial groups (under the Refugees Convention).269Various
international treaties grant these groups diverse legal rights and
impose corresponding obligations on other parties. The relevant legal
instruments do not provide a definition of the relevant social group and
generally, there is no consensus on the elements of this concept.270
As discussed above, social identity constitutes a critical link between
the individual and social groups, and a social group cannot exist
without some measure of common identity among the groups
members.271Thus, the employment of theoretical tools and empirical
evidence drawn from social identity literature may(p.124) assist legal
decision-makers in ascertaining the definition of social groups under
the particular international instrument.
A review of international legal literature reveals that it is generally
agreed that the definition of the above social groups includes two
essential elements: (i) common features that are shared by the
members of the group (the objective element);272and (ii) group
consciousness (the subjective element).273An additional, external
component, mentioned in social identity literature (recognition by wider
society),274is included in certain definitions cited in legal literature,275
but does not usually constitute a mandatory requirement according to
that literature.276Social identity literature suggests that the elements
of common traits (boundaries) and group consciousness (selfidentity
) constitute mandatory elements in virtually all cases.277
As discussed in social identity literature, identity emerges and is
maintained within a two-way relationship between self-identification (by
individuals or groups that present their identity) and collective
identification (acceptance or(p.125) dismissal by the wider
society).278From this perspective, unilateral identification by the
relevant social group is not sufficient to lead to the formation of a
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protected social group under international law. As elaborated below,
some external acceptance of the particular group by the international
community is needed for the groups legal protection.
The relative weight assigned to the respective elements of self-identity
and external acceptance should vary according to the aim of the
particular legal regime. Where the specific legal instrument aims at
granting certain benefitsto the members of a group (e.g., rights
concerning ancestral lands),279both elements should be carefully
examined. From this perspective, Article 1(2) of the Convention on
Indigenous Peoples which provides that self-identification is the
fundamental criterion280should not be interpreted as determining
that the internal element is the crucial element in the concept of social
identity. On the other hand, it should be noteworthy that the needed
external recognition does not imply that recognition by the particular
party which is bound to respect the groups rights (and often to assume
the corresponding burden) is a prerequisite for legal recognition of the
social group.281In such cases, recognition by groups of states,
international institutions, or international tribunals may fulfil the
element of external recognition.
Where the specific legal regime isdesigned to protect a groups
membersfrom discrimination or persecution, identification of the
persecuted persons is often undertaken by members of the persecuting
group (even where the persecuted individuals do not identify with the
persecuted group). In such cases, it is suggested that both internal and
external recognition be examined; but the centre of gravity should
certainly be shifted to external identification by the persecuting group.
The absence of self-identification by the persecuted individuals should
not bar their protection under the relevant international instrument.
In addition to the elements of the social group, it is desirable that
legal decision-makers take into account additional elements of social
identity. Since the closely connected concepts of social group and
social identity are elusive, it is neither desirable nor possible to define
them in a precise and rigid fashion. Consequently, it is suggested to
interpret these concepts in a flexible manner. It is desirable that legal
decision-makers who are called upon to apply this concept broaden
their scope of examination and examine evidence regarding additional
factors discussed above, including symbols and rituals, language
(including dialect), and collective narratives. Beside the essential
elements of common objective(p.126) features, self-identification282
and some external recognition, the absence of any of the additional
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elements should not bar recognition of a particular social group under
international law.
Finally, the nature of the above-discussed objective element of social
groups is worth clarifying. The common features that mark the
boundaries of a particular group are widely labelled the objective
element in legal literature, mainly in contrast to the subjective
element of group identity (or group consciousness). From a
sociological perspective, these common features are not necessarily
strictly objective, and often present significant subjective aspects.
Some of the common features, like religious or other beliefs, are not
always objectively discerned by members of other groups. Still, these
features are very real for the members of the particular group. As
Jenkins states: [g]roups may be imagined, but this does not mean that
they are imaginary. They are experientially real in everyday life.283
Consequently, an examination of the objective elements of a social
group may require evidence as to the inter-subjective meanings shared
by the members of the particular groups members.
V.Concluding Remarks
States and other international actors operate in complex identity
networks that often affect their positions and activities in the
international legal system. International legal rules and social identities
interact in various manners, and diverse international identities (e.g.,
local, ethnic, and historical) are occasionally encoded into international
legal rules. Social identity constitutes a conceptual bridge between
individuals and collective groups (like peoples or minority groups) or
between collective groups (such as states or international institutions).
Consequently, the impact of social identities on international law is
particularly noticeable regarding legal rules regulating various links
between individuals and social groups (e.g., affiliation with in a
minority group), ties between states and a variety of international
groups, and links between international groups (e.g., among regional
groups). From this perspective, parallel to the central notion of intergroup
relations in social identity literature, it is possible to explore
numerous international law rules as regulating diverse aspects of
inter-national-group relations.
As discussed above, international institutions often present significant
aspects of identity groups (such as symbols, rituals, and collective
narratives). International organizations rules regarding accession of
new members and suspension of existing ones often reflect the social
boundaries that distinguish between the relevant international identity
group and other international groups. Occasionally the(p.127) basic
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instruments of international institutions expressly aim to construct a
common identity.284
Social identities often affect international law-making. National
identities occasionally influence state decisions to join or withdraw
from international treaties that symbolize certain international
identities. International institutions identity also lead certain
organizations to pre-condition the accession of new members by
ratifying treaties that represent the groups identity; occasionally they
aim to project their identities via trade treaties with non-member
states.285
Social identity literature may not only shed new light on the content
and form of international legal rules; it may also provide a
complementary interpretative tool to clarify the content of legal
provisions in international instruments. The interpretative contribution
of tools and empirical knowledge drawn from social identity studies has
been illustrated here with regard to the concepts of social
groups (which underlies diverse collective groups in the international
system), impartiality of adjudicators, and states succession.286While
such an interpretation is expected to improve the quality of
interpretation of various international legal rules, social identity
analysis does not imply that additional methods of interpretation
(including the conventional tools of legal interpretation) should not be
considered.
This chapter discusses several prominent examples illustrating the
mutual links between social identity and international law. Further
socio-legal studies may explore additional domains of international law
that reflect and affect social identities. Future work may examine
substantive rules regarding the scope of the right to identity of
various groups (such as minority groups under international law287or
national identities under EU law).288Social identity literature may
assist legal decision-makers in interpreting various questions regarding
the link between trade and culture, such as the cultural exception
included in some international trade treaties (like the NAFTA)289or
provisions included in the General Agreement on Tariffs and Trade
(GATT) (such as Article XX(f)).290
Notes:
(1)Kath Woodward,Understanding Identity(Hodder Education 2002)
vii.
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(2)Richard Jenkins,Social Identity(4th edn, Routledge, 2014) 15. On
the various streams in sociological identity theory, seeJan E Stets and
Peter J Burke, A Sociological Approach to Self and Identity in Mark
Leary and June Tangney (eds),Handbook of Self and Identity(Guilford
Press, 2002) 910.
(3)Anthony Giddens and Philip Sutton,Sociology(7th edn, Polity, 2013)
307.
(4) Jenkins (n2) 27.
(5) I am deeply indebted to Orit Gazit of the Hebrew University
Department of Sociology for helpful comments on an earlier draft of
this section.
(6) The common term employed in sociological literature is identity
theory and the common term used in social psychological literature is
social identity theory.Jan E Stets and Peter J Burke, Identity, Theory
and Social Identity Theory (2000) 63Social Psychology Quarterly224.
(7) Sociological literature on identity emphasizes social roles, selfmeaning
and shared meanings, interactions, and identity salience.
Social psychological literature on identity emphasizes inter-group
relations and group behaviour (and is often labelled as group-based
identity), cognitive processes, evaluative consequences, conformist
behaviour, and certain personal motivational underpinning
identification. On the common and different aspects of these two
approaches to social identity, seeStets and Burke, Identity, Theory and
Social Identity Theory(n6) 22433;Michael A Hogg, Deborah J Terry,
and Katherine M White, A Tale of Two Theories: A Critical Comparison
of Identity Theory with Social Identity Theory (1995) 58Social
Psychology Quarterly255, 2625.
(8)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
2234. See alsoibid., 255.
(9)Stets and Burke Identity, Theory and Social Identity Theory(n6)
228.
(10) Hogg, Terry, and White (n7) 255. On streams of identity
approaches in the symbolic interactionist doctrine, seeStets and Burke
Identity, Theory and Social Identity Theory(n6) 1011.
(11) See Chapter 2, SectionIV(c). On the link between social identity
and the symbolic-interactionist approach, see, e.g., Hogg, Terry, and
White (n7) 256.
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(12) Hogg, Terry, and White (n7) 255, 257;Marilynn B Brewer, The
Many Faces of Social Identity: Implications for Political
Psychology (2001) 22Political Psychology155.
(13) Hogg, Terry, and White (n7) 259;Sheldon Stryker and Peter J
Burke, The Past, Present, and Future of an Identity Theory (2000) 63
Social Psychology Quarterly284, 286;Walter G Stephan and Cookie
White Stephan,Intergroup Relations(Westview Press, 1996) 90.
Richard J Crisp, Prejudice and Perceiving Multiple Identities in John F
Dovidio and others (eds),Prejudice, Stereotyping And Discrimination
(Sage, 2010) 508.
(14) Jenkins (n2) [emphasis added] 6. From a social psychological
perspective, Tajfel defines social identity as that part of the individuals
self concept which derives from his knowledge of his membership of a
asocial group (or groups) together with the values and emotional
significance attached to that membership,Henri Tajfel,Human Groups
and Social Categories: Studies in Social Psychology(CUP, 1981) 2545.
(15) Giddens and Sutton (n3) 309;John C Turner and Rina S Onorato,
Social Identity, Personality, and the Self-Concept: A Self-Categorization
Perspective in Tom R Tyler, Roderick M Kramer, and Oliver P John
(eds),The Psychology of the Social Self(Erlbaum Publishers, 1990) 38;
see also Jenkins (n2) 3941.
(16)Stephen Worchel, A Developmental View of the Search for Group
Identity in Stephen Worchel and others (eds)Social Identity:
International Perspectives(Sage, 1998) 53, 55; Turner and Onorato (n
15) 13; Jenkins (n2) 11213;Marilynn B Brewer, The Social Self: On
Being the Same and Different at the Same Time (1991) 17Personality
and Social Psychology Bulletin475, 4756.
(17) Jenkins (n2) 104.
(18)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
228. On the relationships between personal and collective identity, see
John C Turner and others, Self and Collective: Cognition and Social
Context (1994) 20Personality and Social Psychology Bulletin454.
(19)Brewer, The Social Self(n16) 4757.
(20) The term role refers in sociological literature to socially defined
expectations that a person in a given social position follows. On the
concept of role in sociology, see Chapter 1, SectionII.
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(21) On the importance of role in sociological identity theory, see also
Hogg, Terry, and White (n7) 264. See also Giddens and Sutton (n3)
3078.
(22)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
227; see also Hogg, Terry, and White (n7) 256;Stets and Burke, A
Sociological Approach to Self and Identity(n2) 11 et seq.
(23)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
229.
(24) Worchel (n16) 65.
(25)Ibid., 65, 723. See alsoAlberto Melucci, The Process of Collective
Identity in Hank Johnston and Bert Klandermans (eds),Social
Movements and Culture(University of Minnesota Press 1995) vol 4, 41,
478.
(26) Worchel (n16) 66; Melucci (n25) 47.
(27) Worchel (n16) 65. On the various stages in the development of
group identity, see Worchel 5662.
(28) See, e.g. Tajfel (n14) 2559;Phyllis Anastasio, Betty Bachman,
Samuel Gaertner, and John Dovidio, Categorization, Recategorization
and Common Ingroup Identity in Russell Spears and others (eds),The
Social Psychology of Stereotyping and Group Life(Blackwell, 1997).
(29)Henri Tajfel and John C Turner, The Social Identity of Intergroup
Behaviour in Stephen Worchel and William G Austin (eds),Psychology
of Intergroup relations(2nd edn, Nelson Hall, 1986) 7.
(30)Ibid., 12. See alsoStets and Burke, Identity, Theory and Social
Identity Theory(n6) 225; Jenkins (n2) 11415.
(31)Stets and Burke, A Sociological Approach to Self and Identity(n2).
(32) Jenkins (n2) 13, 111.
(33) Jenkins (n2) 46, 73, 95.
(34) See, e.g.,Stets and Burke, Identity, Theory and Social Identity
Theory(n6) 227.
(35) Jenkins (n2) 73, 80, 83, 86, 113. See alsoStets and Burke, A
Sociological Approach to Self and Identity(n2) 225; Hogg, Terry, and
White (n7) 257.
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(36)Fredrick Barth, Introduction in Frederick Barth (ed),Ethnic
Groups and Boundaries: The Social Organization of Culture Difference
(Little Brown Company, 1969) 9, 1012; Jenkins (n2) 123, 46.
(37) Barth (n36) 1516.
(38) Jenkins (n2) 46. As Barth explains, even where persons of different
identity groups interact with each other, the persistence of ethnic
groups implies not only criteria and signals of identification, but also a
structuring of interaction which allows the persistence of cultural
differences. Barth (n36) 16.
(39) Jenkins (n2) 13.
(40)Morita Hodaka and Servátka Maro,Symbols, Group Identity and
the Hold-Up Problem(30 November 2011) 1. <http://ssrn.com/
abstract=1966354> accessed 20 March 2015; Jenkins (n2) 1467.
(41) Morita and Servátka (n40) 1;Randall Collins,Interaction Ritual
Chains(Princeton University Press, 2004) 95, 98; Jenkins (n2) 1379.
(42) Jenkins (n2) 13940, 145; Collins (n41) 813.
(43)Bonny Norton, Language, Identity, and the Ownership of
English (1997) 31TESOL Quarterly419.
(44)John Scott and Gordon Marshall, Language,Oxford Dictionary of
Sociology(3rd edn, OUP, 2009) 406.
(45)David Crystal,How Language Works(Penguin Books, 2006) 303.
(46) Scott and Marshall (n44) 4067; Crystal (n45) 303. See also
Woodward (n1) 79;Rawi Abdelal, Yoshiko M Herrera, and Alastair Iain
Johnston, Identity as a Variable (2006) 4Perspectives on Politics699;
Jenkins (n2) 145.
(47) See, e.g.,Francesca Polletta, It Was like a Fever Narrative
and Identity in Social Protest (1998) 45Social Problems137;Klaus
Eder, A Theory of Collective Identity (2009) 12European Journal of
Social Theory427; Woodward (n1) 28.
(48) Woodward (n1) 28.
(49) On the particular influence of ontological narratives and identity,
seeMargaret R Somers, Narrative, Narrative Identity, and Social
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Action: Rethinking English Working-Class Formation (1992) 16Social
Science History591. See also Woodward (n1) 29.
(50) Eder (n47) 42831.
(51) On the concept of collective memory in sociological literature and
its interaction with identity as well as international law, see Chapter 3,
SectionsII(on collective memory and its interaction with social
identity) andIII(on interactions between collective memories and
international law).
(52)Yael Zerubavel,Recovered Roots(University of Chicago Press,
1995) 6.
(53)Ross Poole, Memory, History and the Claims of the Past (2008) 1
Memory Studies149, 162.
(54)Jan Assmann, Collective Memory and Cultural Identity (1995) 65
New German Critique125, 130, see also 137.
(55) Jenkins (n2) 47, 166.
(56) On the institutionalization of ethnic identities in Africa during the
colonization period, seeMahmood Mamdani, Race and Ethnicity as
Political Identities in the African Context in Mahmood Mamdani and
others (eds),Keywords: Identity(Other Press, 2004) 48.
(57) Jenkins (n2) 166.
(58) For a sociological definition of organizations, see, e.g., Jenkins (n
2) 147, 170.
(59) On the role of states in shaping identity, seeKwame Anthony
Appiah, The State and the Shaping of Identity (Tanner Lectures on
Human Values, Cambridge, 30 April 2001), <http://
tannerlectures.utah.edu/_documents/a-to-z/a/Appiah_02.pdf> accessed
20 March 2015.
(60)Michael A Hogg and Deborah J Terry, Social Identity Theory and
Organizational Process in Michael A Hogg and Deborah J Terry (eds),
Social Identity Process in Organizational Context(Psychology Press,
2001) 1. See alsoMichael G Pratt, Social Identity Dynamics in Modern
Organizations in Michael A Hogg and Deborah J Terry (eds)Social
Identity Process in Organizational Context(Psychology Press, 2001) 13.
(61) Jenkins (n2) 183.
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(62)Ibid., 187.
(63)Ibid., 1778.
(64)Ibid., 188, 201, 47. On international labelling agencies, see Chapter
6, SectionIV(a).
(65) Giddens and Sutton (n3) 307; Hogg, Terry, and White (n7) 255;
Jenkins (n2) 10, 18;Stets and Burke Identity, Theory and Social
Identity Theory(n6) 233.
(66) Jenkins (n2) 90.
(67) Hogg, Terry, and White (n7) 261, 265.
(68) Jenkins (n2) 189.
(69)Ibid., 68, 10.
(70) Hogg, Terry, and White (n7) 257;Stets and Burke, Identity, Theory
and Social Identity Theory(n6) 229.
(71)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
230; Hogg, Terry, and White (n7) 258. On additional factors affecting
identity salience (relating to the immediate social context and the
individuals own interpretation of the context), seeStets and Burke,
Identity, Theory and Social Identity Theory(n6) 2301; Worchel (n16)
55. For a more nuanced explanation of the influence of identity on
behaviour (particularly its role infacilitatingaction), seeAnn Swidler,
Talk of Love: How Culture Matters(University of Chicago Press, 2001)
87.
(72) On the interpersonalintergroup continuum, see Tajfel and Turner
(n29) 810. See also Hogg, Terry, and White (n7) 261;Stets and Burke,
Identity, Theory and Social Identity Theory(n6) 2312; Turner and
others (n18) 455.
(73) The sociological approach to identity emphasizes that the
transformation to group member is undertaken when one incorporates
group membership (including the meaning and expectations associated
with that role) into the self;Stets and Burke, Identity, Theory and
Social Identity Theory(n6) 225.
(74)Dominic Abrams and Michael A Hogg, Social Identity and Self-
Categorization in John F Dovidio and others (eds),Prejudice,
Social Identity, International Groups, and International Law
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Stereotyping And Discrimination(Sage, 2010) 177, 187; Hogg, Terry,
and White (n7) 261.
(75) On the impact of identity on emotions, seeStets and Burke, A
Sociological Approach to Self and Identity(n2) 213; Jenkins (n2) 67.
(76)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
225, 233; Hogg, Terry, and White (n7) 260.
(77) Jenkins (n2) 11415; Hogg, Terry, and White (n7) 260.
(78)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
226; Hogg, Terry, and White (n7) 260; Stephan and Stephan explain
that one way of increasing self-esteem is to exaggerate between-group
differences and minimize within-group differences on positively
evaluated dimensions. Stephan and Stephan (n13) 100.
(79) Jenkins (n2) 154; Hogg, Terry, and White (n7) 260. See alsoStets
and Burke, Identity, Theory and Social Identity Theory(n6) 225.
(80) Stephan and Stephan (n13) 94.
(81)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
225, 232; Hogg, Terry, and White (n7) 260;Barbara-Ann Mullin and
Michael A Hogg, Motivations for Group Membership: The Role of
Subjective Importance and Uncertainty Reduction (1999) 21Basic and
Applied Social Psychology91, 912;Henri Tajfel,Human Groups and
Social categories: Studies in Social Psychology(CUP, 1981) 254.
(82)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
233.
(83)Ibid., 226; Tajfel and Turner (n29) 13.
(84)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
232. On self-esteem and identity, see alsoStets and Burke, A
Sociological Approach to Self and Identity(n2) 67.
(85) Abrams and Hogg (n74) 182. The general tendency of in-group
members to favour members of their own group over other groups has
some exceptions (prominently regarding groups that are low in status,
power and prestige).Charles Stangor and John T Jost, Commentary:
Individual, Group and System Levels of Analysis and their Relevance to
Stereotyping and Intergroup Relations in Russell Spears and others
(eds),Social Psychology of Stereotyping and Group Life(Blackwell,
1997) 346.
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(86)Stephen Worchel and Hank Rothgerber, Changing the Stereotype
of the Stereotype in Russell Spears and others (eds),The Social
Psychology of Stereotyping and Group Life(Blackwell, 1997) 72, 748.
See also SectionIV(c)(ii)below.
(87) See, e.g., Jenkins (n2) 1578, 152.
(88)Stets and Burke, Identity, Theory and Social Identity Theory(n6)
227.
(89) Giddens and Sutton (n3) 3078;Stets and Burke, Identity, Theory
and Social Identity Theory(n6) 227.
(90) Hogg, Terry, and White (n7) 2578.
(91) Hogg, Terry, and White (n7) 260;Stets and Burke, Identity, Theory
and Social Identity Theory(n6) 232; Jenkins (n2) 8; Stephan and
Stephan (n13) 923. On certain factors that increase and decrease the
likelihood of inter-group discrimination, seeRichard Y Bourhis, John C
Turner, and Andr Gagnon, Interdependence, Social Identity and
Discrimination in Russell Spears and others (eds),The Social
Psychology of Stereotyping and Group Life(Blackwell, 1997) 273, 276.
(92) Tajfel and Turner (n29) 13.
(93) Tajfel and Turner (n29) 14; Stephan and Stephan (n13) 923.
(94) Tajfel and Turner (n29) 19;Stets and Burke, Identity, Theory and
Social Identity Theory(n6) 232; Hogg, Terry, and White (n7) 260. On
additional group motivations for stereotyping, prejudice and
discrimination, see Stangor and Jost (n85) 33852. On additional
motives directing inter-group behaviour, see Stephan and Stephan (n
13) 101.
(95)Jolanda Jetten and others, Rebels with a Cause: Group
Identification as a Response to Perceived Discrimination from the
Mainstream (2001) 27Personality and Social Psychology Bulletin1204.
(96) Additional factors affecting inter-group discrimination include the
degree to which individuals identified with the group, the salience of
the relevant categorization, the degree to which the groups are
comparable, the in-group relative status and the perceived status
differences between the groups. Bourhis, Turner and Gagnon (n91)
273, 276.
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(97) Hogg, Terry, and White note that these beliefs are not necessarily
accurate reflections of reality because they can be, and often are,
ideological constructs. Hogg, Terry, and White (n7) 260. On the
interactions between social identity and collective action, see also
Abrams and Hogg (n74) 179, 187.
(98) On the social constructivist approach in international relations
literature, see Chapter 1, SectionIV.
(99) On the links between the constructivist approach and sociology
(and particularly the symbolic-interactionist approach) see, e.g.,
Alexander Wendt, Collective Identity Formation and the International
State (1994) 88American Political Science Review385, 386, 394. See
alsoJutta Brunnee and Stephen J Toope, International Law and
Constructivism: Elements of an International Law Theory of
International Law (2000) 20Columbia Journal of Transnational Law27.
(100)Wendt, Collective Identity Formation(n99) 386;Peter J
Katzenstein, Introduction: Alternative Perspectives on National
Security in Peter J Katzenstein (ed),The Culture of National Security:
Norms and Identity in World Politics(Columbia University Press, 1996)
1, 22;Bahar Rumelili, Constructing Identity and Relating to Difference:
Understanding the EUs (2004) 30Review of International Studies27,
301;Robert Jackson and Georg Sørensen,Introduction to International
Relations: Theories and Approaches(4th edn, OUP, 2010) 164, 172.
(101)Ibid., 162, 166.
(102) See, e.g.,ibid., 165.
(103) See, e.g.,Wendt, Collective Identity Formation(n99) 385;James
D Fearon, What is Identity (As We Now Use the Word) (1999) 3
<http://web.stanford.edu/group/fearon-research/cgi-bin/wordpress/wpcontent/
uploads/2013/10/What-is-Identity-as-we-now-use-theword-.
pdf> accessed 21 March 2015;Thomas Risse,A Community of
Europeans? Transnational Identities and Public Spheres(Cornell
University Press, 2010) 20.
(104)Ted Hopf, The Promise of Constructivism in International
Relations Theory (1998) 23International Security171, 174.
(105) See, e.g.,Wendt, Collective Identity Formation(n99) 386, 394;
Jackson and Sørensen (n100) 163; Hopf (n104) 175; Rumelili (n100)
301.
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(106)Wendt, Collective Identity Formation(n99) 387;Peter J
Katzenstein, Ronald L Lepperson, and Alexander Wendt, Norms,
Identity, and Culture in National Security in Peter J Katzenstein (ed),
The Culture of National Security: Norms and Identities in World Politics
(Columbia University Press, 1996) 11, 356. On variations in the
constructivist literature regarding emphasis on domestic or
international factors see, e.g., Jackson and Sørensen (n100) 1702 and
the references therein;Emanuel Adler, Cognitive Evolution: A Dynamic
Approach for the Study of International Relations and their Progress in
Emanuel Adler and Beverly Crawford (eds),Progress in Postwar
International Relations(Columbia University Press, 1991) 43, 257;John
Ruggie,Constructing the World Polity(Routledge, 1998) 1114;Richard
Steinberg and Jonathan Zasloff, Power and International Law (2006)
100AJIL64, 825.
(107) Wendt defines corporate identity as the intrinsic, self-organizing
qualities that constitute actor individuality. For organizations, it means
their constituent individuals, physical resources, and the shared beliefs
and institutions in virtue of which individuals function as a we.Wendt,
Collective Identity Formation(n99) 386.
(108) See, e.g.,Wendt, Collective Identity Formation(n99) 386; Fearon
(n103) 33.
(109)Wendt, Collective Identity Formation(n99) 390.
(110)Alexander Wendt, Anarchy is What States Make of It (1992) 46
International Organization391, 398.
(111) Brunne and Toope (n99) 4;Christian Reus-Smit,The Moral
Purpose of the State(Princeton University Press, 1999) 29;Ian Hurd,
Constructivism in Christian Reus-Smit (ed),The Oxford Handbook of
International Relations(OUP, 2008) 298, 303.
(112) Hopf (n104) 176.
(113)Wendt, Collective Identity Formation(n99) 386, 390; Hopf (n
104) 176.
(114)Wendt, Collective Identity Formation(n99) 386.
(115) Lepperson, Wendt, and Katzenstein (n106) 52.
(116)Wendt, Collective Identity Formation(n99) at 387. See also
Martha Finnemore, Constructing Norms of Humanitarian Intervention
in Peter J. Katzenstein (ed),The Culture of National Security: Norms
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and Identity in World Politics(Columbia University Press 1996) 153,
159, 169, 184.
(117) Lepperson, Wendt, and Katzenstein (n106) 54. See also Jackson
and Sørensen (n100) 169;Audie Klotz,Norms in International
Relations: The Struggle Against Apartheid(Cornell University Press,
1995) 56, 16871;Audie Klotz, Norms Reconstituting Interests: Global
Racial Equality and U.S. Sanctions Against South Africa (1995) 49
International Organization451, 4612, 472.
(118) Abdelal, Herrera, and Johnston (n46) 6978. For Reus-Smit, state
societies have been based on fundamental moral purposes derived from
their identity. Reus-Smit (n111) 156.
(119) Hopf (n104) 1745.
(120) See, e.g.,Andrea Oelsner, The Institutional Identity of Regional
Organizations, or Mercosurs Identity Crisis (2013) 57International
Studies Quarterly115.
(121) On the EUs identity, see SectionIV(b)below.
(122) See, e.g.,John J Kirton,G20 Governance for a Globalized World
(Ashgate, 2013) 34.
(123) On the leadership identities of the USA and the EU in the climate
change negotiations (and their impact on the negotiation process), see
Jutta Brunne, Europe, The United States, and the Global Climate
Regime: All Together Now (2008) 24(1)Journal of Land Use and
Environmental Law1, 2830. See alsoDaniela Sicurelli,The European
Unions Africa Policies(Ashgate, 2010) 135. On the identities of the EU
and the USA after the Cold War, seeSonia Lucarellia, Values, Identity
and Ideational Shocks in the Transatlantic Rift (2006) 9Journal of
International Relations and Development304.
(124) See SectionIV(b)below.
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(125) Thus, e.g., regarding the UN electoral (regional) groups, certain
non-Western European countries like Greece, Australia, New Zealand,
Canada, and Israel are members of theWestern European and Others
Group. On the UN regional groups and the element of identification
with a group of states, see,Sam Daws, The Origins and Development of
UN Electoral Groups in Ramesh Thakur (ed),What is Equitable
Geographic Representation in the 21st Century?(United Nations
University, 1999) 11, 15. On the factor of image in New Zealands policy
regarding UN groups, see Daws, at 16. On the historic evolution of the
Western European and Others group and its links with European
identity, seeNorbert Gotz, Western Europeans and Others: the making
of Europe at the United Nations (2008) 33Alternatives: Global, Local,
Political366, 3723.
(126) See, e.g., Kirton (n122) 34.
(127) See SectionIV(b)below.
(128)Richard Price and Nina Tannenwald, Norms and Deterrence: The
Nuclear and Chemical Weapons Taboos in Peter Katzenstein (ed),The
Culture of National Security: Norms and Identity in World Politics
(Columbia University Press, 1996) 114, 1301.
(129) Italy contended that the Ethiopians have repeatedly shown she
[sic!] is not worthy of the rank of a civilized nation; Price and
Tannenwald (n128) 132. In a letter to the League of Nations, Italy
accused Ethiopian forces of violating several articles of the 1925
Geneva Protocol and savage aggression.Lina Grip and John Hart, The
Use of Chemical Weapons in the 193536 Italo-Ethiopian War (October
2009) SIPRI Arms Control and Non-proliferation Programme 6 <http://
www.sipri.org/research/disarmament/chemical/publications/
ethiopiapaper> accessed 21 March 2015. See alsoRichard M Price,The
Chemical Weapons Taboo(Cornell University Press, 1997) 108.
(130) In 1998, the Iraqi foreign minister defended the use of chemical
weapon and argued: There are different views on this matter from
different angles. You are living on a civilized continent. Price and
Tannenwald (n128) 132.
(131) Ibid., 131.
(132)Scott D Sagan, Why Do States Build Nuclear Weapons Three
Models in Search of a Bomb (1996) 21International Security54, 545.
On these factors, see alsoMike M Mochizuki, Japan Tests the Nuclear
Taboo (2007) 14Non-proliferation Review306.
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(133) On the importance of national identity and prestige for developing
nuclear weapons, see alsoBarry ONeill, Nuclear Weapons and
National Prestige (February 2006) Cowles Foundation Discussion
Paper No. 1560 <http://ssrn.com/abstract=887333> accessed 21
March 2015.
(134) Sagan (n132) 73.
(135) For additional examples, see ONeill (n133) 4. On the link
between nuclear policy and national identity, see alsoMaria Rost
Rublee,Non-Proliferation Norms: Why States Choose Nuclear
Restraint?(University of Georgia Press, 2009) 1315.
(136) With regard to Pakistan, seeFeroz Hassan Khan,Eating Grass:
The Making of the Pakistani Bomb(Stanford University Press, 2012) 9
11. See also 7.
(137) On the link between the development of nuclear weapons by
France during the 1950s and national identity, see, e.g.,Jacques EC
Hymans,The Psychology of Nuclear Proliferation: Identity, Emotions,
and Foreign Policy(CUP, 2006) 85. See alsoGabrielle Hecht,The
Radiance of France: Nuclear Power and National Identity After World
War II(MIT Press, 2009) 28, 56, 89.
(138) Sagan (n132) 7980.
(139) Mochizuki (n132) 3067. See alsoSatake Tomohiko, Japans
Nuclear Policy: Between Non-Nuclear Identity and US Extended
Deterrence (May 2009) Austral Policy Forum, 34 <http://nautilus.org/
wp-content/uploads/2009/12/Tomohiko-PDF.pdf> accessed 21 March
2015.
(140) See, e.g., the website of the Organization of American States,
Who We are, <http://www.oas.org/en/about/who_we_are.asp>
accessed 21 March 2015.
(141)Said Mahmoudi, Organization of the Islamic Conference, in R
Wolfrum (ed),Max Planck Encyclopedia of Public International Law
(OUP, 2009) <http://opil.ouplaw.com/home/EPIL> accessed 30 May
2015.
(142) On the Commonwealth of Nations and its links to the British
Empire, seeLaurie Fransman, Commonwealth Subjects and Nationality
Rules, in R Wolfrum (ed), Max Planck Encyclopedia of Public
International Law (OUP, 2009) <http://opil.ouplaw.com/home/EPIL>.
Social Identity, International Groups, and International Law
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(143) On the collective identity and the ideology of NATO, see, e.g.,
Christopher Hemmer and Peter J Katzenstein, Why is There No NATO
in Asia? Collective Identity, Regionalism, and the Origins of
Multilateralism (2002) 56International Organization575, 5878.
(144) On the stages of development of international organizations
identity in light of developmental psychological literature, seeSungjoon
Cho, An International Organizations Identity Crisis (2014) 34
Northwestern Journal of International Law and Business359, 37383.
(145) See, e.g., Mahmoudi (n141) para 5.
(146) The Council of Europe quotes Juncker in its official website: the
Council of Europe and the European Union were products of the same
idea, the same spirit and the same ambition. They mobilised the energy
and commitment of the same founding fathers of Europe.The Council
of Europes Relations with the European Union<http://www.coe.int/t/
der/eu_EN.asp> accessed 21 March 2015.
(147) See, e.g., on the Pan American Day and the Organization of
American States, Columbus Memorial Library, Pan-American Day April
14<http://www.oas.org/columbus/PanAmericanDay.asp> accessed 21
March 2015. On the ASEAN Day, see Charter of the Association of
Southeast Nations (adopted 20 November 2007, entered into force 15
December 2008) 2624 UNTS 223 (ASEAN Charter) Art 39.
(148) On the EUs narratives of projection (and specifically regarding
the WTO), see the insightful essay byKalypos Nicolaidis and Robert
Howse, This is my EUtopia : Narrative as Power (2002) 40Journal
of Common Market Studies767. See also, Organization of American
States Our History <http://www.oas.org/en/about/our_history.asp>
accessed 21 March 2015.
(149) Mahmoudi notes that the Charter of the 1972 Charter of the
Organization of the Islamic Conference was inspired by the Charter of
the Arab League and the Charter of the Organization of African Union.
See, e.g., Mahmoudi (n141) para 5.
(150) See, e.g., Art 3 of the Statute of the Council of Europe (signed 5
May 1949, entered into force 3 August 1949) 87 UNTS 103 Art 3. On
the EUs admission requirements regarding human rights protection,
see SectionIV(b)below.
(151) See, e.g., the 1992 OAS Protocol of Washington (which amended
the OAS Charter by adding a new Art 9) stipulating the suspension of
any member whose democratically elected government has been
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overthrown by force. On this amendment and the practice of OAS in
that regard, seeKonstantinos D Magliveras,Exclusion from
Participation in International Organisations(Kluwer, 1999) 165, 1714.
(152) On international organizations common political identity and
possible expulsion, seeHenry G Schermers and Niels M Blokker,
International Institutional Law(5th edn, Martinus Nijhoff Publishers,
2011) 113.
(153) Art 35 of the Charter of the Association of Southeast Asian Nations
(ASEAN) provides as follow: ASEAN Identity: ASEAN shall promote its
common ASEAN identity and a sense of belonging among its peoples in
order to achieve its shared destiny, goals and values. See also ASEAN
Charter (n147) Art 1(14). See alsoMichael E Jones, Forging an ASEAN
Identity: The Challenge to Construct a Shared Destiny (2004) 26
Contemporary Southeast Asia140. See also on the Organization of the
Islamic Conference, Mahmoudi (n141) para 5.
(154) Third recital to the Preamble of the South American Union of
Nations Constitutive Treaty (signed 23 May 2008, entered into force 11
March 2011) 2742 UNTS, at the Preamble <http://treaties.un.org/doc/
Publication/UNTS/No%20Volume/48456/Part/
I-48456-08000002802d4c72.pdf> accessed 22 March 2015.
(155) See, e.g., regarding South Korean membership in the OECD,Dong
Chon Suh, Trade and Financial Liberalization in South Asia in Daljit
Singh and Reza Y Siregar (eds),ASEAN and Korea(Institute for
Southeast Asian Studies, Singapore 1997) 19, 68. See regarding
Slovenias membership <http://www.svrez.gov.si/en/areas_of_work/
slovenia_member_of_the_oecd/
organisation_for_economic_co_operation_and_development_oecd/>
accessed 22 March 2015. And see regarding Israels membership,
Israel to join prestigious OECD economic clubFrance 2
International News(27 May 2010) <http://www.france24.com/en/
20100527-israel-join-prestigious-oecd-economic- club-netanyahusarkozy-
paris/> accessed 22 March 2015.
(156) On the OECD as the rich man club, see, e.g., Thalif Deen, Chile
to Join the Rich Mans ClubInter Press Service(21 December 2009)
<http://ipsnews.net/news.asp?idnews=49777> accessed 22 March
2015; 50 Years of the OECD: An Exclusive Club with Global Goals
Deutsche Welle(30 September 2011) <http://www.dw-world.de/dw/
article/0,,15099080,00.html> accessed 22 March 2015.
Social Identity, International Groups, and International Law
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(157) See UN-OHRLLS, The Criteria for Identification and Graduation
of the LDCs <http://www.un.org/special-rep/ohrlls/ldc/
ldc%20criteria.htm> accessed 22 March 2015.
(158) On the classification of states accordance to their level of
economic development, see, e.g., the Human Development Index (HDI)
developed by the UN Development Programme (UNDP) <http://
hdr.undp.org/en/statistics/> accessed 24 March 2015; The World Bank,
Country and Lending Groups <http://data.worldbank.org/about/
country-classifications> accessed 24 March 2015.
(159) SeeWorld Bank,Worldwide Governance Indicators(WGI) <http://
info.worldbank.org/governance/wgi/index.asp> accessed 24 March
2015;Daniel Kaufmann, Aart Kraay and Massimo Mastruzzi, The
Worldwide Governance Indicators: Methodology and Analytical
Issues (2010) Policy Research Working Paper 5430, 4 <http://
elibrary.worldbank.org/doi/pdf/10.1596/1813-9450-5430> accessed 24
March 2015.
(160) On international labelling and international institutions, see also
Chapter 6, SectionIV(a).
(161) See the UN Charter Art 39.
(162) For a survey of political science literature on European identity
and the European Union, seeErik Jones, Identity and Solidarity in Erik
Jones, Anand Menon, and Stephen Weatherill (eds),The Oxford
Handbook of the European Union(OUP, 2012) 690. See alsoJeffrey
Checkel and Peter Katzenstein,European Identity(CUP, 2009) 1.
(163) On the impacts of symbols on European identity, seeMichael
Bruter, Winning Hearts and Minds for Europe: The Impact of News and
Symbols on Civic and Cultural European Identity (2003) 36
Comparative Political Studies1148, 11657.
(164) See SectionIIabove.
(165) European Union,The European Flag, <http://europa.eu/about-eu/
basic-information/symbols/flag/index_en.htm> accessed 24 March
2015.
(166) European Union,The European Anthem, <http://europa.eu/abouteu/
basic-information/ symbols/anthem/index_en.htm> accessed 24
March 2015.
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(167) European Union,Europe DayEU Open Doors, <http://europa.eu/
about-eu/basic- information/symbols/europe-day/
index_en.htm#why_europe_day> accessed 24 March 2015; European
Union,The Schuman Declaration May 10, <http://europa.eu/
about-eu/basic- information/symbols/europe-day/schuman-declaration/>
accessed 24 March 2015. On the commemorative rituals that have
developed since 1957 to mark the anniversaries of signing of the Rome
Treaty, seeHannes Hansen-Magnusson and Jenny Wustenberg, Forging
European Memory: The Treaties of Rome as a Common Tradition in the
Making? (European Union Studies Association Conference, Boston, 35
March 2011).
(168) On the role of constituent norms in the formation of international
identity, see SectionIIIabove.
(169) See, e.g.,Thomas Risse and Kathryn Sikkink, The Socialization of
International Human Rights Norms into Domestic Practices:
Introduction in Thomas Risse, Stephen C Ropp, and Kathryn Sikkink
(eds),The Power of Human Rights(CUP, 1999) 1, 12.
(170) On human rights as core values of the EU, see alsoEuropean
Union,The EU and Human Rights, <http://eeas.europa.eu/
human_rights/index_en.htm> accessed 24 March 2015.
(171) The Consolidated Versions of the Treaty on European Union and
the Treaty on the Functioning of the European Union [2010] OJ C 83/1
(hereinafter European Union Treaty). And the Preamble to the Charter
of Fundamental Rights of the European Union underlines that: The
peoples of Europe, are resolved to share a peaceful future based on
common values. Conscious of its spiritual and moral heritage, the Union
is founded on the indivisible, universal values of human dignity,
freedom, equality and solidarity; it is based on the principles of
democracy and the rule of law. Charter of Fundamental Rights of the
European Union [2010] OJ C 83/2.
(172) On the central role of human rights in the EUs identity, see also
Marise Cremona, Values in the EU Foreign Policy in Malcolm Evans
and Panos Koutrakos (eds),Beyond the Established Legal Orders: Policy
Interconnections between the EU and the Rest of the World(Hart,
2011) 307. See alsoIan Manners, The Constitutive Nature of Values,
Images, and Principles in the European Union in Sonia Lucarelli and
Ian Manners (eds),Values and Principles in European Union Foreign
Policy(Routledge, 2006) 19, 314, 3841.
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(173) See also,Commission, The European Union and the External
Dimension of Human Rights Policy: From Rome to Maastricht and
Beyond (Communication) COM (1995) 567 final, 5.
(174)Ibid., para. 12. See alsoMarise Cremona, Values in the EU
Constitution: the External Dimension, Centre on Democracy,
Development, and the Rule of Law (November 2004) 26 Stanford
Institute for International Studies 2.
(175) Declaration on The European Identity published by the Nine
Foreign Ministers on 14 December 1973, Copenhagen [emphasis
added] <http://www.cvce.eu/content/publication/
1999/1/1/02798dc9-9c69-4b7d-b2c9-f03a8db7da32/
publishable_en.pdf> accessed 24 March 2015.
(176) See Art 3(1) TEU (n171); EU Charter of Fundamental Rights (n
171) Art 51.
(177) Art 7 TEU (n171). See alsoManfred Nowak, Human Rights
Conditionality in Relation to Entry to, and Full Participation in, the
EU in Philip Alston (ed),The EU and Human Rights(OUP, 1999) 687,
690. On the link between certain sanctions operated by the EU
members against another member and the EU identity, seeStefan
Seidendorf, Defining Europe Against its Past?Memory Politics and
the Sanctions Against Austria in France and Germany (2005) 6German
Law Journal439, 443 et seq.
(178) Art 49 TEU (n171); European Council in Copenhagen:
Conclusions of the Presidency (22 June 1993) DOC/93/3 (Copenhagen
Criteria) Art 7(A)(iii). On the link between this condition to become a
member of the EU and the underlying identity of the EU, seeHelene
Sjursen, Why Expand? The uestion of Legitimacy and Justification in
the EUs Enlargement Policy (2002) 40Journal of Common Market
Studies491, 508.
(179) See, e.g.,Gwendolyn Sasse, EU conditionality and minority
rights, EUI Working Papers 2005/16, 1 <http://cadmus.eui.eu/
bitstream/handle/1814/3365/05_16.pdf?sequence=1> accessed 24
March 2015.
(180) Art 6 TEU (n171). On the state of the negotiation process between
the Council of Europe and the European Union regarding the EUs
accession to the European Convention on Human Rights, seehttp://
www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/default_en.asp
accessed 30 March 2015.
Social Identity, International Groups, and International Law
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(181) See, e.g., Giuseppe Balducci, The study of the EU promotion of
human rights: the importance of international and internal
factors (2008) GARNET Working Paper No. 61/08, 3, 16. See also
Cremona, Values in the EU Constitution(n174) 7 et seq. See also
Gráinne de Brca, The European Courts and the Security Council:
Between Dédoublement Fonctionnel and Balancing of Values: Three
Replies to Pasquale De Sena and Maria Chiara Vitucci (2009) 20EJIL
853.
(182) Art 3(5) of the TEU provides as follows: 5.In its relations with the
wider world, the Union shall uphold and promote its values and
interests and contribute to the protection of its citizens. It shall
contribute to peace, security, the sustainable development of the Earth,
solidarity and mutual respect among peoples, free and fair trade,
eradication of poverty and theprotection of human rights, in particular
the rights of the child, as well as to the strict observance and the
development of international law, including respect for the principles of
the United Nations Charter [emphasis added].
(183) Art 21(1) of the TEU provides that 1.The Unions action on the
international scene shall be guided by the principleswhich have
inspired its own creation, development and enlargement, and which it
seeks to advance in the wider world: democracy, the rule of law, the
universality andindivisibility of human rights and fundamental
freedoms, respect for human dignity, the principles of equality and
solidarity, and respect for the principles of the United Nations Charter
and international law [emphasis added].
(184) On Arts 3(5) and 21 of the TEU, seeLorand Bartels, The EUs
Human Rights Obligations in Relation to Policies with Extraterritorial
Effects (2014) 25EJIL1071, 10735.
(185) See also Parliament, Joint Communication to the European
Parliament and the Council, Human Rights and Democracy at the Heart
of EU external actiontowards a more effective approach (12
December 2011) COM(2011) 886 final, 4.
(186) Council of the European Union, EU Strategic Framework and
Action Plan on Human Rights and Democracy (25 June 2012) 11855/12
[emphasis added] 12 <http://www.consilium.europa.eu/uedocs/
cms_data/docs/pressdata/EN/foraff/131181.pdf> accessed 30 March
2015. This role of the EU in the international community is also
emphasized in the EUs official website: The European Union sees
human rights as universal and indivisible. It actively promotes and
defends them both within its borders and when engaging in relations
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with non-EU countries. European Union,The EU and Human Rights,
<http://eeas.europa.eu/human_rights/index_en.htm> accessed 24
March 2015.
(187) See SectionIIabove.
(188)Gráinne de Brca, The Evolution of EU Human Rights Law in
Paul Craig and Grainne de Burca (eds),The Evolution of EU Law(2nd
edn, OUP, 2011) 465, at 491, see also 4924.
(189)Ibid., 467and see the references therein. See also 494.
(190) See SectionIIabove.
(191) On the role of human rights norms in defining identities of liberal
states, see Risse and Sikkink (n169) 12, 89.
(192) See SectionIIabove.
(193) See, e.g., the EU statements cited above in this section (such as
the 2012 strategic paper). On the EU self-representation regarding
the emphasis of values in its foreign policy, see also,Sonia Lucarelli,
Introduction: Values, Principles, Identity and European Union Foreign
Policy in Sonia Lucarelli and Ian Manners (eds),Values and Principles
in European Union Foreign Policy(Routledge, 2006) 1, 24.
(194) See, e.g., Balducci (n181) 13, 1621;Joseph S Nye,Soft Power
(Public Affairs, 2004) 76, 80;Richard Gowan and Franziska Brantner, A
Global Force for Human Rights? An Audit of European Power at the
UN (2008) European Council on Foreign Relations Policy Paper, 1, 8
<http://kms2.isn.ethz.ch/serviceengine/Files/RESSpecNet/91657/
ipublicationdocument_singledocument/12CA5C36-C4CC-46BD-B38FB1CB7717F217/
en/Global_Force_Human_Rights_EU_0908.pdf>
accessed 24 March 2015.
(195)European Union (EU)Facts (21 May 2014) <http://
www.nobelprize.org/nobel_prizes/peace/laureates/2012/eu-facts.html>
accessed 24 March 2015.
(196) See, e.g.,European Commission,Furthering Human Rights and
Democracy Across the Globe(2007) <http://eeas.europa.eu/
human_rights/docs/brochure07_en.pdf> accessed 24 March 2015;
European Union,EU Strategic Framework on Human Rights and
Democracy(25 June 2012) <http://www.consilium.europa.eu/uedocs/
cms_data/docs/pressdata/EN/foraff/131169.pdf> accessed 24 March
2015.
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(197)Lorand Bartels,Human Rights Conditionality in the EUs
International Agreements(OUP, 2005) 712, 6870.
(198) Regulation (EU) No 978/2012 of The European Parliament and of
the Council of 25 October 2012, applying a scheme of generalized tariff
preferences and repealing Council Regulation (EC) 732/2008 [2012]OJ
L303/1, Art 9(1)(b) [hereafter EU GSP Regulation].
(199) EU GSP Regulation (n198) Art 9(1)(c).
(200) Art 9(1)(b) of the EU GSP Regulation (n198) Art 9(1)(b).
(201) Section of the Preamble of the EU GSP Regulation (n198).
(202) On the evolution of such human rights provisions in the EU
treaties, seeBartels,Human Rights Conditionality(n197) 12 et seq.
(203)Lorand Bartels, Human Rights and Sustainable Development
Obligations in EU Free Trade Agreements (September 2012) Legal
Studies Research Paper Series University of Cambridge Faculty of Law
1; Communication from the Commission to the Council and the
European Parliament, The European Unions role in promoting human
rights and democratisation in third countries COM (2001) 252 final.
(204)Bartels,The European Parliaments Role in Relation to Human
Rights in Trade and Investment agreements(February 2014) <http://
www.europarl.europa.eu/RegData/etudes/etudes/join/2014/433751/
EXPO-JOIN_ET(2014)433751_EN.pdf> accessed 24 March 2015, 3.
(205) Bartels, 6.
(206) See, e.g., Art 2 of the 2002 Euro-Mediterranean Agreement
establishing an Association between the European Communities and
their Member States, of the one part, and the Hashemite Kingdom of
Jordan, of the other part, [2002]OJ L129/3 (15.5.2002).
(207) On the EU Commissions discretionary powers under such a
provision (Article 86 of the 2006 EULebanon Association Agreement)
and its non-binding nature, see Case C581/11 PMugraby v Council of
the European Union, judgment of 12 July 2012 [69][71];Lorand
Bartels, A Model Human Rights Clause for the EUs International Trade
Agreements 1718 (February 2014) German Institute for Human
Rights and MISEREOR 10,<http://ssrn.com/abstract=2405852>
accessed 24 March 2015.
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(208)Bartels,The European Parliaments Role in Relation to Human
Rights(n204), 8. Regarding the above second element (non-execution
clause), these measures must be taken in accordance with the relevant
rules of international law, seeBartels,Human Rights Conditionality(n
197) 7.
(209) See Chapter 6, SectionIV(b).
(210) See SectionsII(c)andIIIabove.
(211) On the link between a weak bond to society and non-compliance,
seePaul Rock, Sociological theories of crime, in Mike Maguire, Rod
Morgan, and Robert Reiner (eds),The Oxford Handbook of Criminology
(OUP, 2012) 57;John J Macionis,Sociology(14th edn, Pearson 2012)
202.
(212) See, e.g., with regard to the EU human rights policy,Rebecca
Adler-Nissen, Stigma Management in International Relations:
Transgressive Identities, Norms, and Order in International
Society (2014) 68International Organization143, 1605.
(213) Inconsistent trade measures towards non-members in this sphere
seem to erode the legitimacy of the EUs human rights policy towards
non-member states. On the incoherent application of such trade
measures towards non-members suspected for breaching human rights,
see, e.g.,Armin Paasch, Human Rights in EU Trade PolicyBetween
Ambition and Reality (December, 2011)Ecofair Trade Dialogue
Discussion Paper3, 1213;Nivedita Sen and Balu G Nair, Human
Rights Provisions in the forthcoming Indian-EU Free Trade
Agreement (2011) 4National University for Juridical Science Law
Review417, 423, 430;Guy Harpaz and Eyal Rubinson, The Interface
between Trade, Law and Politics and the Erosion of Normative Power
Europe (2010) 35European Law Review551, 56670.
(214) On the link between the conception of international human rights
and international legitimacy, see, e.g., Balducci (n181) 4;Michael
Joseph Smith, Sovereignty, Human Rights and Legitimacy in the Post-
Cold War World (2001) <http://faculty.virginia.edu/irandhumanrights/
mjsonsovty.htm> accessed 24 March 2015. On international human
rights protection and standard of legitimacy (and standard of
civilization), seeJack Donnelly, Human Rights: A New Standard of
Civilization? (1998) 74International Affairs1, 14.
(215)Bartels, A Model Human Rights Clause for the EUs International
Trade Agreements(n207) 10;Bartels,The European Parliaments Role
Social Identity, International Groups, and International Law
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in Relation to Human Rights(n204) 12;Bartels,Human Rights
Conditionality(n197) 9; Sen and Nair (n213) 427.
(216) See, e.g.,Fabienne Zwagemakers, The EUs Conditionality Policy:
A New Strategy to Achieve Compliance (January 2012) IAI Working
Papers 12/03, 56 <http://www10.iadb.org/intal/intalcdi/PE/
2012/09808.pdf> accessed 24 March 2015;Daniela Donno,
Legalization and Leverage: Human Rights Conditionality in the
European Unions Economic Agreements (American Political Science
Association Annual Meeting, New Orleans, September 2012) 79, 19
24, and see the references therein;Bartels,Human Rights
Conditionality(n197) 1719; Paasch (n213) 1415. See alsoHadewych
Hazelzet, Suspension of Development Cooperation: An Instrument to
Promote Human Rights and Democracy? (August 2005), European
Centre for Development Policy Management, 1213.
(217) See, e.g.,Malcolm Shaw,International Law(7th edn, CUP, 2014)
694;Matthew CR Craven, The Problem of State Succession and the
Identity of States under International Law (1998) 9EJIL1423.
(218) Issues regarding the succession of territorial treaties (e.g.,
boundary treaties) have been clarified in practice and international
tribunals jurisprudence. See, e.g., Shaw (n217) 7023.
(219) Craven (n217) 144. See also Shaw (n217) 695.
(220) Craven states in that regard: Identity, therefore, provides the key
to determining the proper set of norms that are to be applied in a given
case. Craven (n217) 152.
(221) Craven (n217) 162.
(222) Fitzmaurice apparently supports this principle;Malgosia
Fitzmaurice, Treaties in R Wolfrum (ed),Max Planck Encyclopedia of
Public International Law(OUP, 2010) <http://opil.ouplaw.com/home/
EPIL>para 118.
(223) See SectionII(b)above.
(224) See, e.g.,Riccarda Torriani, The Dynamics of National
Identity (2002) 37Journal of Contemporary History559.
(225) On the links between names and social identity, see Woodward (n
1) 256. For a sociological discussion of names, seeThomas Molnar, A
Sociology of Names (1999) 34The Intercollegiate Review39.
Social Identity, International Groups, and International Law
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(226) On the symbolic, political, and legal implications of changing the
name of a state, seeMichael Ioannidis, Naming a State: Disputing over
Symbols of Statehood at the Example of Macedonia (2010) 14Max
Planck Yearbook of United Nations Law507. For a list of countries
which changed their names, see Historical Country Names (Nations
Online) <http://www.nationsonline.org/oneworld/
hist_country_names.htm> accessed 24 March 2015.
(227) See SectionII(b)above.
(228) See SectionII(c)above.
(229)John F Dovidio and others, Prejudice, Stereotyping and
Discrimination: Theoretical and Empirical Overview in John F Dovidio
and others (eds),Prejudice, Stereotyping and Discrimination(Sage,
2010) 58;Gregory R Maio and others Attitude and Intergroup
Relations in John F Dovidio and others (eds),Prejudice, Stereotyping
and Discrimination261, 265; Stephan and Stephan (n13) 7.
(230) Dovidio and others (n229).
(231) On the omnipresence of stereotypes and the natural inclination to
categorize the world (including regarding inter-group relations), see,
e.g.,Carl L Palmer, Which Cues Matter? The Implications of Stereotype
Appeals and Explicit Predispositions for Group-Centric Issue
Opinion (August 2010) 23 <http://ssrn.com/abstract=1664772>
accessed 24 March 2015. Stephan and Stephan state in that regard: In
fact, stereotypes, as defined here, are an almost inevitable consequence
of categorization. Stephan and Stephan (n13) 7. See alsoPatricia G
Devine and Lindsay B Sharp, Automaticity and Control in Stereotyping
and Prejudice in Todd D Nelson (ed),Handbook of Prejudice,
Stereotyping, and Discrimination(Taylor & Francis, 2009) 61.
(232) Stephan and Stephan (n13) 4. Anastasio and others explain that
one reason why such stereotypes are resistant to change is that they
are functional in reducing the complexity of the social environment.
Anastasio and others (n28) 236.
(233) Worchel and Rothgerber (n86) 778. See also Dovidio and others
(n229) 6.
(234) Stephan and Stephan (n13) 21 and see the empirical studies cited
therein.
(235) Stephan and Stephan (n13) 21. On the activation of stereotypical
consideration without awareness, see also Palmer (n231) 3.
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(236) Stephan and Stephan (n13) 22; See also Dovidio and others (n
229) 8.
(237) Stephan and Stephan (n13) 25 and the see the empirical studies
cited therein. See also Anastasio and others (n28) 238.
(238) See, e.g., Vienna Convention on the Law of Treaties (adopted 23
May 1969, entered into force 27 January 1980) 1155 UNTS 331 Arts 26,
31(1), 46(2), 69(2)(b).
(239) On the increasing importance of the principle of fair and
equitable treatment in international investment law, see, e.g.,Rudolf
Dolzer and Christoph Schreuer,Principles of International Investment
Law(2nd edn, OUP, 2012) 130;Moshe Hirsch, Between Fair and
Equitable Treatment and Stabilization Clause (2011) 12Journal of
World Investment and Trade783.
(240) As Malintoppi explains, the terms independence and
impartiality are often used interchangeably but they must be
distinguished. The term independence refers to the absence of
connection, financial or otherwise, with a party to the proceedings. The
term impartiality refers to the absence of prejudice or bias.Loretta
Malintoppi, Independence, Impartiality, and Duty of Disclosure of
Arbitrators in Peter Muchlinski, Federico Ortino, and Christoph
Schreuer (eds),Oxford Handbook of International Investment law(OUP,
2008) 789, 807. See also the jurisprudence of the European Court on
Human Rights cited inMehmet Ali Yilmaz v TurkeyApp no. 29286/95
(EctHR, 25 September 2001) [35].
(241)Valente v The Queen, [1985] 2 SCR 673, [15].
(242) Art 14(1) of the ICCPR provides as follows: All persons shall be
equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law,
ICCPR (adopted 16 December 1966, entered into force 23 March 1976)
999 UNTS 171 Art 14(1).
(243) HRC.Arvo O Karttunen v Finland, Communication No. 387/1989
(views adopted on 23 October 1992) UN Doc CCPR/C/46/D/387/1989
[7.2].
(244) See Statute of the International Criminal Court (adopted 17 July
1998, entered into force 1 July 2002) 33 UNTS 993 Art 17(2).
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(245)Legal Consequences of the Construction of the Wall(Order of 30
January 2004) [2004] ICJ Rep 3, [10][11], [14] (dissenting opinion of
Judge Buergenthal).
(246)Legal Consequences of the Construction of the Wall(Order of 30
January 2004) [2004] ICJ Rep 3, [8].
(247) See ICTY, Rules of Procedure and Evidence (10 December 2009)
UN Doc IT/32/Rev.44, rules 15 and 34 <http://www.icty.org/x/file/
Legal%20Library/Rules_procedure_evidence/IT032_rev44_en.pdf>
accessed 24 March 2015. And see also the Statute of the International
Criminal Court (n244) Art 41.
(248)Prosecutor v Furundzija(Judgment) IT-95-17/1A (July 21, 2000)
[179]. Consequently, the Appeals Chamber ruled that a judge should be
considered impartial if the circumstances would lead a reasonable
observer, properly informed, to reasonably apprehend bias, see [189].
On this decision, see also,Theodor Meron, Judicial Independence and
Impartiality in International Criminal Tribunals (2005) 99AJIL359,
3667.
(249) See the European Convention on Human Rights (adopted 4
November 1950, entered into force 3 September 1953) 213 UNTS 222
(ECHR) Art 6(1).
(250)Ali Yilmaz v. Turkey(n240) [36]. See alsoPiersack v Belgium
(1982) Series A No. 53, [30(a)].
(251) See American Convention on Human Rights (adopted 21
November 1969, entered into force 18 July 1978) 1144 UNTS 143 Art
8(1).
(252)Barbera et al. v Venezuela,Judgment, Inter-American Court of
Human Rights Series C No 182 (5 August 2008) [56] [emphasis added].
See alsoPalamara-Iribarne v Chile, Judgment, Inter-American Court of
Human Rights Series C No. 135 (22 November 2005) [146].
(253) See the Convention on the Settlement of Investment Disputes
between States and Nationals of other States (adopted 18 March 1965,
entered into force 14 October 1966) 575 UNTS 159 Arts 14(1) and 57.
(254) Art 14(1) of the ICSID Convention (n253) Art 14(1) and see also
Art 40(2).
(255)Christoph H Schreuer, Loretta Malintoppi, August Reinisch, and
Anthony Sinclair,The ICSID Convention: A Commentary(CUP, 2009)
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1202; See alsoSuez and Vivendi v Argentina(Decision on a Second
Proposal for the Disqualification of a Member of the Arbitral Tribunal)
ICSID Case No. ARB/03/19 (12 May 2008), 17.
(256) See, e.g.,Abaclat v Argentina(Request for the Disqualification of
President Pierre Tercier and Arbitrator Albert Jan van den Berg) ICSID
Case No. ARB/07/5 (15 September 2011) [6];Burlington v Ecuador
(Decision on the Proposal for Disqualification of Professor Francisco
Orrego Vicuña) ICSID Case No. ARB/08/5 (13 December 2013) [68],
[80]. See also Schreuer and others (n255) 12018.
(257)Amco Asia Corporation and others v Republic of Indonesia
(Decision on the Proposal to Disqualify an Arbitrator) ICSID Case ARB/
81/1 (24 June 1982) (unreported), referred to in Schreuer and others (n
255) 1203. For several recent decisions that may indicate a different
trend in that regard, seeChiara Giorgetti, Towards a Revised
Threshold for Arbitrators Challenges Under ICSID? (Kluwer
Arbitration Blog, 2 July 2014) <http://kluwerarbitrationblog.com/blog/
2014/07/03/towards-a-revised-threshold-for-arbitrators-challengesunder-
icsid/> accessed 24 March 2015.
(258) See, e.g.,Ruth Mackenzie and Philippe Sands, International
Courts and Tribunals and the Independence of the International
Judge (2003) 44HJIL271, 280. On the relations between arbitrators
and advocates in investment proceedings, see Malintoppi (n240) 792.
(259)Suez and Vivendi v Argentina(n255) 17.
(260) Similarly, in such cases, the above-discussed proposal tabled by
Judge Buergenthal seems more desirable than the existing standard
under the ICJ jurisprudence. For a possible different interpretation of
the above ICSID provisions, see, e.g., James Crawford, Challenges to
Arbitrators in ICSID Arbitrations (PCA Peace Palace Centenary
Seminar, October 2013) <http://pca-cpa.org/shownews.asp?
ac=view&nws_id=398&pag_id=1261> accessed 24 March 2015.
(261) See SectionII(b)above.
(262) See SectionII(c)above.
(263) On the presumption of impartiality, see, e.g.,Prosecutor v
Furundzija(n248) [182]; Schreuer and others (n255) 12012.
(264) See ICCPR (n242) Art 1; Declaration on Friendly Relations
between States, UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/
RES/2625(XXV).
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(265) Art 96(3) of the First Protocol Additional to the Geneva
Conventions. And see the definition in Art 1(4) of this Protocol. Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflict (Protocol I)
(adopted 8 June 1977, entered into force 7 December 1979) 1125 UNTS
3.
(266) ICCPR (n242) Art 27; See also the UNGA, Declaration on the
Rights of Persons belonging to National or Ethnic, Religious and
Linguistic Minorities (18 December 1992) UN Doc A/RES/47/135.
(267) ILO Convention concerning Indigenous and Tribal Peoples in
Independent Countries (adopted 27 June 1989, entered into force 5
September 1991) 28ILM1382.
(268) One of the central elements of crimes against humanity is that
the perpetrators target the relevant persons by reason of their
membership in a group rather than their individual characteristics. Art
7(1)(h) of the Statute of the International Criminal Court provides: (h)
Persecution against any identifiable group or collectivityon political,
racial, national, ethnic, cultural, religious, gender [emphasis added].
Statute of the International Criminal Court (n244) Art 7(1)(h); the
interpretation of Art 7(1)(h) above inThe Elements of the Crime
clarifies that: 2. The perpetrator targeted such person or persons by
reason of the identity of a group or collectivity or targeted the group or
collectivity as such. Report of the Preparatory Commission for the
International Criminal Court on the Elements of Crimes (2 November
2000) UN Doc PCNICC/2000/1/Add.2. On this feature of crimes against
humanity, seeDavid Luban, A Theory of Crimes Against
Humanity (2004) 29Yale Journal of International Law85, 103, 1078.
(269) Art 1A(2) of the Refugees Convention provides as follows: As a
result of events and owing to well founded fear of beingpersecuted
for reasons ofrace, religion, nationality,membership of a particular
social groupor political opinion [emphasis added]. Convention relating
to the Status of Refugees, (adopted 28 July 1951, entered into force 22
April 1954) 189 UNTS 150.
(270) The ICCPR and GA Resolution 2625 do not provide a definition of
people, and similarly the First Protocol to the Geneva Convention. And
see International Covenant on Economic, Social and Cultural Rights,
(adopted 16 December 1966, entered into force 3 January 1976) 993
UNTS 3. See alsoYves Sandoz and others (eds),Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12
August 1949(Martinus Nijhoff Publishers, 1987) 52. On the lack of an
Social Identity, International Groups, and International Law
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internationally agreed definition of minorities, see, e.g.,Kristin
Henrard, Minorities, International Protection in R Wolfrum(ed),Max
Planck Encyclopedia of Public International Law(OUP, 2008), <http://
opil.ouplaw.com/home/EPIL>para 2. The ILO Convention on
Indigenous Peoples does not define who indigenous and tribal peoples
are. ILO,Manual: ILO Convention on Indigenous and Tribal Peoples,
1989 (No. 169)(rev. edn, ILO, 2003). On the lack of generally accepted
definition of the concept of indigenous people, see also Henrard, para
17. The term crime against humanity is defined in Art 7 of the ICC
Statute but the term identifiable group or collectivity is not defined in
the Statute or in the Elements of Crime. The term refugee is defined
in Art 1 of the Refugee Convention but the Convention does not define
the term membership of a particular social group under Art 1A(2) of
the Convention.
(271) See, e.g.,Christine M Von Der Haar,Social Psychology: A
Sociological Perspective(Pearson 2005) 370;Brewer, The Many Faces
of Social Identity(n12); Barth (n36) 1011;Jarlah Benson,Working
More Creatively with Groups(Routledge 2000) 5.
(272) On the objective element in the definition of people under the
principle of self-determination, see UNESCO, Final Report and
Recommendations of the International Meeting of Experts on further
study of the concept of the rights of peoples UNESCO, UNESCO (Paris,
2730 November 1989) (22 February 1990) UN Doc SHS-89/CONF.
602/7, 78 <http://www.burmalibrary.org/docs18/Rights_of_Peoplesreport-
UNESCO-red.pdf> accessed 23 March 2015. And regarding this
element in the definition of people under the 1977 First Protocol, see
Yves Sandoz and others (eds)Commentary on the Additional Protocols
(n270) 53. On this element in the definition of the term identifiable
group or collectivity under the ICC Statute, see, e.g., Elements of the
Crime, Art 7(1)(h)(3) (n268). On this element in the definition of social
group under Art 1 of the Refugees Convention, see Refugee and
Humanitarian Division, Department of Immigration and Multicultural
and Indigenous Affairs,Particular social group: An Australian
Perspective(2007) 65, 71, 81 <http://www.immi.gov.au/media/
publications/refugee/convention2002/07_social_group.pdf> accessed 23
March 2015; Henrard (n270) para 4; OHCHR, Minority Rights:
International Standards and Guidance for Implementation (2010) 2. On
this element in the definition indigenous people, under Convention on
Indigenous Peoples, seeManual: ILO Convention on Indigenous and
Tribal Peoples(n270) 7.
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(273) On the subjective element in the definition of people under the
rules regarding self-determination, see UNESCO Expert Group (n272)
78. Regarding this element in the definition of people under the First
Protocol, seeYves Sandoz and others (eds) Commentary on the
Additional Protocols(n270) 52. On this element in the definition of
social group under Art (1) of the Refugees Convention see Refugee
and Humanitarian Division,Particular social group: An Australian
Perspective(n272) 67, 71;Dieter Kugelmann, Refugees in R Wolfrum
(ed),Max Planck Encyclopedia of Public International Law(OUP, 2010),
<http://opil.ouplaw.com/home/EPIL>para 11. On this element in the
definition of minority under Art 27 of the ICCPR, see Henrard (n270)
para 13; OHCHR, Minority Rights (n272) 3. On this element in the
definition of indigenous people under the Convention on Indigenous
Peoples, see Art 1(2) of the Convention on Indigenous Peoples; Henrard
(n270) para 17;Manual: ILO Convention on Indigenous and Tribal
Peoples(n270) 8.
The subjective element is not included in the above-mentioned Art 7(1)
(h) of The Elements of the Crime of the ICC. On the exceptional nature
of this provision (and other provisions aiming to protect social groups
from persecution), see further below.
(274) See SectionII(b)above.
(275) See, e.g., regarding the definition of people under the First
Protocol,Yves Sandoz and others (eds) Commentary on the Additional
Protocols(n270) 53.
(276) See, e.g., regarding minority groups, Henrard (n270) paras 14
16, and the authorities cited therein; see in that regard on the
definition of social group under the Refugees Convention, OHCHR,
Minority Rights (n272).
(277) On the exceptional nature of legal rules aiming to protect social
groups from persecution or discrimination, see further below.
(278) See SectionII(b)above.
(279) See, e.g., Arts 1316 of the Convention on Indigenous Peoples;
Henrard (n270) para 18.
(280) Art 1(2) of the Indigenous Convention provides as follows: Selfidentification
as indigenous or tribal shall be regarded as a
fundamental criterion for determining the groups to which the
provisions of this Convention apply. TheManual: ILO Convention on
Indigenous and Tribal Peoplesexplains that Convention No. 169 is the
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first international instrument which recognizes self-identification of
indigenous and tribal peoples as a fundamental criterion.Manual: ILO
Convention on Indigenous and Tribal Peoples(n270) 8.
(281) The absence of governmental recognition of aminority groupis
not considered as a determinant fact. Henrard (n270) paras 14, 16;
OHCHR, Minority Rights (n272).
(282) As discussed above, the internal element of self-identity should not
constitute an essential element with regard to legal rules that aim to
protect persecuted groups.
(283) Jenkins (n2) 12, see also 1113.
(284) See SectionIV(b)above.
(285) See SectionIV(b)above.
(286) See SectionIV(c)above.
(287) On the right of minority groups to maintain their identity, see, e.g.,
Henrard (n270) para 234.
(288) Art 4(2) of the Treaty on European (consolidated version) provides
that: The Union shall respect the equality of Member States before the
Treaties as well as their national identities [2012] OJ C 326.
(289) See, e.g., the North American Free Trade Agreement (signed 17
December 1992, entered into force 1 January 1994) (1993) 32ILM289
(NAFTA) Art 2106 and annex 2106. On the application of this provision
to investment disputes, see, e.g.,UPS v Canada(Award on the Merit)
UNCITRAL (24 May 2007) [166], [169]. On cultural exception in
NAFTA, seeJingxia Shi,Free Trade and Cultural Diversity in
International Law(Hart Publishing, 2013) 2329.
(290) For an analysis of cultural exception in the GATT and GATS
(including aspects of national identity), see, e.g.,Sandrine Cahn and
Daniel Schimmel, The Cultural Exception: Does It Exist in GATT and
GATS Frameworks (1997) 15Cardozo Arts and Entertainment Law
Journal281.
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Access brought to you by:
Annex 1023
Thomas D. Grant, Aggression Against Ukraine: Territory, Responsibility, and International Law
(2015)
Aggression against Ukraine
Territory, Responsibility, and
International Law
Thomas D. Grant
palgrave
macmillan
Contents
Preface
Treaties and Other International Texts
Cases
Municipal Instruments and Other State Documents
Abbreviations
Introduction
The State, Territory, and International Law: The Annexation of
2014 as a Fundamental Challenge
Addressing the Challenge: An Unanswered Need
General Outline
Part I Aggression against Ukraine
Chapter 1 "Glory and Outstanding Valor: The Seizure of Crimea
Acts in Two Municipal Legal Orders
Acts in the International Legal Order; Self-Determination and
Unilateral Secession
The Crimean Tatars after Secession
From Recognition to Annexation: The Limits of a Discretionary Act
Chapter2 The Use of Force against Ukraine
The Black Sea Fleet Agreements
Protection of Co-ethnics Abroad
Regional Stability
Humanitarian Principles or "Responsibility to Protect"
Invitation
Force in Aid of Self-Determination
Counterintervention
Reprisal
Chapter 3 Non-recognition
State Practice
United Nations: Political Organs
vii
xiii
xxi
xvii
xxix
I
6
8
II
15
16
23
33
35
43
44
47
49
50
50
54
58
59
63
64
71
vi • Contents
United Nations: Human Rights Organs 78
Council of Europe 79
OSCE 81
Other Organizations 81
Annexation in Judicial and Arbitral Forums 83
Consequences of Non-recognition of the Unlawful Annexation of Crimea 88
Sanctions 97
Part II The Territorial Settlement and International Law 101
Chapter 4 The Privileged Character of Boundaries and Territorial Regimes 103
International Boundary and Territorial Guarantees 104
Boundaries in Codification and General Lawmaking 116
Boundaries and Territorial Regimes in Judicial and Arbitral Practice 119
The lnadmissibility of the Forcible Claim 127
Conclusions as to the Territorial Settlement: "If the Boundaries
between States were not Scrupulously Respected 128
Chapter 5 Responsibility, Use of Force, and Boundaries 133
Responsibility and the Ordinary Breach 133
Responsibility beyond the Ordinary Breach 134
Three Aspects of the Serious Breach 136
The Wall Advisory Opinion and the Problem of the Unlawful "Situation" 139
Conclusions as to Responsibility and the Territorial Breach 144
Chapter 6 Use of Force and Other Values 147
Chapter 7 Boundaries, Territory, and Human Rights 155
Law without Territory 156
The "End of Geography" and Its Pitfalls 157
Russia's Human Rights Program in a New Territorial Age 160
Conclusions as to Human Rights and the Territorial Settlement 165
Part III Domestic Order, International Order, and
Mechanisms for Change 169
Chapter8 The West's Interventions and Russia's Argument 171
Kosovo 171
Russia's Volte-Face 179
Iraq 183
Justifications for Changing Regime (or How to Survive Exceptions in
a System of Rules) 193
Conclusion 199
Notes 203
Bibliography 255
Index 27l
4 • Aggression against Ukraine
boundaries and at times going so far as to challenge the cohesion of States. There
is a great deal to be said, and to be done, about participants in international relations
that are not States.
There are limits, however, to a theory that posits the eclipse of territorial power.
The limits become patent when that power shows its teeth. Even the largest nonState
actor has few options at its disposal on the day when the local police shutter
its offices or the national parliament nationalizes its assets. It is as helpless as it
was a hundred years ago if its property and personnel are caught in the cross-fire
of armed conflict. As for the individual, if the State chooses to lock him in a cell
incommunicado for years at a time, the prospect that the new international order
will vindicate his rights provides cold comfort at best. The legal institutions of a
de-territorialized world may offer remedies later; but, on the day, the State's power is
what matters, and the power of the State to destroy and to disrupt is unrivaled. Even
in a world where diverse extraterritorial effects are now commonplace, the most
potent incidents of State power remain those that the State exercises in its territory.
This is a reality that may have submerged in the age of global governance, but it
never disappeared.
It is this reality that entails a central -arguably, the most central-characteristic
of the international order that emerged after 1945. To an extent that had not been
seen before, a shared understanding exists of the territorial limits of each State's
power.' The international order that emerged is, in short, an order of settled boundaries
and enduring territorial settlements.
The emergence at the same time of a system of international law of unprecedented
scope and effect is not a mere coincidence. The system of international law as
it now serves us would not have come into being without the territorial settlement.
This is because State power is territorial power; and international law begins with
the proposition that each State knows where it may exercise power as a manifestation
of its own legal order and where, absent special considerations of international
law, it may not. Each State is responsible for the exercise of power in its territory. The
vast majority of public institutions-including especially institutions of coercion-are
still State institutions and, so, clarity regarding the territorial responsibility of
States is indispensable if those institutions are not to fall into conflict. A legal system
perhaps can survive in time of general conflict among States; but, if it does survive,
it will be a system of bare minimums. Conflict between States is inimical to a public
order based on rules.
A practitioner of the law, or a scholar absorbed in the remarkable realities of
international law as it exists today, well may give little or no thought to the antecedents
that made it possible for international law to achieve its present form.
It has been a long time since the general public order was affected by States going
to war over territory. Those incidents of territorial conflict that have occurred
since 1945 have mostly concerned small areas, and the States in conflict have
limited their claims to asserting an existing title. Before March 2014, few States-arguably
none-asserted a right to change title by force. Territorial questions thus
have been left to the margins, a matter for specialist lawyers and cartographers.
The result has been a conception of international law and its institutions that
takes the geography out of the law. In that conception, which is the prevailing one
Introduction 5
today, the system of rules is now so potent and far-reaching that, having dissolved
the old conflicts over territory and supplanted them with a regulated public order,
the rules sustain themselves.
The rise of the non-State actor as a focal point of theory and of practice has
played a major role in this conceptual development. How the State might breach its
obligations to a corporation, how a State might abuse the rights of an individual-and
what remedies against the State such parties have when injured---are central
questions in the system as it has functioned over the past half century. But the injury
that may be done when a State comes into conflict with another State is greater by
far. The international legal system has not quite ignored this. By the same token,
when it has addressed inter-State conflict, it has done so as a largely cautionary
exercise, seldom as a response to an actual eruption between States,° and never a
war between major States endangering the system as a whole. That sort of conflict
has been largely absent, or it has been confined to situations where it is really only
a special case of State power directed against individuals--that is, a dispute in one
form or another about how the deployment of force by a State affects human rights
or humanitarian law. In turn, the absence of true, system-jeopardizing inter-State
conflict reinforces the prevailing conception that the solutions to the present problems
of international life are to be found in that supposedly self-sustaining international
law system. Scarcely considered are the questions of whether the system is in
truth self-sustaining and, if not, what sustains it. The present work mcans to sound
a cautionary note about the prevailing conception and its omissions.
The law has inherent strengths as a means for bringing order to society. The
purpose here is not to question the inherent strengths. It is instead to suggest that
international law would not have emerged in its present form amid global disarray;
and that the definitiveness and finality of the territorial settlement have been the
central factor in providing the requisite minimum order. The territorial settlement
has created and preserved the conditions in which international law has thrived.
If the geographic limits of States' power had not been identified and agreed with
definitiveness and finality, then the sheer growth of international governance would
not have been possible. International law in its modern form has enabled its many
practitioners and other stakeholders to think about things other than the territorial
settlement; but that settlement remains the necessary precondition of the functioning
of the law. It is dubious to suppose that international law in its present form
would survive their loss. It is for this reason that a challenge to the territorial settlement
requires a full response.
The present work concerns the most serious challenge to the territorial settlement
since 1945. The annexation of territory from Ukraine, which the Russian
Federation announced in March 2014, is one of the very few instances since 1945
in which a State has undertaken by force to impose a new territorial settlement.
It is the first since 1945 in Europe. And it is the first in which a Permanent Member
of the Security Council has sought by force to extend its own borders and thus to
aggrandize its territorial power.' It not only threatens a Member State of the United
Nations, but it also threatens the system that the stability and finality of the territorial
settlement for seventy years has enabled to thrive. It is a threat of a character that
international lawyers had assumed would not arise again.
6 • Aggression against Ukraine
Addressing the Challenge: An Unanswered Need
The annexation of Crimea is not the first modern incident to cause despondency
to settle over those who study and practice international relations and international
law. A prevalent view holds, with weariness, that this is yet another example of a
large State using force without accountability and outside a system of rules. In that
view, we have seen it all before. Those addressing the situation, even while examining
its particulars, adopt an air of resignation over the whole.
That the State which carries out a serious breach of international law would
adduce special considerations in its defense is to be expected. It comes as no surprise
that there are apologists for annexation. The surprise is that the response to
date in the mainstream of the field would be resigned in the face of an act so at
odds with the modern law.
Resignation here is accompanied by a particular view of events, which, put succinctly,
is this: Ukraine now reaps what other States have sown. This is the view,
expressed by some, that armed interventions by other States in other places in recent
times have been in essence the same and thus opened the door to the present crisis."
In this view, the annexation of Crimea belongs to a continuum of recent events,
and this act--the disruption by force of the territorial integrity of a member State
of the United Nations----is, at most, a change in degree from recent practice, but not
change in kind. As such, in this view, aggression against Ukraine merits no more
alarm than past incidents, as it constitutes no more serious challenge against the
legal system than what came before.
The present work takes a different view. It does not accept that the invasion and
putative partition of Ukraine in 2014 is an event to which the door was opened by
interventions in Kosovo or Iraq. It considers instead that aggression against Ukraine
marks a potential turning point; that international law therefore must respond to it
s strongly as possible to reject or to isolate its effects and that, for the law to do so,
hose who interpret and apply the law must recognize the fundamental discontinuty
between the recent past and the present act of aggression, however controversial
he recent past may be.
When considering arguments that rely upon history it is important not to confuse
he timelines. On the date of Russia's aggression against Ukraine, eleven years had
lapsed since a coalition of States intervened in Iraq and forcibly replaced the govrnment
of that State. Zhou Enlai may have told Henry Kissinger in the early 1970s
hat it was still too soon to assess the impact of the French Revolution--though
he timelines there indeed seem to have been confused; it later became clear that he
vas talking about the 1968 student unrest, not the events of 1789. Either way, the
assage of time is relative, In relation to the Russian intervention against Ukraine,
rirtually no time at all passed before radical claims and radical steps in the pursuit
f those claims appeared in alarming succession. The president of the Republika
rpska declared that the separation of Crimea from Ukraine "will create a new pracice
in the world" and the time would be soon at hand for the dissolution of Bosnia
nd Herzegovina." Some weeks later the China National Offshore Oil Corporation
a State-controlled enterprise of China) placed a drilling platform in an area subject
o Viet Nam's maritime entitlement; China threatened to impose its competing
Annex 1024
Andrew Wilson, The Crimean Tatar Question: A Prism for Changing Nationalisms and Rival
Versions of Eurasianism, 3(2) Journal of Soviet and Post-Soviet Politics and Societies (2017)
1
TheCrimeanTatarQuestion:APrismfor
ChangingNationalismsandRivalVersionsof
Eurasianism*
AndrewWilson
Abstract:ThisarticlediscussestheongoingdebatesaboutCrimean
Tataridentity,andthewaysinwhichtheCrimeanTatarquestionhas
beencrucialtoprocessesofreshapingUkrainianidentityduringand
aftertheEuromaidan.TheCrimeanTatarquestion,itisargued,isa
keytestinthestrugglebetweencivicandethnicnationalisminthe
new Ukraine. The article also looks at the manner in which the
proponents of different versions of “Eurasianism”—Russian, Volga
Tatar, and Crimean Tatar—have approached the Crimean Tatar
question,andhowthisaffectstheattitudesofalltheseethnicgroups
totheRussianannexationofCrimea.
Key words: Crimean Tatars, Euromaidan, Eurasianism, national
identity,nationalism—civicandethnic
Introduction
IntheperiodeithersideoftheRussianannexationofCrimea,the
Crimean Tatar issue has become a lodestone for redefining the
national identities of all the parties involved. The mainstream
Crimean Tatar movement has been characterized by steadfast
oppositionfirsttotheYanukovychregimeinUkraineandthento
Russian rule. This position has strengthened its longstanding
ideology of indigenousness and special rights, but it has also
* TheauthorisextremelygratefultoRidvanBariUrcostaforhisinvaluablehelp
withresearchforthisarticle,toBobDeenandZahidMovlazadaattheOSCE
HCNM,toProfessorPaulRobertMagocsi,andtotheanonymousreviewerswho
madeusefulcommentsandcriticisms.
2ANDREWWILSON
JSPPS3:2(2017)
belatedly cemented its alliance with Ukrainian nationalism.
Meanwhile, Ukraine’s wouldbe new supraethnic civic identity
draws heavily on the Crimean Tatar contribution. Russia’s
attempted incorporation of Crimea has been hampered by its
unwillingness to give proper space to Crimean Tatar identity,
despiteitspromotionofarivalloyalistCrimeanTatarmovement.
TheCrimeanTatarissueisalsoaprismthroughwhichrival
versions of the resurgent idea of Eurasianism are redefining
themselves.RussianEurasianismisthebestknownofthese,bothin
generalandasacoverstoryfortheannexationofCrimea;butother
versionsandrepudiationsoftheEurasianideahavetakennewforms
inCrimeanTatarandUkrainiancircles,andalsoamongtheVolga
TatarsofKazan.
Thisarticleisinfiveparts.Firstisabriefhistoricalbackground.
Next,theCrimeanTatarissueisdiscussedasafactorinchanging
Ukrainian politics and identity debates. There then follows an
analysisofdebateswithintheCrimeanTatarmovement,especially
the conflictbetween the traditional ideology of indigenous rights
and the Crimean Tatar version of Eurasianism.The latter is then
comparedwithallRussianandVolgaTatarversionsofEurasianism.
Finally,thearticleexaminesidentitydebateswithinCrimeain2014,
findingthatduringthatyear,thesedebatesweremainlyfocusedon
thedoctrineof“Russianhistoricalrights,”meaninglittlespacehas
beenfoundforCrimeanTataridentityinoccupiedCrimea.
Background
The Russian annexation of Crimea was formally declared on 18
March 2014. In his victory speech, Putin claimed that “inpeople’s
hearts andminds, Crimea has always been aninseparable part
ofRussia,”atleastsincethebaptismofVladimir(Volodymyr)the
Great, prince of Kievan Rus’, in 988. “Residents ofCrimea,” he
continued,“saythatbackin1991theywerehandedoverlikeasack
ofpotatoes,” leaving them stranded when “theRussian nation
became one ofthebiggest, if not thebiggest ethnic group
intheworld tobe divided byborders.” In independent Ukraine
“time andtime again attempts were made todeprive Russians
THECRIMEANTATARQUESTION3
JSPPS3:2(2017)
oftheir historical memory, even oftheir language andtosubject
themtoforcedassimilation,”andin2014theywerethreatenedby
“terror,murderandriots”organizedbythe“nationalists,neoNazis,
RussophobesandantiSemites [who] executed this coup” in Kyiv.
Russia’srole,however,wasmerelytofacilitate“selfdetermination,”
to “help create conditions so that theresidents ofCrimea
forthefirsttimeinhistorywereabletopeacefullyexpresstheirfree
willregardingtheirownfuture.”1
Subsequentstudieshaveconfirmedtheinitialimpressionthat
the real coup was in Crimea. The government was changed
unconstitutionally after government buildings were occupied by
RussiansoldiersandtheUkrainianBerkutmilitia,aftertheirrolein
thekillingsinKyiv.2Plansforthecouphadbeenlaidthroughsecret
contactswithCrimeanpoliticiansseveralmonthsinadvance.3The
crowdsoutsidewere organizedby thesameCrimean politicians,4
andreinforcedbybogusdemonstratorsflown infrom Russia,but
“to play the part of ordinary Crimeans.” 5 The referendum of 16
March on joining Russia was conducted under conditions of
occupation, and the results were rigged.6Contrary to the official
claimthat96.8%voted“yes”tounionwithRussiaonaturnoutof
1 “Address by the President of the Russian Federation,” President of Russia
OfficialSite,18March2014,http://en.kremlin.ru/events/president/news/20603.
Unlessotherwisestated,allURLscitedbelowwereaccessibleon3March2017.
2 TarasBerezovets,Anektsiia:ostivKrym.Khronikyhybridnoiviiny(Kyiv:Bright
Star,2015).
3 MikhailZygar,AlltheKremlin’sMen:InsidetheCourtofVladimirPutin(New
York:PublicAffairs,2016),274–79;DanielTreisman,“WhyPutinTookCrimea,”
ForeignAffairs(May/June2016).
4 RustamTemirgaliev,interviewedbyPetrKozlov,“RustamTemirgalievorazvitii
sobytii, privedshikh k referendumu v Krymu,” Vedomosti, 16 March 2015,
www.vedomosti.ru/politics/characters/2015/03/16/eslietoimeloopredelennu
yurezhissururezhisserunuzhnopostavitpyatsplyusom.
5 Zygar,AlltheKremlin’sMen,279;SergeiKanev,“Geroipodgrifom‘Sekretno,’”
Novaiagazeta,16June2014,https://www.novayagazeta.ru/articles/2014/06/16/
59974geroipodgrifom171sekretno187; and Sergei Kanev, “Spetsturisty,”
Novaia gazeta, 2 July 2014, https://www.novayagazeta.ru/articles/2014/07/01/
60170spetsturisty.
6 Halya Coynash, “Myth, ‘Observers’ and Victims of Russia’s Fake Crimean
Referendum,” Human Rights in Ukraine, 16 March 2016, http://khpg.org/
en/index.php?id=1458089893&w=referendum.
4ANDREWWILSON
JSPPS3:2(2017)
80.4%,theRussianHumanRightsCouncilreportedthattheturnout
wasbetween30%and50%,ofwhomonly50%–60%votedforunion.7
TheveteranCrimeanTatarleaderMustafaDzhemilevclaimedthat
the Crimean Tatars’ participationwas minimal and that only 34%
votedinCrimeaoverall.8
Thatsaid,therewasabaselineofsupportforjoiningRussia—
41% ina real poll held in earlyFebruary;9and local politicianshad
pushed for Russian intervention as much as acting as Moscow’s
puppets(inanefforttosavetheirpositionsfromuncertainpoliticsin
Kyiv,butalsotogetridofoutsidersimposedonthembyPresident
Yanukovych).10ButCrimeahasnot“alwaysbeenaninseparablepart
ofRussia.”ItwasfirstannexedbytheRussianEmpirein1783.Itwas
only“Christianized”orRussifiedaftertheCrimeaWarin1853–56.11
Previously,theCrimeanTatarKhanatehadbeenthedominantforce
intheregionforoverthreehundredyears,havingseparatedinthe
1440s from the Golden Horde, which itself had conquered the
peninsulainthethirteenthcentury.KievanRus’seemstohavehad
nomorethancoloniesinCrimea.CrimeawaspartofSovietUkraine
after1954,andindependentUkraineafter1991.Ukrainianhistorians
7 “ProblemyzhiteleiKryma,”SovetpriPrezidenteRFporazvitiiugrazhdanskogo
obshchestva pravam cheloveka, 21 April 2014, http://old.presidentsovet.ru/
structure/gruppa_po_migratsionnoy_politike/materialy/problemy_zhiteley_kr
yma.php(thoughseethesubsequentdisclaimers).
8 “MustafaJemilev:‘InFact34,2%ofCrimeanPopulationTookPartinPseudo
Referendum on March 16,’” Mejlis official web site, 25 March 2014,
http://qtmm.org/en/news/4373mustafajemilevinfact342ofcrimeanpopu
lationtookpartinpseudoreferendumonmarch16.InaspeechtotheUN,he
said 32%, “Crimean Tatars: Dzhemilev Fears Violence Under Russian Rule,”
Unrepresented Nations and Peoples Organization, 7 April 2014;
http://unpo.org/article/17022.
9 “HowRelationsbetweenUkraineandRussiashouldlooklike?PublicOpinion
Polls’ Results,” Kiev International Institute of Sociology (KIIS),4March 2014,
http://kiis.com.ua/?lang=eng&cat=reports&id=236&page=1.
10 Kimitaka Matsuzato, “Domestic Politics in Crimea, 2009–2015,”
Demokratizatsiya 24, no. 2 (Spring 2016): 225–56. Unfortunately, Matzusato
basessomeofhisanalysisaroundthe“Korsunmassacre,”anallegedattackon
CrimeansbyUkrainiannationalists,forwhichlittleactualevidenceexists.
11 Mara Kozelsky, Christianizing Crimea: Shaping Sacred Space in the Russian
EmpireandBeyond(DeKalb,IL:NorthernIllinoisUniversityPress,2010);and
Kelly O’Neill, SouthernEmpire: The Logic and Limits of Russian Rule in the
Crimea(YaleUniversityPress,forthcoming).
THECRIMEANTATARQUESTION5
JSPPS3:2(2017)
pointtoalonghistoryofearlierengagement,withlocalUkrainian
Cossacks having a more intimate interaction with the peninsula
thanthenortherlyMuscovitestate.12
Sincetheannexation,Ukrainianschoolsandmediahavebeen
closed.13 (At the last census in 2001, 24% of the population was
Ukrainian,comparedto58%Russian,and12%CrimeanTatar).14On
theotherhand,PutinpromisedthattheCrimeanTatarswouldbe
bettertreatedbyRussiathanbyUkraine.Butbetween17,000and
20,000 Crimean Tatars had left the peninsula by February 2016,
accordingtoCrimeanTatarleaders.15Disappearances,extrajudicial
killings,torture,andilltreatmentinCrimeahavebeendocumented
bytheOSCE,16andbytheEuropeanParliament.TheNGO“Crimea
SOS” kept a running count of cases of human rights violations,
shownonamapofCrimea—279asof24February2017.17
Kyiv’sNeglect
ButUkrainedidnotplayitshandwell,either.InsofarasKyivhad
a“Crimeastrategy”betweenthedissolutionoftheUSSRin1991and
12 Valerii Smoliy (chief editor), Istoriia Krymu v zapytanniakh ta vidpovidiakh
(Kyiv:Naukovadumka,2015).
13 “ReportoftheHumanRightsAssessmentMissiononCrimea(6–18July2015),”
OSCE HCNM, 8 September 2015, www.osce.org/odihr/reportofthehuman
rightsassessmentmissiononcrimea.
14 Seehttp://2001.ukrcensus.gov.ua/eng/results/general/nationality/.
15 Interview with Mustafa Dzhemilev, RBK Ukraina, 10 February 2016,
www.rbc.ua/rus/interview/dzhemilevvoprosudeokkupatsiikrymaudelyaets
ya1455039385.html.
16 OSCEHCNM,“HumanRightsAssessmentMissioninUkraine.HumanRights
and Minority Rights Situation,” The Hague/Warsaw, 12 May 2014,
www.osce.org/odihr/118476.Forotherreportsonthehumanrightssituationin
Crimea,seeOSCEHCNM,“ReportoftheHumanRightsAssessmentMission
on Crimea (6–18 July 2015),” OSCE HCNM, 8 September 2015,
www.osce.org/odihr/180596; Andrii Klymenko, “Human Rights Abuses in
Occupied Crimea,” Freedom House/Atlantic Council, March 2015,
www.atlanticcouncil.org/publications/reports/humanrightsabusesinrussia
occumpiedcrimea;and“TheHumanRightsSituationinCrimea,inparticular
of the Crimean Tatars,” 3 February 2016, www.europarl.europa.eu/sides/get
Doc.do?type=MOTION&reference=P8RC20160173&language=EN.
17 Seethemapathttp://crimeamap.krymsos.com/eng/map.html.
6ANDREWWILSON
JSPPS3:2(2017)
Russianannexationin2014,itwaslargelyadefensiveone.Russian
basedseparatismwasseenasthemainthreat.Eventhispolicywas
myopic,however,asitassumedthiswouldcomeintheformofa
locallybasedmovement,ratherthanexternalattack.Kyivtherefore
concentratedonbuyingoffthatmovementbyturningablindeyeto
thecriminalizationofthelocalelite—andwasreluctanttopushthe
Crimean Tatar issue too hard for fear of gifting that elite a
mobilizational issue. Even when the supposedly Europeanizing
Viktor Yushchenko was Ukrainian president from 2005 to 2010,
according to Mustafa Dzhemilev, “we were surprised by his
indifference.”18At their first officialmeeting in 2005,Yushchenko
even asked the Crimean Tatars to drop their 1991 Declaration of
Sovereignty—anexclusivehistoricalclaimtoselfdeterminationin
Crimea (see below)—as less important than, and a threat to,
Ukraine’slegalsovereignty.19
Ironically, it was Yushchenko’s successor, the Russian
speaking Viktor Yanukovych, who helped revive autonomist
sentimentinCrimeabefore2014bysoforciblyputtinghisownguys
incharge.Everyone,includinglocalRussiannationalists,Crimean
Tatars, and Ukrainophiles, resented the rule of the socalled
makedontsy(the“Macedonians,”therulersfromthenorth,apunon
the town of Makiivka in Yanukovych’shome region of Donetsk).
AccordingtoRustamTemirgaliev,DeputyHeadoftheCabinetof
MinistersofCrimeainthefirsthalfof2014,thereweretwotrendsin
Crimeaoverthewinterof201314:thefirst,“thewavethatremoved
the‘donetskies’wasboundupwiththesecondtrend—reunification
with Russia.”20 Resentment against the makedontsy shaped local
politics more than the largely mythical threat of “Ukrainian
fascism,”untilRussianinterventionshapedthefinaloutcome.21
18 Author’sinterviewwithMustafaDzhemilev,17January2010.
19 Diliaver Osman, “Kryms’ki tatary i Ukraina: robota nad omylkamy,” Krym.
Realii,13August2014,http://ua.krymr.com/a/26529110.html.
20 “RustamTemirgalievorazvitiisobytii.”
21 TemirgalievwasaVolgaTatar,butwithaCrimeanTatarwife,whotriedtosteer
amiddlecourse,compromisingwiththeoccupyingauthorities,inthespringof
2014;butRussiasoonlostinterestinsuchpolicies.
THECRIMEANTATARQUESTION7
JSPPS3:2(2017)
Kyiv’s neglect of the Crimean Tatars was a multiple error.
Mainstream Crimean Tatar ideology was based on the same
underlyingprincipleofindigenousrightsasUkrainiannationalism.
Clearer support for their cause would have helped to deflate the
grandioseandahistoricalKremlinnarrativeabout“eternalRussian”
Crimea, and to combat broader Russian attempts to undermine
Ukrainianidentityandhistoryasawhole.TheCrimeanTatarswere
alsothebestorganizedpoliticalforceonthepeninsula—their12%
(13%by2014)ofthepopulationmademuchmoreimpactonlocal
politics,atbothgovernmentalandstreetlevel,thanthe24%who
wereUkrainianbuthighlyRussified.
Infact,Kyivhadabdicatedsomuchpoweronthepeninsula
bythe2010sthatCrimeanTatarleaderscouldclaim“weareapro
Ukraineforce…sometimeswearetheonlyproUkrainianforce.”22
TheconstitutionalmechanismsthatKyivintroducedinthe1990sto
subordinate local political institutions proved ineffective in 2014,
whenamajorityoflocalpoliticiansandbureaucratssimplyswapped
sides.MustafaDzhemilevcomplainedthatthe local securityforces
had“mostlybeentrainedtofightCrimeanTatars”ratherthanRussian
separatists.23Dzhemilev’ssuccessorRefatChubarovsummeduphis
viewofthesituationinMay2016:twentythreeyearsofneglecthad
“ledtothe[paradox]thatthepositionsoftheUkrainianauthorities
onthepeninsulaweretheweakest[ofall].Russiatookadvantageof
this.”24
By contrast, Kyiv kept the main Crimean Tatar political
institution at arm’s length. The Qurultay, and its smaller
plenipotentiary body the Mejlis, was chosen in wellorganized
electionseveryfiveyearsfrom1991.ButKyivarguedthatadefacto
parliament challenged the authority of the Ukrainian state.
PresidentLeonidKuchmadevisedacompromisein1999,settingup
a“CouncilofRepresentativesoftheCrimeanTatarPeopleAttached
tothePresidentofUkraine”—aformulationthatdisguisedthefact
22 Author’sinterviewwithRefatChubarov,17January2010.
23 “MustafaDzhemilev:WeareBeingTrapped,”KyivWeekly,16May2014.
24 “Chubarov nazval prichinu poteri Ukrainoi Kryma,” Lenta.ru, 19 May 2016,
https://lenta.ru/news/2016/05/19/chubarov/.
8ANDREWWILSON
JSPPS3:2(2017)
that its membership was basically the Mejlis. The Council
concentrated mainly on practical issues like citizenship and
education, but Kyiv felt unable to commit many resources to
addressing the returnees’ greatest everyday concerns, which were
landandhousing.
DebatingUkrainianCrimea
Nor did Kyiv ever make a strong case for the Ukrainianness of
Crimea. As a result, Kyiv had no strong narrative to back up the
principleoftheinviolabilityofstateborderswhenRussiaviolatedit
in2014.Onlysincetheannexationhastherebeenarediscoveryof
theearlierwritingsonthisissue,whichwasfirstraisedbyUkrainian
intellectualsinthelatenineteenthandearlytwentiethcenturies.As
theseearliertextsshow,thetwinissuesofCrimeaandtheCrimean
TatarshavelongbeenapartofUkrainianidentitydebates,though
notalwayspullinginthesamedirection.
ForthehistorianMykhailoHrushevskyi(1866–1934),Crimea
wasthe thirdUkraine.The firsttwoUkraineswere Galicia inthe
west,whichconnectedUkrainetoGermanicEurope,andthecentral
Dnipro region,with its historical ties to Russia.The outlet tothe
southviaCrimea,andthenorth–southaxisingeneral,werethekey
factors encouraging the consolidation of the other Ukrainian
elements, which, once they were a consolidated part of an
independent Ukrainian state, would allow Ukraine to become a
regionalleaderratherthananobjectofstrugglebetweeneastand
west.25ForthegeographerStepanRudnytskyi (1877–1937),Crimea
and the Black Sea completed the natural geographical space of
Ukraine’s northsouth river systems: “thewhole Ukrainian nation
took its way southeast along the Ukrainian rivers. To this day
[writingin1918]thenationalterritoryoftheUkraineisadvancing
irreversibly in that direction.”26Without the Black Sea, Ukrainian
25 Hennadii Korol’ov, “Nova Ukraina bez Rossii: chornomors’ka oriientatsiia u
pohliadakhHrushevs’koho,” in his FederalizmMykhailaHrushevs’koho:mify,
uiavlennia,proekty(Kyiv:InstituteofHistory,2012),167–85.
26 Stephen Rudnitsky, Ukraine. The Land and its People (New York: Ukrainian
AllianceofAmerica,1918),230–31.
THECRIMEANTATARQUESTION9
JSPPS3:2(2017)
civilization would be circumscribed, pressed back north into the
forestzone.
ForthenationalistgeographerYuriiLypa(1900–44),Ukraine
wasanatural“vault,”thenorthernshoreofthe“BlackSeafortress.”27
CrimeawasthereforethekeytoafutureUkrainiangeopolitics.The
“integralnationalist”thinkerDmytroDontsov(1883–1973),writing
in1919,likewisearguedthat“SevastopolwithCrimeaisthekeyto
[potential future Ukrainian] rule over the [then Russian]
Hinterland,”thatis,theinteriorsofEurasia,“whichin1855[before
theParisConferencethatendedtheCrimeanWar]wasRussiaand
isnowUkraine.”28ForLypa,CrimeaandtheBlackSeawerealsothe
linktoawiderworldandafuturechainofalliancesintheCaucasus,
Turkey, and the Middle East. Russia’s apparent domination of
Eurasiawould not last: in the nottoodistant future a Ukrainian
quadrantinsouthwestEurasiawouldbeanaturalallyofaCentral
Asianquadrant,whiletheChinesepushedtowardsSiberia—Russia
wouldbeleftwithhistoricalMuscovyinthenorthwest.29
Lypa’sdoctrinewasmoreofaclaimtoCrimeathanrecipefor
a healthy relationship with the Crimean Tatars. Rudnytskyi and
LypawerestrongopponentsofRussianimperialismandclaimednot
to believe inanyUkrainian equivalent;but they didapprove ofa
form of Ukrainian colonialism, that is, the supposedly “natural”
expansionofUkrainiansettlementintoneighboringlands.InLypa’s
case this involved the explicit threat of displacing the Crimean
Tatars.30“InCrimeatheUkrainiansarewinningthebattleofblood.
TheTatarpopulationisnomorethanaquarter,”hewrotein1941,
beforetheDeportationoftheCrimeanTatarsin1944.“Experiments
with blood and anthropological measures,” he continued, “show
thattheTatarslongagolosttheiranthropologicalidentityinCrimea
27 Yurii Lypa, Chornomors’ka doktryna (Odesa: Ukrainian Black Sea Institute,
1942),9.
28 Dmytro Dontsov, “O hranytsiakh Ukrains’koi derzhavy pid vzhliadom
politychnym,”1918,reprintedinIstoriiaKrymu,314.
29YuriiLypa,RozpodilRosii(L’viv:InstytutNarodoznavstva,1995—reprintofthe
1941edition),52and61.
30 Lypa,Chornomors’kadoktryna,15–17.
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and have become Ukrainians by blood, leaving only the Tatar
language.”31
UkrainianOrientalism
There is a Ukrainian version of Orientalist scholarship, however,
which has been characterized by more understanding of and
support for the Crimean Tatar cause.32The Ukrainian Orientalist
traditionislesswellknownthanitsRussian“Eurasian”counterpart.
Partofitsraisond’êtreistodenytheclaimsoftheRussianversion;
consequently, unlike its Russian counterpart, it does not make
universalistclaimsforthewholeofEurasia,33andismoreconcerned
withculturalandhistoricallinksthangeopolitics.
For the founding father of Ukrainian Oriental studies,
AhatanhelKrymskyi(1871–1942),whosesurnameindicateshispartly
CrimeanandLipka(Lithuanian)Tatarorigins,Crimeawasachannel
forhealthyculturalsynthesisbetweenUkraineandtheeast.Thomas
Prymak, Krymskyi’s secondgeneration disciple, has argued that
“interactionsbetweenUkraineand[broadly]Turkeyhaveplayeda
largeroleintheformationofmodernUkrainianculture,inwhich
theCossackeraissoprominent.”34Accordingtoaseriesfoundedby
Likbez,anonlineandpublishingprojectaimedatRussianspeakers,
in2016:
TraditionalUkrainianhistoriography(historywriting)usuallycentersonthe
history of just the Ukrainians. But the existence of nomads, the Golden
Horde and the CrimeanKhanate are also important for us.The Crimean
Tatars are, apart from the Ukrainians, the only people in contemporary
Ukrainewhohavetheirownseparatestatehistoryhere.Itwaspreciselythe
31 Lypa,RozpodilRosii,73–74.
32 Dmitri Shlapentokh, “From Russian to Ukrainian Eurasianism: The New
‘Historical’FriendsandEnemies,”AsianEthnicity14,no.4(2013):449–66.
33 TatianaZhurzhenko,BorderlandsintoBorderedLands:GeopoliticsofIdentityin
PostSovietUkraine(Stuttgart:ibidemVerlag,2010),53.
34 Thomas Prymak, “Slightly Slanted Eyes? Ukrainians, Turks and Tatars,” The
Ukrainian Weekly, 23 October 2011, updated in December 2015 at
www.slideshare.net/ThomasMPrymak/slightlyslantedeyes.
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CrimeanTatarswhoactivatedandstimulatedtheappearanceofUkrainian
Cossackdom,whichbeganthecreationofmodernUkraine.35
This interrelationship supposedly outweighed religious tensions.
According to the historian Valerii Vozgrin (see below), “Crimea
playedfortheSich[theCossacks’militarybase]theveryimportant
role of natural counterweight to powerful ‘fraternal’ Christian
states.”36Andviceversa:theCossacksfoughtfor,oralongsidethe
CrimeanTatars:“theLitvaRusstatesupportedtheestablishmentof
theCrimean state.”37A recentpopular series ofbookson military
weapons and uniforms has sections on both Ukrainians and
CrimeanTatars,depictingthemfightingtogetheragainstcommon
enemiesmore oftenthanagainsteach other.38Ithasbeenargued
that this tendency towards mutual influence and mutual aid
happened “spontaneously, without any prior arrangement, in a
neighborly,humanmanner.”39More likely, it served political and
militarypurposes.40
The modernday emphasis on a historiography of
“partnership” was most evident in a book published by the
UkrainianInstituteofNationalMemory(memory.gov.ua)in2016.
ThebookisentitledNashKrym(“OurCrimea”),aclearrejoinderto
theRussiannationalistsloganKrymnash!(“Crimeaisours!”).Key
chapters talk of “How the Cossacks with the Crimean Tatars
defended Crimea from the Turks” in the seventeenth century;
parallel fates in the eighteenth century, when “both peoples [the
35 OlenaBachyns’kaetal.,Lytsaridykohopolia.Pluhomimushketom.Ukrains’kyi
shliakh do Chornoho moria (Kharkiv: Klub simeinoho dozvillia, 2016), 3–4.
“Litva”isnormallymistranslatedasthemedievalGrandDuchyof“Lithuania.”
Theauthorcallsit“Litva–Rus”tostresstheSlavicinfluenceinthestate.The
seriesgrewoutoftheonlineprojectatlikbez.org.ua.
36 ValeriiVozgrin,Istoriiakrymskikhtatar.Ocherkietnicheskoiistoriikorennogo
naseleniiaKrymavchetyrekhtomakh(St.Petersburg:NestorIstoriia,2013),vol.
1,633.
37 Bachyns’kaetal.,Lytsaridykohopolia,3–4.
38 See, preeminently, K. A. Lypa and O. V. Rudenko, Viis’ko Bohdana
Khmel’nyts’koho(Kyiv:NashchasUkrains’kamilitarnaistoriia/Zhyvaistoriia,
2010).
39 Vozgrin,Istoriiakrymskikhtatar,vol.1,635.
40 CommunicationwithProfessorPaulRobertMagocsi,28February2017.
12ANDREWWILSON
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CossacksandtheCrimeanTatars]losttheirindependence”;andthe
“UkrainianCrimeanTatarunionoftherevolutionaryera”in1917.41
InanotherUkrainianbookpublishedin2017,RussianMyths
aboutUkraineandherPast,awholesectionisdevotedtodebunking
common Russian tropes about the Crimean Tatars, and exposing
themasdivideandruletactics.Onemythwasthat“Ukrainiansand
CrimeanTatarsareirreconcilableneighbors,betweenwhomthere
neitherwasnor isany alternative to fiercecompetition.”Another
wasthat“TurksandTatarsstrovetoenslaveUkrainiansandconvert
themtoIslam.TheswitchtoRussia’ssupremacysavedUkrainefrom
TurkicTatar expansion.” Third was the Russian myth that
“UkrainianCossacksledasacredreligiouswarasChristiansagainst
Turks and Tatars.”42On the contrary, the two were natural allies
against Muscovy, and “the Crimean Khanate had neither the
strengthnoranyplanstoabsorbUkrainianlands.”“Throughoutits
history,”theKhanatewasalwaysopento,andtolerantof,Cossack
settlers—a“freeUkrainianpopulation”existedinCrimea“sincethe
timesofKievanRus’.”43
Aswellasmutualstimulus,therewasculturalintermingling.
According to Prymak again, “there are about 4,000 current
UkrainianwordsofTurkicorigin,aboutthesameasthenumberof
ArabismsinmodernSpanish.”44ContrarytoLypa’sabovementioned
claimofaonewayprocessofCrimeanTatarassimilation,therehas
infactbeencenturiesofethnicinterminglingandmutualinfluence
(evenifthiswaspartlybecauseoftheCrimeanTatars’roleinthe
localslavetrade).AccordingtoPrymak,“Islamicslaverywasnever
quite the same as plantation slavery in the ancient world or in
America”; manumission was common and “integration and
assimilationwerenottheexception,butrathertherule…Amongthe
41 YaroslavAntoniuketal.,NashKrym:nerosiis’kiistoriiukrain’skohopivostrova
(Kyiv:KIS/UkrainianInstituteofNationalMemory,2016),11,10and131.
42 “MifyproKrym,”inViktorBrekhunenko,Viinazasvidomist’.Rosiis’kimifypro
Ukrainutaiimynule(Kyiv:UkrainianInstituteofArchaeology,2017),229–52.
43 Ibid.,237and242.
44 Prymak,“SlightlySlantedEyes?”
THECRIMEANTATARQUESTION13
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presentdayCrimeanTatars,thereismostcertainlyagooddoseof
SlavicandUkrainianblood.”45
ForsomeUkrainians,theneedforacommonfrontwiththe
Crimean Tatar cause was clear before the 1944 Deportation (in
CrimeanTatar,Sürgünlük),especiallyaftertheirseparateattempts
toestablishindependentstatehoodbothendedinfailureafter1917.
Oleksandr Shul’hyn (Shul’gin/Shulgin, 1889–1960), the former
foreign minister of the shortlived Ukrainian National Republic,
reflecting on the issue in 1934, argued in favor of overcoming
historicaltensions:
Crimea—alandofmixedpopulationwherenoonehasamajority—wasonce
astrongholdoftheCrimeanTatars,ourhistoricalenemyalliesbutnowour
friends.Ukrainehasalwaysrespectedandwillrespectthenationalrightsof
the former staterulers of Crimea, and we arecertainthat Ukrainehas
andwillbethesurestfriendoftheTatarsinthestruggleforthefreedomof
Crimeafromforeignpretensions.46
Thatsaid,theUkrainiannationalistsofthe1930swerelargely
based in interwarPoland;andwereunable to influencewartime
eventsinCrimeain1941–44.Later,however,ahandfulofUkrainian
dissidentsofthe1960sand‘70slikePetroGrigorenkoagitatedfor
the Crimean Tatar cause alongside the Ukrainian. The idea of
parallel statehood began to develop.47Because the Crimean Tatar
statebuildingprojecthadhistoricallyproceededintandemwiththe
Ukrainianproject,itwasitsnaturalallyinthepresentday.Someform
of selfrule for the Crimean Tatars in Crimea was therefore not an
alternativetoUkrainianruleoverthepeninsula,butwasinfactthebest
meansofsecuringthatrule.48ClaimstoatrulyUkrainianstatehoodin
CrimeahavetorelyonHrushevskyi’sargumentthatKievanRus’was
45 Prymak,“SlightedSlantedEyes?”;andPaulRobertMagocsi,ThisBlessedLand:
CrimeaandtheCrimeanTatars(Toronto:UniversityofTorontoPress,2014),48.
46 OleksanderShul’hyn,Bezterytorii:ideolohiatachynUriadyU.N.R.nachuzhyni
(Paris:Mech,1934),102.
47 “Parallel statehood” is a key theme in the book by the Kapranov brothers,
Mal’ovanaistoriiaNezalezhnostiUkrainy(Kyiv:Hamazyn,2013).
48 TheCrimean“AutonomousSovietSocialistRepublic”waspartoftheRussian
RepublicwhenLypaetal.werewritinginthe1930sandearly1940s.
14ANDREWWILSON
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reallyUkraine–Rus’,orgobacktoearlierperiodsliketheScythianera.49
According to one farfromnationalist commentator, Kost’
Bondarenko,“theKhansoftheGiraydynasty[theCrimeanKhanate’s
rulingfamily,directdescendantsofGenghisKhan]arejustasmuch
‘our’nationalheroesastheCossackHetmans.”50Butittooktheevents
of2013–14toreallyacceleratetheprocess.
TheNewCivicUkraine
It has become commonplace to talk of the emergence of a new
UkrainiancivicnationalistidentityassociatedwiththeEuromaidan
and the war in the east. But there has been much debate as to
whether it was cause or consequence, and came before or after
Russia’sinterventions.Ukrainehasalsoseenaparallelriseinbotha
newcivicandethnicnationalism.51ThenewUkrainehasembraced
multilingual, multiethnic, and multiconfessional realities that
wereoftenseenasasourceofweaknessinthepast.TheCrimean
Tatarsareakeypartofthisnewpositivitytowardspluralism.Infact,
giventhecentralityoftheCrimeanissue,theyarearguablythekey
part. But at the same time, there has been a reinvention, even a
“Europeanization”ofsomestrandsofUkrainiannationalism,i.e.the
growthofanantiIslamicanimusmoretypicaloftheFrontNational
inFranceorthePartyforFreedomintheNetherlands.52
There were positive attitudes towards Crimean Tatars in
Ukrainian“liberalcircles”before2014,butatamassculturallevelit
wasonly“aftertheannexationofCrimeathateveryoneinmainland
49 MykhailoVideiko,UkrainefromTrypilliatoRus(Kyiv:Krion,2010).
50 Kost’Bondarenko,Istoriiavprofil’(Kyiv:Znannia,FundofUkrainianPolitics,
2012),11.
51 For example, Volodymyr Kulyk, “National Identity in Ukraine: Impact of
EuromaidanandtheWar,”EuropeAsiaStudies68,no.4(June2016):588–608;
andWinfriedSchneiderDeters,“Euromaidan,RebirthoftheUkrainianNation,
andtheGermanDebateonUkraine’sNationalIdentity,”EuromaidanPress,27
November 2015, http://euromaidanpress.com/2015/11/27/theeuromaidanthe
rebirthoftheukrainiannationandthegermandebateonukrainesnational
identity/2/.
52 Tadeusz A. Olszaski,“Ukraine’sWartimeNationalism,”OSWCommentary,
no.29,28August2015,www.osw.waw.pl/sites/default/files/commentary_179_
0.pdf.
THECRIMEANTATARQUESTION15
JSPPS3:2(2017)
Ukraine started to adore and love [sic] Crimean Tatars,”53with a
fashionforCrimeanTatarcuisinebeingmatchedbythesuccessof
filmssuchasthebigbudgetHaytarma(“Return”)(2013),byAkhtem
Seitablaiev,aboutaCrimeanTatarpilotintheSovietairforceatthe
timeofthe1944Deportation,andReturnwiththeDawn(2013)and
Sensiz(“WithoutYou”)(2016)bytheyoungdirectorNarimanAliev.
TheDeportationisnowcommemoratedinmainstreamUkrainian
mediainaspiritofsolidarity.TheCrimeanTatarsingerJamalawas
chosen to representUkraine in the 2016 EurovisionSongContest
withhersong“1944,”partlytofurtherthisprocess,andwon.
TheCrimeanTatarswerealsoausefulfitforthemannerin
which many Ukrainian intellectuals sought to characterize the
Euromaidan.The“revolutionandthenationitforged,”ithasbeen
argued,“shouldnotbeconceptualizedintermsoffixedidentities,”
butthrough“publiclyexpressedideasandvalues.”54CrimeanTatars
couldthereforefightfor,andevensymbolize,thenewmultiethnic
cause.MustafaDzhemilevagreed:“OnlyinUkraine,can‘Banderites’
protectsynagogues,Jewscreateselfdefensehundreds[thenamefor
decentralizedgroupsofselforganizedprotestorsintheEuromaidan
events], Russians become Ukrainian nationalists and Crimean
Tatarsshout:Crimea—isUkraine!”55
OptimistsliketheanalystAbdullaRinatMukhametovclaima
uniquerolefortheCrimeanTatarsin“today’sUkraineasaspecial
subject,” and as a leading part of the new Ukrainian “political
nation.”56ThisissupposedlyinsharpcontrasttoRussia,where“the
specificinterestsofMuslimsandparticularMuslimpeoplesarenot
representedatthefederallevel.”Mukhametovpaintsapossiblyone
53 EmineZiiatdinova,“Kakmenialas’identichnost’krymskikhtatar,”Lb.ua,11July
2016, http://blogs.lb.ua/dictaphone/339926_menyalas_identichnost_krimskih.
html.
54 IlyaGerasimov,“Ukraine:TheFirstPostcolonialRevolution,”AspenReview,no.3
(2015), www.aspeninstitute.cz/en/article/32015ukrainethefirstpostcolonial
revolution.
55 Quoted by Sergei Naumovich on Facebook, 13 August 2015, www.facebook.
com/sergonaumovich/posts/449816821864692.
56 CitedinPaulGoble,“‘I’mProudtoBeaUkrainian,’CrimeanTatarLeaderSays,”
WindowonEurasia,newseries,26February2016,http://windowoneurasia2.blo
gspot.co.uk/2014/02/windowoneurasiaimproudtobe.html.
16ANDREWWILSON
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sidedpictureoftheCrimeanTatars’“loyaltyandpatriotismtoward
Ukraine.”57
Thelogoofthe“FreeCrimea”NGO(Figure1,below)depicts
thisnewsymbolicunitybyintertwiningthetwonationalsymbols—
the Ukrainian trident and the Crimean Tatar dama—as reverse
images of one another in the same family tree. According to the
logo’sdesigner,artistAndriiYermolenko,
The treethatsymbolizestheTatargenus [rid]growsfromthesepowerful
roots.SodoestheUkrainian.Ipaintedthisfamilytreeonthelogo.Tatar
CrimeaandUkrainianCrimeagrowfromthesameroot.Iwantedtoshow
thatCrimeaisUkrainian,andthatCrimeanTatarsandUkrainiansareone
politicalnation.58
Figure 1. Logo for the “Free Crimea”NGO, byAndrii Yermolenko. Source:
freecrimea.com.ua.
Crimean Tatars were increasingly prominent in Ukrainian
politics and society after 2014. Sevhil Musaieva was editor of the
leading internet siteUkrains’ka Pravda.Emine Dzheppar was the
First Deputy Minister for Information Politics. Crimean Tatar
leaders Mustafa Dzhemilev and Refat Chubarov were resident in
KyivafterhavingbeenbannedfromCrimeaforfiveyears.Butthe
57 Goble,“‘I’mProud.’”
58 “AndriiYermolenko:Kryms’kiTataryiUkraintsi—tseodnapolitychnanatsiia,”
IslamvUkraini,9February2015,http://islam.in.ua/ua/novynyukrayini/andri
yyermolenkokrymskitataryiukrayinciceodnapolitychnanaciya.
w."FREE
'CREMEA
THECRIMEANTATARQUESTION17
JSPPS3:2(2017)
braindrainalsoarguablyincreasedtheselfisolationoftheCrimean
Tatars left inCrimea,particularly given theirassociationwiththe
Ukrainiannationalcause.
OfficialpolicyinKyivtowardstheCrimeanTatarshasshifted
belatedlysincetheannexation—butnotasfarasmanywouldwant.
In March 2014 the Ukrainian parliament recognized the Crimean
Tatarsasa“rootedpeople”(seebelow)andtheMejlisasthe“higher
representativeorganoftheCrimeanTatarpeople.”59
InNovember2015parliamentclassedthe1944Deportationas
“genocide.”60Butparliamenthasyettofollowthroughwithadetailed
lawonCrimeanTatarrights.Therearesignsthatthissituationmay
change,however;in2016,anofficialconferencewasheldunderthe
slogan “One root—three peoples,” that is, accepting that the
Crimean Tatars, Krymchaks, and Karaim are the three native
peoplesofCrimea(onwhichmorebelow).61Asimilarslogan,“Three
Peoples—OneRoot:Karaim,CrimeanTatars,andKrymchaks”was
used in official promotional materials produced for the
InternationalDayoftheWorld’sIndigenousPeoples,on9August
2017, providing some belated recognition of the claim to
“rootedness”(seeFigure2below).
59Seethelawathttp://zakon4.rada.gov.ua/laws/show/1140vii.
60Seethelawathttp://zakon5.rada.gov.ua/laws/show/79219.
61 “MIPpredstavilrolik‘Odinkoren’—trinaroda’(VIDEO),”QHA,8August2016,
http://qha.com.ua/ru/obschestvo/mippredstavilrolikodinkorentrinaroda
video/163818/.
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Figure 2. Source: “‘Try narody—odyn korin’’—Mininformpolityky stvorylo
rolyk do dnia korinnykh narodiv,” Islam v Ukraini, 10 August 2017,
http://islam.in.ua/ua/novynyukrayini/trynarodyodynkorin
mininformpolitykystvorylorolykdodnyakorinnyhnarodiv.
There has been some progress towards the theoretical
recognition of some kind of Crimean Tatar ethnic autonomy in
occupied Crimea,62a proposal that Kyiv had ignored before 2014.
TherewasalsosometalkofsettingupaCrimeanTatarautonomous
district just north of Crimea in Kherson, on territory formerly
controlledbytheCrimeanTatarKhanate,63orofagovernmentin
exileorMejlisMuftiatoperatingincontinentalUkraine.64InJune
2016,PresidentPoroshenkoproposedchangingChapterTenofthe
UkrainianConstitutiontoguarantee,albeitincarefullychosennon
specificwords,“theinalienablerightoftheCrimeanTatarpeopleto
selfdeterminationaspartofasovereignandindependentUkrainian
62 Seeforexamplethemockbillboard“WelcometotheCrimeanTatarNational
Autonomy” athttp://qha.com.ua/en/politics/billboardwelcomingtocrimean
tatarrepublicsetupatentrancetocrimea/134148/.
63 AnastasiiaRinhis,“Chubarov:Vonyznushchait’sianadkryms’kymytataramy,a
Ukraina postachaie im tovary,” Ukrains’ka Pravda, 10 September 2015,
www.pravda.com.ua/articles/2015/09/10/7080788/.
64 “KrymskietatarysozdaiutMuftiiatnamaterikovoichasteUkrainy:‘VKrymuon
polnost’iu podchinen okkupantu,’—Dzhemilev,” Tsenzor.net, 4 January 2016,
http://censor.net.ua/news/367898/krymskie_tatary_sozdadut_muftiyat_na_m
aterikovoyi_chasti_ukrainy_v_krymu_on_polnostyu_podchinen_okkupantu.
TPM HAP0[lMOIMH
KOPIHL
9CEPH - MDKHAPO[IHM [EH KOPIHHMX HAPO[IB CBITY
THECRIMEANTATARQUESTION19
JSPPS3:2(2017)
state.”65InSeptember2016parliamentvotedtochangethestatusof
CrimeafromaterritorialtoaCrimeanTatarnationalautonomy,and
adraftlawwasintroducedtothiseffectinApril2017—thoughcritics
claimedgoingaheadwiththemeasurewouldonlyfurtheralienate
the Russian majority in occupied Crimea. Others have proposed
grantingtheCrimeanTatars,ortheCrimeanTatarlanguage,special
rights atanational level,evenproposingCrimeanTatarlanguage
classesforallstudentsinallschools.66
TheNewUkrainianNationalismandtheCrimeanTatar
Question
Ukrainian nationalists have also rethought their attitude towards
the Crimean Tatars, though not universally. The need to oppose
Russian aggression against Crimea has pushed the issue to the
forefront,ashastheCrimeanTatars’disproportionatecontribution
totheEuromaidandemonstrationsandtothewarintheeast,and
theirleadingroleintheprotestsagainstannexation.
ButUkrainiannationalistsandtheCrimeanTatarshavenot
always been allies. For many traditional Ukrainian nationalists,
CrimeaissupposedtobeUkrainianland,andwhiledenyingitto
Russiahasbeenthepriority,67thishascertainlynotmeantafriendly
attitude towards the Crimean Tatars. TheOUN (Organization of
UkrainianNationalists)depictedtheCrimeanTatarsasjustasmuch
anenemyastheRussians,Jews,orPoles.TheOUN“Decalogue,”for
example, a nationalist version of the Ten Commandments first
published in 1929, refers mystically to “the Spirit of the eternal
65 “Poroshenko: Maiemo vnestu u Konstytutsiiu prava kryms’kykh tatar na
samovyznachennia u skladi Ukrainy,” Ukrains’ka Pravda, 28 June 2016,
http://www.pravda.com.ua/news/2016/06/28/7113064/.
66 “Krymotrymaieshyrokuavtonomiiuabokryms’kamovabudeofitsiinapovsii
Ukraini—AliTatarzad,”Gazeta.ua,6July2016,http://gazeta.ua/articles/mova
zavtra/_krimotrimayeshirokuavtonomiyuabokrimskamovabudeoficijna
povsijukrayinialitatarzade/708780.
67 TheCrimean“AutonomousSovietSocialistRepublic”waspartoftheRussian
RepublicwhenLypaetal.werewritinginthe1930sandearly1940s.
20ANDREWWILSON
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element that has kept You from Tatar floods,” as the wouldbe
guidingforceofthenewrevolutionarynationalism.68
But even the rightwing fringes had begun to rethink their
attitudesinthe2000s.In2005theactivistVasyl’Ivanyshynwrotean
influential article “The Crimean Knot,” in which he argued that
“Crimea in its current state is a delayedaction mine under the
sovereigntyandeventheverystatehoodofUkraine.”69ACrimean
rather than Crimean Tatar Republic, he argued, was a breeding
ground for potential Russian separatism. According to the group
Tryzub(“Trident”),whichIvanyshynhelpedfound,in2005:
TheCrimeanTatarsdonothavetheirnationalmetropolisoutsideUkraine.
TheUkrainianlandistheironlynativeland,fromwhichtheywereforcibly
deportedbythe imperialcommunistregime,and thereforetheyhavethe
righttoreturntotheirnativeland.InUkraine,theCrimeanTatarsarenot
[just]anationalminority,buttheindigenouspopulationofthispartofthe
Ukrainian landonwhich theybecame a nation.Only inUkraine can the
Crimean Tatars focus as a nation and take care of their comprehensive
nationalrevivalselfaffirmationofstatehood,andguaranteetheirfuture.For
us,thenationalrightsoftheCrimeanTatarpeople,theirdesirefortheirown
nationalstateisnatural,undeniable,andbeyonddiscussion.Thisdesirecan
berealized:a)onlyontheterritoryofUkraine;b)onlyundertheflagofthe
UkrainiannationalideaandwithinaUkrainiannationalstate;c)onlywith
theparticipationandassistanceoftheUkrainiannation;d)onlyintheform
ofCrimeanTatar–Ukrainianautonomy.70
Other nationalist parties like Svoboda have been less generous,
however.71SotoohasthenotoriousAzovbattalion,foundedbythe
groupPatriotofUkrainein2014,whichhassupposedlyreinvented
itself with reference to “contemporary European neoNazism
68 Thetextcanbefoundathttps://uk.wikisource.org/wiki/_
_.
69 “‘Krymsk’yi vuzol’ Vasylya Ivanyshyna,” Banderivets’, 9 October 2015,
http://banderivets.org.ua/krymskyjvuzolvasylyaivanyshyna.html.
70 “Prohrama realizatsii ukrains’koii natsional’noii idei u protsesi
derzhavotvorennia,”Tryzub,20August2005,http://dontsovnic.com.ua/wpco
ntent/uploads/2016/01/Nashaprohrama.pdf.
71 “EduardLeonov: Teperishniazlochynna vladav svoikh utyskakhkryms’kykh
tatariv ne daleko vidiishla vid komunistychnykh poperednykiv”, Svoboda, 18
May2013,www.svoboda.org.ua/diyalnist/novyny/039190/.
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insteadofBanderite72traditions,”73andtriedtoexploitpanEuropean
sentimentsagainst radicalIslam,campaigningagainstamosque in
L’viv.AzovalsoparticipatedintheblockadeofCrimeain2015–16(see
below),butsimultaneouslytookpains toproclaimthat“We are in
supportofCrimeabeingUkrainian,andnotTatar.Wearenotthere
tosupporttheTatars.”74
RefatChubarovhasaccusedRussiaofpromotingradicalsfrom
theinternationalpanIslamicorganizationHizbutTahrir“toshow
the world ‘bad’ Crimean Tatars,” 75 but has also expressed some
solidaritywitharrestedmembersofthatorganization.76Statements
of this kind are only likely to inflame the radical Azov type of
Ukrainiannationalism.
“Rootedness”
The great paradox ofcontemporaryCrimean Tatar nationalism is
thatitskeyprincipleshavemovedtotheforefrontofpublicdebate
precisely at a timewhen the Crimean Tatars have lost control of
theirhomeland.ThecentraltenetofCrimeanTatarnationalismis
thattheCrimeanTatarsare“rooted”inCrimea.77TheRussianword
forthisiskorennoi(“rooted”);theUkrainianiskorinnyi.InEnglish
onemightsay“indigenous,”or“autochthonous,”butthebotanical
associationbuiltintotheSlavictermsissignificant,suggestingasit
doesaclaimtoanorganiclinkagebetweenterritoryandethnicity.
Accordingtothisconceptofindigeneity,ethnicandnationalgroups
72 StepanBanderawastheleaderofthemoreradicalbranchoftheOUN.
73 Olszaski,“Ukraine’sWartimeNationalism,”1.
74 Halya Coynash, “Ukraine’s Police Must Not Collaborate with Azov
Xenophobes,”HumanRightsinUkraine,3February2016,http://khpg.org/en/in
dex.php?id=1454456536.
75 “Rosiianamahaet’siapokazatysvitu‘pohanykh’kryms’kykhtatar—Chubarov,”
Hromads’keTV,27January2017,http://hromadske.ua/posts/rosiianamahaiet
siapokazatysvitupohanykhkrymskykhtatar.
76 “UKrymushche2krymsk’ykh tatarzvynuvatylyu prychetnostido ‘Khizbut
Takhrir,’”Ukrains’kaPravda,18April2016,www.prav0da.com.ua/news/2016/04
/18/7105912/.
77 NataliyaBelitser,Kryms’kitataryyakkorinnyinarod:istoriiapytanniaisuchasni
realii(Kyiv:MinistryofInformationPolicy,2016),http://mip.gov.ua/files/pdf/
blicer_pro_krimtat.pdf.
22ANDREWWILSON
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mayoftenmoveorresettle,buttheyare“rooted”inagiventerritory
iftheirdevelopmentasaculturalgrouptookplacethere.
TheCrimeanTatarsacceptthattheKrymchaksandKaraim
are also korennye toCrimea.Bothgroups areJewish,butspeaka
languageclosetoCrimeanTatar.TheKrymchakswriteinHebrew
characters,andtheKaraimlanguageisHebrewinfluenced.Likethe
CrimeanTatars,bothgroupsclaimtopredatetheMongolincursion
ofthethirteenthcenturyandaredefactoanagglomerationofmany
localethnicities.Butneithergrouphadtheirownstatetorivalthe
CrimeanTatarclaimonCrimea,andbothareinanycasesmallin
number.In1897therewere3,300Krymchaksand5,400Karaim(the
Karaim were then a privileged merchant class, officially
distinguished from both Ashkenazi and Krymchak Jews), but the
2001Ukrainiancensuscountedonly280Krymchaksand715Karaim
(the2014exercisebytheRussianoccupyingauthoritiesrecorded228
and535).78
TheCrimeanTatarKhanatewasadynasticstate.Theideaof
ethnic “rootedness” developed in the late nineteenth and early
twentiethcentury,afterCrimeawasannexedbytheRussianEmpire
in1783,althoughpanTurkismoverlappedwiththeYoung Tatars’
(Genc Tatarlari) idea of “island Crimea” as a natural homeland,
propagated by intellectuals like Üsein Abdurefiolu Bodaninsky
(1877–1938),OsmanNuriAsanoluAqçoqraqli(1878–1938),Noman
Çelebicihan (1881–1918), and Cafer SeydametQrmer(1889–1960).
ÇelebicihaninparticularisanimportantsymbolofmodernCrimean
Tatar identity: he helped found the political parties Vatan
(“Fatherland”) and the original Milli Firka (“National Party”—see
below),servedasbothPresidentandMuftioftheCrimeanPeople’s
Republicin1917,79wrotethenationalanthem,andwasmurderedby
78 See http://2001.ukrcensus.gov.ua/eng/results/general/nationality/ for the
Ukrainian census. For the disputed Russian version, see “Tablitsy s itogami
Federal’nogo statisticheskogo nabliudeniia ‘Perepis’ naseleniia v Krymskom
federal’nom okruge’” (sic), Federal’naia sluzhba gosudarstvennoi statistiki
website, www.gks.ru/free_doc/new_site/population/demo/perepis_krim/tab
krim.htm.
79 AQurultay(“assembly”)of76delegateswaselectedbyuniversalCrimeanTatar
suffrage on 17 November 1917. The 1991 Qurultay was therefore dubbed the
THECRIMEANTATARQUESTION23
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theBolsheviksin1918.Çelebicihanestablishedgoodrelationswith
theUkrainianPeople’sRepublicinKyiv,andisusedasasymbolof
theCrimeanTatars’alignmentwithUkrainetoday,eventhoughin
reallifehewasalsoinclinedtowardsnegotiatingwithBolsheviksin
1917–18(whichdidn’tstopthemassassinatinghim).
Paradoxically,panTurkismwasonlydefinitivelyreplacedby
theideaofaseparateCrimeanTatarnationunderSovietrule.80As
throughout the USSR, the promotion of “ethnogenesis”—the
affirmationofasancientahistoryaspossibleforthetitularpeoples
of the Soviet republics81—was part of the official ideology of the
national communist period of the 1920s.The officialname of the
policywaskorenizatsiia(“puttingdownroots”).Thehomogenizing
effectsofSovietrule,especiallythecreationof“acommonCrimean
Tatar grammar and language based on the central mountain
dialect,” 82 helped smooth over what were still then substantial
differences between three main ethnic subgroups: the coastal
Yaliboyu,mountainTatsandsteppeNogai.Arguably,thisprocess
wasremainedincompleteuntilthecommontraumaofDeportation
and enforced exile after 1944.83 This idea of homeland was also
ironicallyreinforcedbytheSovietauthorities’reluctancetoeasethe
conditionsofexile,ortocreatestableconditionsfortheCrimean
TatarsinCentralAsia,andbythelongcampaigntoreturntothe
homeland that began in the 1960s. 84 The political aim and the
organizationarounditbecameadefiningfeatureofCrimeanTatar
“second.” Afterthe Bolshevik seizure ofpower,theQurultay proclaimed the
CrimeanPeople’sRepublic,whichlasteduntiltheBolshevikstookoverCrimea
inJanuary1918.
80 Brian Glyn Williams, The Crimean Tatars: From Soviet Genocide to Putin’s
Conquest (London: Hurst andCompany, 2015), 59–60;Magocsi, This Blessed
Land,98–99.
81 TheCrimeanASSRcreatedin1921wasnamedafterthepeninsula,notafterany
ethnicgroup;butsomecommentatorshavearguedthatethnicrightswerejust
asimportantasinDagestanorNakhichevan;Williams,CrimeanTatars,59–60.
82 Williams,CrimeanTatars,75.
83 Ibid., 150; and Ye. S.Kul’pin, Krymskie tatary ivyzovyXXI veka (Simferopol:
ARIAL, 2014), especially 45–58, “Transformatsiia krymskotatarskogo etnosa
(1944–1996).”
84 BrianGlynWilliams,“TheCrimeanTatarExileinCentralAsia:ACaseStudyin
GroupDestructionandSurvival,”CentralAsianSurvey17,no.2(1998):285–317.
24ANDREWWILSON
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identity in itself, helping to explain the tenacity of resistance to
Russianannexationafter2014.
The central reference point for modern Crimean Tatar
nationalismistheDeclarationofNationalSovereigntypassedbythe
Qurultayin1991,whichdeclaresthat“Crimeaisthenationalterritorial
autonomyoftheCrimeanTatarpeople,onwhichtheyalonepossess
the right to selfdetermination.” 85 According to Chubarov, “Our
principles, our demands are that the Crimean Tatars in all
circumstancesmustliveontheirownland.IknowthattheKaraites,
andKrymchaksfollowexactlythesameopinion.”86
TheideaofMongoloriginisrejected,becauseitisusefulto
Russian nationalists. If the Crimean Tatars only arrived in the
thirteenthcentury,thenthatallowsRussiatoclaimprecedenceand
preeminence fromwhatwas in reality a patchy pattern of Slavic
settlementbeforethen.87OneRussianHistoryofCrimearushedout
in2015,compressesthehistoryoftheCrimeanTatarKhanateinto
onlyoneofthirteenchapters,afterlongsectionsdepictingCrimea
as the “northern outpost of the Byzantine empire” and before
discussingtheImperialandSovieteras.88
IntheMejlisversionofCrimeanTataridentity,CrimeanTatar
historyismucholder.TheMongolinfluencewasonlyaddedonto
that of other native elements. Crimean Tatar identity is itself
“civilizational,”amixtureofethnictraditions,whichwereallowed
tomingleinaspiritoftoleration.Thisviewisbestexpressedinthe
massivefourvolumeHistoryoftheCrimeanTatars:Sketchesofan
EthnicHistoryoftheRootedPopulationofCrimea,publishedin2013
85 Andrew Wilson, “Politics in and Around Crimea,” inEdwardAllworth (ed.),
TatarsoftheCrimea:ReturntotheHomeland(Durham,NC:DukeUniversity
Press,1998),281–322.
86 “KrymskieTatarydolzhny zhit’na svoieizemle—Chubarov,”Ukrinform.ru,9
August 2016, www.ukrinform.ru/rubriccommunity/2064227krymskietatary
dolznyzitnasvoejzemlecubarov.html. See also Chubarov’s remarks at a
launchofVozgrin’sbookIstoriiakrymskikhtatarinSimferopol’on14August
2013,atwww.youtube.com/watch?v=GR8N76RMn04.
87 “Krymskie tatary: mify i real’nost’,” Istoricheskaia pravda, 7 March 2014,
www.istpravda.ru/research/8156/.
88 S. Z. Kodzova (chief editor), Istoriia Kryma (Moscow: Russian Military
Historical Library, 2015). See also Kirill Kochegarov, Krym v istorii Rossii
(Moscow:Russkoeslovo,2014).
THECRIMEANTATARQUESTION25
JSPPS3:2(2017)
byValeriiVozgrin,whoisRussianbutanativeofSimferopol.His
magnumopuswasendorsedbytheMejlis,89afterwhichhelosthis
jobinRussia.AccordingtoVozgrin,“CrimeanTatarethnoculture”
was itself an agglomeration of four cultures: “the Mediterranean
(Christian),Islamic(Moorish),Steppe(predominantlyTurkish)and
GermanScandinavian(Goth).”90Accordingtoanotherauthor,
manywavesofhumanitycametotheCrimea—theScythians,theGoths,the
Genoese,theTatarMongols...buttheCrimeanTatarsnevercamehere[i.e.
theyhavealwayslivedhere]…ThenationofCrimeanTatarsemergedand
formed itself in the Crimea as a result of longterm, comprehensive and
mutualassimilationofresiduesoftheoriginalinhabitantsofCrimea:Tauri,91
CimmerianswiththeSarmatians,Scythians,Pechenegs,Polovtsians,Goths,
Genoans, Greeks and other newcomer peoples.From this complex
“conglomerate”anewethnicunitemerged—theCrimeanTatarpeople,with
itsdistinctivenationalculture,language,religion,traditions,customsanda
clear identity,nationaleconomy,market, territory, statehood,and capital
cities.92
Despite annexation and repression since 2014, this idea of
rootedness is still strong, expressed in the slogan QirimMillet
Vatan (“CrimeaNationHomeland”). One influential Facebook
postbyNarimanDzhelial,thedeputychairoftheMejlis,criticized
the older generation’s idea that itwasenough just to “live inour
homeland”—unity and action were what mattered, he insisted.93
But he still argued that Crimean Tatars should stay in Crimea,
89 “‘HistoryofCrimeanTatars’byVozgrinPresentedinCrimea,”QHA,15August
2013, http://qha.com.ua/en/society/historyofcrimeantatarsbyvozgrinpres
entedincrimea/129253/.
90 Vozgrin,Istoriiakrymskikhtatar,vol.1,351–52.
91 The Tauri, mentioned by Herodotus, gave their name to the Russian terms
TavridaorTaurida.Theiroriginsareobscure—differenttheorieshavethemas
remnantsoftheScythians,Cimmerians,orrelatedtotheAbkhaz.
92 Yurii Osmanov, Pochemu Krym—istoricheskaia rodina krymskotatarskogo
naroda?(Simferopol:Biznesinform/NDKT,2012version),8and9.Osmanov
headedthesupposedlymore“moderate”NDKTpartyinthe1990s(seebelow).
93 PostbyNarimanDzhelial,13May2016,https://mobile.facebook.com/15minut.
kiev/posts/480626958789511?__mref=message_bubble&_rdr.
26ANDREWWILSON
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despite all the persecutions.94 Another article on Crimean Tatar
identity in 2016 emphasized patriotism, tolerance, nonviolence,
and the role of education as “almost a cult.”95 According to the
sociologist Ol’ga Dukhnich, there are three components in the
“ensemble… of Crimean Tatar identity,” namely: “cultural identity
basedontradition…politicalidentitylinkedtopoliticalambitions…
[and]religiousidentity.”Dukhnichalsoagreedthat,“Anotherfeature
thatwehaveseenmainlyinyoungpeopleistheidentityofacitizen
of Ukraine.” 96 The Crimean political scientist Lenora Diul’berova
added that generations of protest movement and consequent
traditions of “political communication” and “political subjectivity”
werealsopartofCrimeanTataridentity.97TheCrimeanTatarshad
beenappealingtotheinternationalcommunityforfiftyyears:they
were used to couching such appeals in the universal language of
humanrights,ratherthantheculturalframingofummah.
ThereligiouscomponentofCrimeanTatarnationalismmay
nowberevivingafterdecliningintheyearsofSovietexile.But,like
the “new Ukraine,” albeit to a lesser degree, the Crimean Tatars
themselvesarealsoanewcivicnation.Whatmattersisnot“ethnic
purity,”butcommitmenttothecause.Notallofthosewhojoined
the Crimean Tatar battalions fighting in the east or blockading
Crimea (see below) wereCrimean Tatar. There issome flexibility
when it comes to defining ethnicity—Jamala, winner of the
EurovisionSongContestandwidelyrecognizedasCrimeanTatar,
was born in Osh, Kyrgyzstan to a Crimean Tatar father and an
Armenian mother. In general, many Crimean Tatar communities
havea long history of interminglingwith other groups, including
AzovGreeks.
94 “Nariman Dzhelial: Krymskie tatary dolzhny ostavat’sia v Krymu,” QHA, 5
January 2016, http://qha.com.ua/ru/obschestvo/narimandjelyalkrimskie
tataridoljniostavatsyavkrimu/153351/.
95 “Krymskie Tatary. Who We Are?” Ukrains’ka Pravda, 16 May 2016,
www.pravda.com.ua/rus/columns/2016/05/26/7109808/.
96 CitedinMustafaChaush,“Identichnost’krymskikhtatarposleanneksiiKryma:
zashchitnaia reaktsiia i otsutstvie dialoga,” Krym.Realii, 13 November 2014,
http://ru.krymr.com/a/26689906.html.
97 Chaush,“Identichnost’krymskikhtatar.”
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The alternative possibility would be the emergence of a
radical and fundamentalist strain within Crimean Tatar Islam.
Before 2014, ironically, that possibility was constrained by the
hegemonic position of the Muftiate; since 2014, its control over
CrimeanTatarreligiouslifehasweakened.Manyradicalsleftinthe
firstwaveofexilesin2014;anditishardtotellhowmuchofthe
local“extremist”threatisrealoraFSBinvention.ButiftheCrimean
Tatarsremainalienatedandunintegrated,thepossibilitywillgrow
overtime.
Tatarism
The Mejlis strongly rejects “Tatarism”—the ideology positing the
existenceofapanTataridentitysharedbyKazanTatars,Crimean
Tatars,andBashkirs.From1944to1989theadjective“Crimean”was
not used administratively—according to Soviet ideologues, the
exiledCrimeanTatardiasporawassimplypartofthebroaderTatar
nationbasedinKazan.98ButMejlissupportershavedismissedthe
veryterm“Tatar”asa“mythologicalethnonym.”99Theyargue,for
example, that, “In fact the actual words ‘TatarMongol,’ [hardly
appear]intheCrimeanTatarlanguage,fourtofivetimeslessthan
inRussian”;100andthat,“TheCrimeanTatarsarenotthesameasthe
‘MongolTatars.’DerivingtheCrimeanTatarsfromanyother‘Tatars’
only on the basis of the consonance of ethnonyms is totally
unscientific; the term ‘Tatar’ has too many completely different
meanings.”101Consequently,therehasbeenalongrunningcampaign
to drop the term “Tatar” altogether and leapfrog to the more
straightforwardethnonymof“Crimean,”QirimliorKirimli—thelatter
beingthetitleofafilmonCrimeanTatarhistorymadebyBurakArliel
in2014.
98 R. Bukharaev, “Kazanskie i krymskie tatary: odna natsiia—dva naroda?”
LiveJournal,21November2008,http://ulr.livejournal.com/91930.html.
99 “Mificheskiietnonim‘Tatary,’”Avdet,7April2014.
100 Osmanov,PochemuKrym—istoricheskaiarodinakrymskotatarskogonaroda?
101 SergeiGromenko,“Krymskietatary—eto‘mongolotatary’?Mifirazvenchanie,”
Krym.Realii,1August2016,http://ru.krymr.com/a/27891416.html.
28ANDREWWILSON
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Therejectionof“Tatar”identityandresistancetotheuseof
“Tatarism”asameansofpullingtheRussianversionofEurasianism
moretowardsAsialeadstotheemphaticclaimthatthe“Crimean
TatarsareaEuropeanpeople”(aclaimmadeeasierbythesimilar
stance of the Kemalist tradition in Turkey). Thus, for example,
Dzhemilevhasarguedthat,“ManyEuropeanpeoplestookpartin
theethnogenesisoftheCrimeanTatars.Thisdidn’thappenwithout
TurkictribesandMongols.Butinappearanceonlytenpercentof
CrimeanTatarsareMongol.”102TheideaofaEuropeanidentityalso
hasitsrootsinthelonghistoryoftheCrimeanTatarmovement’s
appeals to international organizations.103 Official Mejlis policy is
therefore (perhaps surprisingly) unequivocal. According to
Dzhemilev, “we support Ukraine’s integration into the EU and
NATO.”104
InRussianhistoriography,theCrimeanTatarKhanateisoften
depictedaslittlemorethanaslavetradingenterprise,orasanempty
vessel, a channel for panIslamic or panTurkish Ottoman
Russophobia.IntheHistoryofCrimeapublishedinMoscowin2015it
isbaldlystatedthat“theflourishingofthepeninsula[only]beganafter
thereturn[sic]oftheRussianpopulation”after1783.105Accordingto
Vozgrin,however,theKhanatewasbothasubstantialcivilizationin
its own right, and a second alAndalus, home to a “Proto
Renaissance” from the fourteenth century, with a tolerant, open
society.TheKhanateallowedtheflourishingofhistoricalChristian
communities(mainlyArmenianandGreek)andofthetwovarieties
of local Judaism. “The humanism of Islam in contrast to the
European[version],”Vozgrinargues,“wasuniversal.”106
102 “Krymskietatary—yevropeiskiinarod,”Avdet,10November2015,http://avdet.o
rg/ru/2014/11/10/krymskietataryevropejskijnarod/.
103 Gul’naraBekirova(ed.),MustafaDzhemilev:“Naprotiazheniidesiatiletiigolos
krymskikhtatarnebyluslyshan…”:Materialykbiografii,vystupleniia,interv’iu
(Kyiv:Stilos,2014).
104 Author’sinterviewwithDzhemilev,17January2010.
105 Kodzova(ed.),IstoriiaKryma,4.
106 Vozgrin,Istoriiakrymskikhtatar,vol.1,336and361.Sectionfouriscalled“The
ProtoRenaissance in Crimea.” See also Gul’nara Abdulaeva, Bitvy iz istorii
KhrymskogoKhantsva.Ocherki(Simferopol:Krymuchpedgiz,2013).
THECRIMEANTATARQUESTION29
JSPPS3:2(2017)
TheCrimeanTatars,theEuromaidan,War,andBlockade
TheCrimeanTatars’strongsupportforUkrainianstatehoodandfor
aEuropeanUkrainemadethemearlysupportersoftheEuromaidan
protests. Official participationwas organizedbyAkhtem Chiigoz,
deputychairoftheMejlis.Thefirstbigtriptobringsupportersfrom
Crimeacameasearlyastheweekbeginning26November2013.107
But many other Crimean Tatars made their own way, especially
students from Kyiv, L’viv, and Kharkiv, helped by the localNGO
“Crimean Fraternity in Kyiv” run by two Crimean Tatar
businessmen, the Umerov brothers Rustem and Aslan. By the
beginningofDecember2013morethanahundredwerepresenton
theMaidan.108ACrimeanTatar“hundred”wasformed in January
2014. Its leader Isa Akaev showed some sympathy for Right
Sector,109withsporadiccontactsbetweenCrimeanTatarsandright
wing activists developing at this time. And in Crimea, as even
Temirgalievadmitted,atthecrucialmomentjustbeforethecoup,
andeventhoughhehadusedPartyofRegions’moneytoassemble
acrowd,“our supportersnumbered a little lessthan those of the
Mejlis—somewherelike60to40infavoroftheMejlis.”110Hencethe
needforbogusdemonstratorsbroughtinfromRussiatoswaythe
balance.111
When the war in east Ukraine began later in 2014, this
organizationalbaseledtotheparticipationofmanyCrimeanTatars
asbothfrontlinefightersandactivists.InNovember2014,Mustafa
Dzhemilevclaimed450CrimeanTatarsweretakingpartintotal.112
A“Crimea”patrolunitwasformedasearlyasJune2014.In2016the
107 IdilP.Izmirli,“CrimeanTatarsSupportEuroMaidanProtestsinKyiv,”Eurasia
DailyMonitor 10,no. 219,6December 2013,https://jamestown.org/program/
crimeantatarssupporteuromaidanprotestsinkyiv/.
108 “Sotni kryms’kykh tatar vyrushyly na Maidan—predstavnyky Medzhlisu,”
RFE/RL,21January2014,www.radiosvoboda.org/a/25237628.html.
109 SeeIsaAkaevonFacebook,www.facebook.com/isa.akaev.3?ref=br_rs.
110 “RustamTemirgalievorazvitiisobytii.”
111 Kanev,“Spetsturisty.”
112 “Mustafa Dzhemilev: okolo 450 krymskikh tatar uchastvuiut v anti
terroristicheskoi operatsii,”Krym.Realii,24November 2014, http://ru.krymr.
com/a/26708362.html.
30ANDREWWILSON
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formationofaNomanÇelebicihanBattalion,namedaftertheheroof
1918, was announced. It aimed to have 560 members, but initially
claimed250to300.113TheblockadeofCrimeathatbeganinSeptember
2015 was led by another paramilitary group dubbed Asker
(“Soldier”),organizedbytheformerbusinessmanLenurIsliamov,114
inpartnershipwithUkrainiannationalistgroups.Theblockadehad
a notable impact on the peninsula’s electricity, food, and water
supplies.115 It was lifted in January 2016 after the government of
Ukraineimposeditsownrestrictions.
CrimeanTatarEurasians
TheQurultay/MejlisclaimstobeaCrimeanTatarparliament.Itwas
lastelectedin2013,whentheruleswerechangedtoallowforgreater
competitionwithintheelectoralprocess.ButtheMejlishasalways
hadexternalopponentsaswellasinternalrivalries,andcriticsofits
alliance with Kyiv and support for a European Ukraine. The 1991
QurultaywasorganizedbytheOKND(OrganizationoftheCrimean
Tatar National Movement), after a split with the rival NDKT
(NationalMovement of theCrimeanTatars)—largelybecause the
latteropposedtheformer’sorganizationalradicalism,i.e.theclaim
thattheMejliswasadefactoparliament.TheNDKTwasledfirstby
Yurii Osmanov and then by Vasvi Abduraimov after Osmanov’s
death in 1993. Bothmen were prone to using key tropes of early
1990s Eurasianism: Abduraimov condemned the “antiSlavic and
panTurkic policy” of theOKND and argued that “in Crimea the
SlavoTurks(CrimeanTatars,RussiansandUkrainians)haveareal
possibility to createand perfectamicromodel fora SlavoTurkic
113 VladimirGolovko,OkupatsiiaKryma.“Russkiimir”protivUkrainy(Kyiv:COOP
Media,2016),104–5;and“IntheCrimeanTatarbattalionofthenationalguard
havejoined250people.Allwillbeupto580—islyamov,”NewsfromUkraine,
18January 2016, http://en.reporterua.ru/inthecrimeantatarbattalionofth
enationalguardhavejoined250peopleallwillbeupto580islyamov.html.
114 See the interview with Isliamov by Svitlana Kriukova and Sevhil’ Musayeva
Borovyk, “Lehenda promore. Odyn den’ na kordoni z Krymon,” Ukrains’ka
Pravda,26February2016,www.pravda.com.ua/articles/2016/02/26/7100363/.
115 AndrewWilson,“NoStabilityunderOccupationinCrimea,”ECFR,18March2016,
www.ecfr.eu/article/commentary_crimea_no_stability_under_occupation604.
THECRIMEANTATARQUESTION31
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‘superunion.’”116Heeven sentanopen letter to Russian leaders in
2008 asking for their protection from the “nationalistleaning
officialauthoritiesinUkraine.”117
In oneoff Crimean elections in 1994, when the Crimean
Tatars briefly had an ethnic quota of fourteen seats, the
Qurultay/Mejlisranandwonthevote(despitepresentingitselfasa
parliament),with89.3%ofthevoteagainst5.5%fortheNDKT.The
NDKTfadedawaythereafter,withAbduraimovshiftingattentionto
anewparty,MilliFirka(takingthenameoftheoriginal“National
Party” in 1917),whichwas officially registered in 2007.Unlikethe
“nationalist” Mejlis, Milli Firka emphasized “integration of the
Crimean Tatar people with the Turkic world on the basis of the
Islamicworldview,”andEurasianistcooperationwith“theheadsof
the Turkic states and the heads of the Turkic Republics of the
RussianFederation.”118
Yanukovych’sDivideandRulePolicy
TheorganizationalstrengthandleadingpositionoftheMejliswas
alreadyunderchallengebefore2014.MilliFirkaandotherloyalist
Crimean Tatar groups were actively promoted by the authorities
duringtheYanukovychyears,especiallyin2011–13.Thiswasdonein
an attemptto splitand/or discreditthe Mejlis;theaimto“divide
andrule”waswhatmatteredmosthere,andsolessattentionwas
paid to the ideological dimension. The extent to which the
Ukrainian authorities’ efforts on this front may have overlapped
withtheRussians’ishardtoassess:thedivideandruleoperation
wasrunbyalocalpoliticaltechnologist,AndriiYermolaev,onbehalf
116 VasviAbduraimov,“Geopoliticheskieaspektykrymskogouzla,”Areket,no.3,
28February1994;interviewinVseukrainskievedomosti,22June1995;Wilson,
“PoliticsinandAroundCrimea,”281–22,at284;andS.M.Chervonnaia(ed.),
Krymskotatarskoenatsional’noedvizhenie,vol.4(Moscow:RussianAcademy
ofSciences,1997),104–09.
117 Halya Coynash, “The Crimea’s Interests Not Represented,”Human Rights in
Ukraine,15September2008,http://khpg.org/en/index.php?id=1221486403.
118 “StrategiiaitaktikaMilliFirkanasovremennometape(2009–2011gg.),”Milli
firka.org,16May2009,www.millifirka.org/content/BFEA/title//.
32ANDREWWILSON
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of Serhii L’ovochkin, Yanukovych’s Chief of Staff until January
2014.119
In2012anew“CrimeanTatarNationalFront”waslaunched
withtheauthorities’covertsupport,ledbyalongtermMejliscritic
Lentun Bezaziiev,120and including Abduraimov’s Milli Firka. The
FrontleanttowardspanTatarism,includinglocalrepresentativesof
otherTatarandBashkirgroups,declaringthat“theCrimeanTatars,
KazanTatars,andBashkirsarefraternalpeoples,whosehistorical
fatehasforcenturiesbeenintertwined.”121
Another “cloning” operation was run against the civic
movement Avdet (“Return”), which had campaigned against
Crimean Tatar homelessness since 2005. Its welldrilled activists
wereseenasathreatbytheYanukovychauthorities—andanasset
to be taken over. Avdet split in May 2011 and its offshoot Sebat
(“Steadfast”)was henceforth controlledby the Party of Regions—
featuringprominentlyinlocal“antiMaidan”demonstrationsinthe
winterof2013–14.122
Yanukovychalsoreformattedthe“CouncilofRepresentatives
oftheCrimeanTatarPeople”thatPresidentKuchmahadsetupin
1999. In two purges in 2011 and 2013 Yanukovych removed
Dzhemilev as chair and replaced him with Bezaziiev and
Abduraimov,aswellasreplacingtheoldcompositionof33members
oftheMejliswithonlyeightfromtheMejlisand11fromtheloyal
opposition.Notsurprisingly,thisledtoaboycottbytheMejlis.123
119 Author’sinterviewwithYuliiaTyshchenko,13June2016.
120 AnvarDerkach,“ANewCrimeanFront,”TheUkrainianWeek,7March2012,
http://ukrainianweek.com/Politics/52392. Lentun Bezaziiev had been both a
CommunistandaTymoshenkoMP,andendedupinthePartyofRegions.
121 “KazanskietataryibashkiryKrymatozhevoshlivKrymskotatarskiinarodnyi
front,” Novoross.info, 2 February 2012, www.novoross.info/politiks/11105
kazanskietataryibashkirykrymatozhevoshlivkrymskotatarskiynarodny
yfront.html.
122 “Krymskietatary:‘Myne“titushki”,atozheukrainskiinarod,’”Segodnia.ua,18
December 2013, www.segodnya.ua/regions/krym/krymskietatarymynetitus
hkiatozheukrainskiynarod483773.html. See also the article in the Mejlis
paper Avdet, “Kto oni—mogilevskie tatary?” Avdet, 24 June 2013,
http://avdet.org/ru/2013/06/24/ktoonimogilevskietatary/.
123 Andrew Wilson, “The Crimean Tatars: A Quarter of a Century after Their
Return,”SecurityandHumanRights24,no.3–4(2013):418–31.
THECRIMEANTATARQUESTION33
JSPPS3:2(2017)
Theloyalistgroupwereknownasthe“MogilevTatars”(after
AnatoliiMogilev,whocontrolledCrimeaforYanukovychfrom2011
to2014),orthe“kazanskie”becausetheywerealwayssayingthatlife
forMuslimswasbetterinRussianKazan.ItdidnothelpthatMejlis
supporterscalledtheirrivals“CrimeanTatarvatniki”or“mankurts”
(derogatorytermsforredneckSovietchauvinistsandtraitorstothe
nationalcause,respectively).124
The conflict reached a peak during the elections to the
Qurultayin2013.MustafaDzhemliev’splanstobereplacedbyhis
longterm deputy Refat Chubarov were almost stymied by the
internalopposition.Chubarovonlysqueakedhomeby126votesto
114 against his rivalRemzi Iliasov,who represented both genuine
dissenters and those promoted by the Yanukovych authorities.125
Chubarovdidlittletobuildbridgesafterhisvictory;andsopotential
splitswerealreadypresentintheCrimeanTatarmovementonthe
eveoftheEuromaidanprotests.
RussianEurasianismandtheCrimeanTatars
RussianideologueswhopushedtheannexationofCrimeahavealso
pushedthisCrimeanTatarversionofEurasianism.Accordingtothe
supporters of Aleksandr Dugin and Lev Gumilev, “the Crimean
Tatars are a Turkic ethnicgroup thatcan feel comfortable in the
bosom of Eurasianism.” In typically florid language, they have
arguedthattheCrimeanTatarsarepartof“thepoliticalmergerof
the Forest and the Steppe,” the “duumvirate” of “Russians and
FinnoUgric”peopleswith“VolgaTatars,Bashkirs.”“Themountains
donotplayasignificantrole inthe life oftheCrimean Tatars,as
opposedtotheCaucasians,”soculturalsynthesisissupposedlyall
theeasier.“TheframesofEurasianismaresobroadthattheyfitthe
Buddhist culture of the Kalmyks and the Islamic culture of the
CrimeanTatars.”126
124 Andrei Zaremba, “Prizyv krymskikh mankurtov,” Krym. Realii, 4 November
2015,http://ru.krymr.com/a/27344659.html.
125 Wilson,“CrimeanTatars,”427.
126 VladislavGulevich,“Krymskie tatary i yevraziistvo,”Geopolitica.Ru,8August
2012;availableathttp://vgulevich.livejournal.com/16668.html.
34ANDREWWILSON
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The embrace of this version of Eurasianism will lead to a
happyfuturefortheCrimeanTatarsinCrimea.“Theacceptanceof
Eurasianism by the Crimean Tatars is not impossible because of
someethnicparticularities,”astheMejliswouldargue,“(thereare
evenEurasiansinfarfromRussophilePoland),butbecauseofthe
antiCrimeanTataractivityoftheCrimeanTatarMejlis,deliberately
leading its people into conflict with the Slavic population of the
peninsula.”127
The Russian version of Eurasianism also contains a view of
history diametricallyopposed to the idea of a European Crimean
Tatar identity, allied to the Ukrainian identity. According to the
Gumilev Center (gumilevcenter.ru), a thinktank devoted to
promotingtheideasoftheEurasianistthinkerLevGumilev(1912–
92),afataldivergenceoccurred“backinthe13thcentury,intheera
ofthedepartingGoldenHordeandthedivisionofUkrainebetween
West and the East.” “The Prince of Galicia Western Ukraine
Danylo,unlikeother[Rus]principalitiesledbyAleksandrNevskii,
defected to the West, took the crown from the hands of the
Pope.Latertherewasadivisiononculturalandreligiousgrounds:
inwesternUkrainemanyprofessGreekCatholicismandrecognize
the supremacy of the Pope.” In the Russian north, however,
“Aleksandr Nevskiimadean alliance with the Tatars,became the
adopted son of Batu, preserved the Orthodox faith and Russian
culture, which later allowed the creation of a great Russia.”
Therefore,“theGoldenHordeisnotatabooforRussianTatars,itis
part of the history of not only the Tatars, but also the history of
RussiaandEurasia,averyimportantpart…TheEurasianapproach
allowstheTatarstobeanimportantandinfluentialforceinRussia
andEurasia,whichservesasacommonhome.”128
PavelZarifullin,headoftheGumilevCenter,hasmoreradical
ideasofcommonorigin,asexpressedinhisbookTheNewScythians
127 Gulevich,“Krymskietatary.”
128 Iskander Akhmedov, “Most ‘TatarstanKrym’: chto zhdet krymskikh tatar v
Yevrope, initsiativy Tatarstana, novye realii Kryma i pochemu ruku Moskvy
nuzhnopozhat’,”GumilevCenter,5March2014,www.gumilevcenter.ru/most
tatarstankrymchtozhdetkrymskikhtatarvevropeiniciativytatarstanano
vyerealiikrymaipochemurukumoskvynuzhnopozhat/.
THECRIMEANTATARQUESTION35
JSPPS3:2(2017)
(newskif.su),callingforRussianCrimeanTatarUnionasthebasis
foranewinvigoratedEurasianism.InaspeechtoMilliFirkaseveral
weeksbeforetheannexationinJanuary2014,hedeclaredthat
Crimeahasaspecialrole.Thepeninsulahasasacredvalueasthelaboratory
oftheFriendshipofthePeoples.Formedovermanygenerations...Crimea
wastheendofthelastScythiankingdomandthebeginningofothers...The
Russians, Ukrainians, Tatars,andKazakhs all trace their originsfrom the
Scythians...TheCrimeanTatarpeoplearebydefaultEurasian...Crimeaisthe
startingpointofanyproject,andwillbecomeaminiatureofEurasia.129
VolgaTatarEurasianism
Meetingsand discussions between the Volga TatarsandCrimean
Tatars were encouraged by the Kremlin in 2014, but only led to
polemiconboth sides.130TheVolgaTatar sidepushedthe idea of
panTatarism,andattackedCrimeanTatar“separatism.”According
tooneTataractivistIskanderAkhmedov,
SomerepresentativesofCrimeanTatarorganizations,aftermeetingswith
thedelegationsoftheRepublicofTatarstan,gaveinterviewstotherightand
totheleft,inwhichtheyactuallybegantorefutethekinshipoftheTatars
andtheCrimeanTatars.Furthermore,theystatedthatthelanguageofthe
Turkmenpeople,theGagauz,Azerbaijanis,TurksisclosertotheCrimean
TatarthanTatar,althoughtheTatarandCrimeanTatarlanguagebelongsto
thesamesubgroup—Kipchak,andisveryfarfromthosementionedabove.
TatarsandCrimeanTatarsunderstandeachotherwithoutproblems.131
AmongsomeCrimeanTatarsthereisaquitecommondesiretogetridofthe
proud name “Tatars” in the name of the people.They begin to call
themselvesjust“Crimeans.”SomebelievetheirancestorsaresomeTavrians
Scythians,Italians,“protopeople,”whileignoringthehuge,decisiveroleof
ancientTatarsandTurksintheirethnogenesis.Butthedesiretoprovehis
indigenousnessshouldnotturnintotheabsurdandthedenialofthenearest
relatives.Suchshamefulattemptstoescapefromtheirhistory,origin,and
129 “Russkokrymsko tatarskii soiuz,” Gumilev Center, 30 January 2014,
www.gumilevcenter.ru/russkokrymskotatarskijjsoyuz/.
130 SeealsoVictorShnirel’man,“UsefulEurasianism,orHowtheEurasianIdeais
ViewedfromTatarstan,”inMarkBassinandGonzaloPozo(eds.),ThePolitics
ofEurasianism:Identity,PopularCultureandRussia’sForeignPolicy(NewYork
andLondon:RowmanandLittlefield,2017),223–42.
131 Akhmedov,“Most‘TatarstanKrym.’”
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kinshiparereminiscentofourhomegrownTatarstanBulgarists[whoclaim
thattheVolga“Tatars”arenotTatarsatall,butthedescendantsoftheVolga
Bulgars].
SomeCrimean Tatarsdream of Europe.But it is necessary to look at the
rightsofMuslimsinEurope.Itisnecessarytolookatthesituationwiththe
expectation of Turkey to become a fullmember of theEU ... It is worth
remembering, for example, the decision of the people of Switzerland,
adoptedinareferendum,tobantheconstructionofminarets.Thinkofthe
fragmented,mixedfederationofBosnianMuslims.132
Kazan historians were writing an alternative history of the
CrimeanTatarpeople,basedontheclaimthat,accordingtoKazan
TatarhistorianMaratGibatdinov,“theCrimeanTatarshavealways
been part of the big family of the Tatar nation.”133The Mufti of
Moscow and Chuvashia, Albirhazrat Krganov, has lectured on
“VolgaTatarsandCrimeanTatars:CommonHistoricalDestinies.”134
ButthemainideologueofVolgaTatarnationalismisthehistorian
Rafael Khakimov, who was also the main ideologue of “Russian
Islam”135—a secularized Islam subordinated to the needs of Tatar
Republicannationalism,subordinatedinturntotheraisond’étatof
the Eurasian idea. Khakimov endorsed an Asialeaning form of
Eurasianisminapairofessaysentitled“WhoaretheRussians?”and
“Who are you, Tatars?” In the first, Khakimov claimed that “the
RussiansarenomoreEuropeanthantheTatars.”136“Russian”wasin
any case an ambiguous concept. “The Russian (Russkii), the
German,thePole,theGeorgian,theFinn,theTatar—itisallRussia
132 Akhmedov,“Most‘TatarstanKrym.’”
133 “Uchebnik istorii krymskikh tatar pishut v Kazani,” BBC Russian Service, 11
November 2014, www.bbc.com/russian/international/2014/11/141111_crimean_
tatars_history_book_tatarstan.
134 “Dukhovnoprosvetitel’skii soiuz krymskikh i povolzhskikh tatar pozvolit
sozdat’polnotsennyitatarskiimir—Krganov,”Islamskiiportal,25March2014,
www.islamportal.ru/novosti/104/4749/.
135 Sometimesconfusinglycalled“EuroIslam.”
136 “Tatar Historian: ‘Russians are No More European than are the Tatars,’”
EuromaidanPress,9June2014,http://euromaidanpress.com/2015/06/09/tatar
historianrussiansarenomoreeuropeanthanarethetatars/.
THECRIMEANTATARQUESTION37
JSPPS3:2(2017)
(Rossiia).”137UptoandincludingthetimeofIvantheTerrible,the
conqueror of Kazan, “Moscow was half Tatar,” “an international
city.”MuscovywasfoundedontheprinciplesoftheGreatHorde.
“IvanIIIiscreditedwiththehonorofseparationfromtheHorde,
whichisnottrue.HespokeoutagainsttheKhanoftheGreatHorde
Akhmatasanimpostor,butwasnotatwarwiththeGoldenHorde
and did not undermine its foundations. These foundations were
loosened themselves without the help of the Russians.” The true
“sourcefortheconstructionoftheRussianempire”wastherefore
Tatar passionarnost’, not the declining strength of the Byzantine
empire. “After the collapse of theGoldenHorde the Russian idea
turned to the Byzantine tradition, close in faith, [and] joined the
statehood of the Horde and Orthodoxy, after which Tatar ideas
acquiredacompletelynew,ChristianByzantineshell.”138
TheVolgaTatars,meanwhile,accordingtoKhakimov,area
oncemighty nation reduced to a “slave psychology” by Imperial
Russian and then Soviet divideandrule policy. The aim of this
policyhadbeen “tomakeeveryethnicgroup ofTatarsaseparate
nation with itsown literary language and thus do away with the
nation,”splittingawaytheCrimeanTatarsandBashkirs.139
DivideandRuleContinuesafter2014
ThemainstreamCrimeanTatarmovement, asrepresentedbythe
Mejlis,wasweakenedbutnotdestroyedbyYanukovych.Infact,one
ofthereasonsfortheRussiancoupd’étatinCrimeainFebruary2014
was to forestall the installation of a Crimean government with
strongparticipationbytheMejlisledbyRefatChubarov,whohad
hoped to become the chair of the Crimean parliament, and to
receive“athirdoftheposts”inthenewgovernment.140Temirgaliev
137 “Rafael’Khakimov:‘Ktotakierusskie?’”Biznesonline,9March2013,www.busi
nessgazeta.ru/article/76466/.
138 Ibid.
139 “Rafael’ Khakimov: ‘Khto ty, Tatarin?’” Intelros, 2013,www.intelros.ru/?news
id=203.
140 “RustamTemirgalievorazvitiisobytii.”SeealsoBerezovets,Anektsiia,65–66;
Matzusato,“DomesticPoliticsinCrimea,”245–48;andChubarov’saccountof
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even claims that the Mejlis threatened his supporters: “we will
achieveitwithorwithoutyou,wehaveeverythinggoodwiththe
futurenewgovernmentinKyiv…Wewilljustcomeandthrowyou
alloutofhere.”141
The annexation changed everything. Once Dzhemilev
rejectedPutin’sinitialovertures,itwasnowevenmoreimportantto
splittheMejlis,buildingonYanukovych’spreviouswork,butwith
tougher and cruder tactics. Most Ukrainian security service
personnel(SBU)intheCrimeadefectedtotheRussianFSB,andit
wastheywhothenusedtheircontacts,information,andagentsto
arrest recalcitrant Mejlis members and promote the “loyalists.”142
They were joined by old FSB hands from the North Caucasus,
peddlingthesamecardofthe“radicalIslamicthreat.”143Interestingly,
thisseemedtobeeasierormoreinstinctivethanplayingdivideand
rule among Crimean Tatar ethnic subgroups, even though most
leadersoftheMejlisareYaliboyu.
A mixture of old and new bodies to rival the Mejlis duly
appearedafterFebruary2014,buildingonthesplitsof2011–13.Allhave
dulyspokenoutagainst“extremism”andtheblockadeofCrimea.All
havepeddledversionsofEurasianism.144Thenewprogramadopted
byMilliFirkain2014declaredthepartyan“activesupporterofthe
Eurasian integration of theCrimeanTatar people.”145One activist
MuratYazydzhievwasmuch blunter:after“Crimeareunitedwith
Russiabypeacefulmeans…theideaofthenationalstatelosesits
various Crimean Tatar meetings at www.facebook.com/dogrujol/posts/
1201282769966875.
141 “RustamTemirgalievorazvitiisobytii.”
142 Author’sinterviewwithYuliiaTyshchenko,13June2016.
143 “Krym radikaliziruetsia, yesli siloviki RF povtoriat opyt Severnogo Kavkaza,
zaiavili uchastniki diskussii na ‘Kavkazskom uzle,’” Kavkazskii Uzel, 27 June
2014,www.kavkazuzel.eu/articles/244906.Onpersonnelchanges inCrimea,
seeNikolaPetrov,“Krym:prevrashchenieukrainskogopoluostrovavrossiiskii
ostrov,” Counterpoint (Kontrapunkt) no. 1 (September 2015), www.counter
point.org/wpcontent/uploads/2015/09/petrov_counterpoint1.pdf.
144 DmitrySosnovsky,“CrimeanIdentity:Yesterday,Today,Tomorrow,”Russiain
Global Affairs, 7 June 2014, http://eng.globalaffairs.ru/number/Crimean
IdentityYesterdayTodayTomorrow16714.
145 “RemziIl’iasovsleduetprogrammuMilliFirka,”MilliFirka,26November2014,
www.millifirka.org/c/DBAGJHJB.
THECRIMEANTATARQUESTION39
JSPPS3:2(2017)
meaning,”hedeclared.A“newideathatcanuniteallCrimeanTatars
livinginCrimea”wasthereforeneeded.“Andthisideaissimple—
theCrimeanTatarsareRussians!”146
Two potential alternatives to the Mejlisnow appeared; the
difference between them was unclear—both operated in parallel.
TheQirim(K’yrym)PublicMovementwasestablishedinOctober
2014—Yazydzhiev was a member. Qirim Birligi (“Crimea Union”)
wasestablishedinJune2014andwasheadedbyRefatChubarov’s
defeatedopponentinthepreviousyear’sQurultayelection,Remzi
Il’iasov,whowasalsomadeDeputyChairmanoftheStateCouncil
ofCrimea.Il’iasovwaspersonallyclosetoSergeiAksenov,whowas
declaredCrimeanPrime Minister after theFebruary 2014coup in
Crimea.ByNovember2014AksenovwasreferringtoIl’iasovas“the
leaderoftheCrimeanTatarpeople.”147Il’iasovandagroupofthree
tofourformermembersoftheMejlisfavoredcooperatingwiththe
new authorities. Initially, they assumed that the QurultayMejlis
systemcouldberetained,butsubordinatedtoRussianlegislation—
astheyhopedtotakeitover.Il’iasovdulycalledfornewelections
fortheQurultayandMejlisin2015,planningthatitsleaderswould
beelectedintheplaceofthelikesofDzhemilevandChubarov,but
the Mejlis proved surprisingly resilient and loyal to its existing
leadership.Awouldbeconference ofQirim in July2015 attracted
twentyformermembersoftheMejlis,insteadofthetwohundred
(outoftwohundredandfortyeight)thathadbeenpredicted.148
This strategy explains why the Mejlis was not shut down
immediately, but was eventually banned as an “extremist
organization”in2016oncethetakeoverplanhadfailed.Qirimand
Qirim Birligi meanwhile have followed the Russian line through
every twist and turn since 2014, for example denouncing “the
146 Murat Yazydzhiev, “Krymskie tatary nachinaiut ob”ediniat’sia vokrug novoi
idei,”BelogorskNews,2November2015,www.belogorsknews.ru/2015/11/blog
post_2.html.
147 “AksenovnazvalIl’iasova‘lideromkrymskotatarskogonaroda,’”Krym.Realii,17
November2014,http://ru.krymr.com/a/26696272.html.
148 Golovko,OkupatsiiaKryma,107.
40ANDREWWILSON
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terrorism prepared by the Ukrainian special services,” during the
warscareofAugust2016.149
In November 2014, a Public Council of the Crimean Tatar
People emerged, gathering together twentytwo NGOs. Ruslan
Balbek,DeputyPrimeMinisterofCrimea,anotherformerdelegate
oftheQurultay,headstheCrimeaGenerationyouthmovementin
oppositiontotheMejlis,andhebecamethefirstCrimeanTatarDuma
MPinSeptember2015—markinghimoutasanotherpotentialloyalist
leader.150 Sebat was again used for “AntiMaidan” demonstrations,
including in Moscow.151 Several of its leaders, including the head
Seidamet Gemedzhi, were, however, subject to “prophylactic”
arrests, as the authorities struggled to control their activities. 152
CrimeanTatarbusinesseshavecomeunderpressure,especiallyafter
anewumbrellabusinessorganizationwassetupinFebruary2016
led by Rustem Nimetullaiev. ATR, the Crimean Tatar media
company,wasshutdowninApril2015,andreplacedwitha“clone,”
Millet(“Nation”).MilletclearlyhadbroaderpanTurkicorEurasian
ambitions, as it planned to broadcast to Russia, Ukraine, Central
Asia,andTurkey.153
Thesamestrategyof(threatened)divideandrulewasmore
successful in cowing the Mejlis’s religious allies, the Spiritual
Directorate ofMuslims ofCrimea(DUMK), led since1999bythe
Mufti of Crimean Muslims haji Emirali Ablaev. As with political
partiesandNGOslikeSebat,theYanukovycherahadalreadyseen
theartificialemergenceofarivaltoDUMK,theSpiritualCenterof
Muslims of Crimea (DTsMK), which was registered in December
149 “Krymskie tatary pochtili pamiat’ rossiiskikh voennykh, pogibshikh pri
zaderzhaniidiversantov,”Russkaiavesna,20August2016,http://rusvesna.su/
news/1471712987.
150 “Ruslan Bal’bek: mezhnatsional’noe soglasie v Krymu—prezhde vsego,”
Krymskiivektor,28May2014,http://crimeavector.com.ua/obschestvo/7551rus
lanbalbekmezhnacionalnoesoglasievkrymuprezhdevsego.html.
151 “‘Sebat’podderzhalPrezidentRossiina‘Antimaidane,’”MilliFirka,4February
2015,www.millifirka.org/c/DBAGKCKC.
152 “VKrymuarestovanaktivistkrymskotatarskoiorganizatsii‘Sebat,’”Grani.Ru,29
January2015,http://graniru.org/Politics/Russia/m.237332.html.
153 “ProRussianCrimeanTatarTVChannelStartsSatelliteBroadcasting,”RFE/RL,
1 April 2016,www.rferl.org/content/crimeaprorussiantatartvstation/27648
579.html.
THECRIMEANTATARQUESTION41
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2010. In 2014 theDTsMKbecame a new “Taurida Muftiate,” with
linkstotheradicalLebanesegroupalAhbash.154Oneoftheoldest
mosquesinCrimea,thesixteenthcenturyJumaJamiinYevpatoriia
wasforciblyhandedovertotheTauridaMuftiateinSeptember2014.
After this, Ablaev got the message, especially as theDUMK was
muchmorereliantonitsmosquesandotherphysicalinfrastructure
thantheMejlis.SincetheYevpatoriiaincident,Ablaevhastalkedup
thebenefitsof“dialogue”withtheoccupationauthorities.155
Without citing any evidence, proRussian authorities claim
that the Crimean Tatars’ support is evenly split between Qirim
Birigli and the Mejlis. 156 The last reliable evidence was the 2013
Qurultayelections,whenturnoutwasjustover50%.157Accordingto
oneexpostfactosurvey,72%ofCrimeanTatarsfollowedthecallby
theMejlistoboycottthe2014“referendum”onunionwithRussia;158
andtherehavebeennoreliableopinionpollsundertheoccupation.
RemziIl’iasovdidnottakemanysupporterswithhimwhenheleft
the Mejlis. Some defectors, like the businessman Lenur Isliamov,
havegonebackandforthbetweentheMejlisanditscompetitors.A
substantialnumberofneutralsordriftersexistinbetweenthetwo
camps. The 2014 “census” conducted by the Russian occupying
authoritiesrecorded232,340CrimeanTatars(10.8%),butabigjump
inthosecallingthemselvesjust“Tatars,”to44,996(2%),compared
to245,291CrimeanTatars(10.2%)andonly13,602“Tatars”(0.6%)in
thelastofficialUkrainiancensusin2001.159
154 “‘Tavricheskiimuftiat’ ulichili v sviaziakh s opasnoi livanskoi sektoi,” Islam
News.ru,2July2015,www.islamnews.ru/news466828.html.
155 Compare Vladislav Mal’tsev, “‘Krym nash’ dlia muftiiaAblaeva,”NG religii, 1
April 2015; www.ng.ru/ng_religii/20150401/1_crimea.html; and the hostile
critiqueofAblaevbySergeiStel’makh,“’Gromkoe’molchanoemuftiiaAblaeva,”
Krym.Realii,28January2017,http://ru.krymr.com/a/28263312.html.
156 “50%ofCrimeanTatarsSupport‘QirimBirligi’:Nimetullaev,”QHA,23October
2014, http://qha.com.ua/en/politics/50ofcrimeantatarssupportquotqirim
birligiquotnimetullaev/132495/.
157 “Results for Elections to Qurultay Known,” QHA, 19 June 2013,
http://qha.com.ua/resultsofelectionsforqurultayknown127731en.html.
158 WojciechGórecki,“ThePeninsulaasanIsland.CrimeainitsThirdYearsince
Annexation,”OSW,22November2016;www.osw.waw.pl/en/publikacje/point
view/20161122/peninsulaislandcrimeaitsthirdyearannexation.
159 Seenote78.
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Ironically,theCrimeanTatarEurasianistscanclaimsomeof
their authority from the work of the founding father of Crimean
Tatarintellectuallife,IsmailGasprinski(1851–1914).Gasprinskiwas
aJadidist160reformerandbelieverinpanTurkism,butintheclimate
of the times he thought the Russian Imperial authorities could
promotesuch unity,appealingtothemtotake all ofthe“Turkic
Tatar”worldundertheirwing.InhisworksRussianIslam:Thoughts,
Notes and Observations of a Muslim (1881) and RussianEastern
Agreement: Thoughts, Notes andWishes (1896), Gasprinski called
for harmony and cooperation within the “RussianMuslimworld,
lying between the European and the Mongolian worlds in the
centralpartsofthehemisphere,atthecrossroadsofallroadsand
trade relations, cultural, political and martial. Both their
neighboringworlds—EuropeanandMongolian—areovercrowded.”
Europe, always seeking to expand to the east, was always “acting
againstRussiaandagainsttheMuslim.”161AleksandrDuginquoted
Gasprinskiapprovinglyina“Eurasianist”speechinAnkarainJuly
2016,ironicallycoincidingwiththefailedcoupinTurkey.162Dugin
even tried to instrumentalize the Crimean Tatar connection as a
meansofbringingTurkeybackclosertoRussia.
CrimeanIdentity
Finally,thereistheissueoftheplaceoftheCrimeanTatarswithin
abroaderCrimeanidentity,ifoneisacceptedtoexist.163Formany
local Russianspeaking intellectuals, Crimea is simply part of a
160 The Jadids or “Progressives” were part of a modernizing Islamic reform
movement inthe last years oftheRussianempire,whichsought toimprove
educationandculturalstandards.
161 Ismail Bei Gasprinskii (Gaspraly), “Russkoe musul’manstvo. Mysli, zametki i
nabliudeniia musul’manina,” and “Russkovostochnoe soglashenie: mysli
zametki i pozhelaniia,” in L.V. Shepot’ko (ed.), Otechestvennaia istoriia:
Khrestomatiia(Vladivostok:NavalUniversity,2005),165–71,at169and70.
162 See the video of Dugin’s speech at www.youtube.com/watch?v=9
yFOb_TjtE.Theremarksare39minutesin.
163 Oles’Cheremshina,“Yest’liotdel’naiakrymskaiaidentichnost’?”Krym.Realii,
30April2014,http://ru.krymr.com/a/25368172.html.
THECRIMEANTATARQUESTION43
JSPPS3:2(2017)
broader Russian nation.164For others it is part, and a key part of
RussianledEurasia.165Forothers,thereisaspecificregionalidentity,
of a multinational “Crimean people.” 166 According to the local
academicAndreiMal’gin,writingin2000,
irredentism was never the dominant mentality of the Russianspeaking
majorityinthepeninsula…theideaofrecreatingtheCrimeanautonomywas
basedprimarilyontheneed[fortheCrimeanpopulation]todistanceitself
fromMoscowand establish local controloverthe use of resources of the
Crimeaanditsenvironment...Inthisrespect,Crimeanautonomismwasvery
reminiscentofregionalisminSiberiaandtheUrals,withtheirviewsonthe
valueofasmallregionalhomeland.167
Theideaofa“CrimeanPeople”rarelyincludedtheCrimean
Tatars,however.Insofarasithasbeenusedsince2014,ithasbeen
toclaimtheartificialunitydisplayedinthereferendumonjoining
Russia.Theoccupyingauthoritieshaveusedcrudetacticstodepict
theCrimeanTatarsas jihadists.168Theyhave alsobackedtheidea
thatthelocalGreeksarethetrue“rooted”peopleofCrimea,169with
Putin himself saying in May 2014 (after the Mejlis leaders had
164 AndreiSurkov,“Russkie—korennoenaselenieKryma.Istoriia,”Novorossiia,8
March 2014, http://novorus.info/news/history/13878istoriyakrymarusskie
korennoenaselenie.html.
165 See,forexample,thewebsiteof“Krymskoerespublikanskoeobshchestvennoe
dvizhenie‘Yevraziia,’”www.krod.narod.ru.
166 Eleanor Knott, “Do Crimeans See Themselves as Russian or Ukrainian? It’s
Complicated,”TheMonkeyCage,3December2015,www.washingtonpost.com/
news/monkeycage/wp/2015/12/03/docrimeansseethemselvesasrussianor
ukrainianitscomplicated/.
167 Andrei Mal’gin, “Novoe v samosoznanii etnicheskikh grupp Kryma,”
http://www.archipelag.ru/authors/malgin/?library=1172; first published in
OstrovKrymno.3(9)(2000).
168 Halya Coynash, “New Weapon Against Dissent in Crimea: ‘Ideology of
Terrorism,’” Human Rights in Ukraine, 26 February 2015,www.khpg.org/en/
index.php?id=1424552129;andCoynash,“RussiaAccusesCrimeanTatarLeaders
of Recruiting for Islamic State,” Human Rights in Ukraine, 12 October 2015,
http://khpg.org/en/index.php?id=1444434154.
169 V.K.Mordashov,“KtovKrymukorennoi—slaviane,tatary,iligreki?,”Krymskie
izvestiia,March1992,availableatthewebsiteofNarodnyiFront“Sevastopol’–
Krym–Rossiia”,http://sevkrimrus.narod.ru/ZAKON/koren4.htm.
44ANDREWWILSON
JSPPS3:2(2017)
rebuffedhisovertures)thattheGreeks“weretherebeforeus.”170The
Greek,orByzantine,linkreinforcestheRussianversionofthemyth
of Vladimir’s baptism in 988. And the local Greeks are now
reassuringly small in number—only 3,036 in Crimea in 2001 and
2,877in2014,althoughtheynumber200,000inRussiaandUkraine
asawhole.171
Onceagain,however,thisisaselectivereadingofhistoryat
best.TheoldercommunitywithdeeperhistoricallinkstoCrimea,
andahistoryofinterminglingwiththeCrimeanTatars,aretheAzov
orMariupil’Greeks.ThePonticGreeksandArvanites(speakersofa
dialectofAlbanian)thatcamefromtheBalkansandAnatoliainthe
lateeighteenthandnineteenthcenturieshadstrongerlinkstothe
Imperialstatethatinvitedthem—anditispresumablytheseloyalist
GreeksthatPutinhadinmind.
Butintruth,manyCrimeanintellectualseitherneglectedthe
Crimean Tatar issue before 2014 orwere downright hostile. Even
whentheideaofa“CrimeanPeople”andtheCrimeaasalocal“small
homeland” was promoted, it was based on supposed “external”
threats, and first and foremost among these was “the myth of
CrimeanTatar indigenousness.”Thismythshouldbeopposed, as
should the myth (or mifologema) of “Ukrainianness,” the
“geopolitical construct of EuroAtlanticism,” and, ironically,
Crimeans’ownapathy.172
Conclusions
Crimea’sfuturewillmainlybedeterminedbyinternationalpolitics.
Butshifting identitypolitics willshapetheenvironmentinwhich
170 “Putin:nado tshchatel’no prorabotat’ voprosokorennykh narodakhKryma,”
RIA Novosti, 16 May 2014, http://ria.ru/crimea_today/20140516/100804624
4.html.
171 Paul Goble, “Another Punished People, the Pontic Greeks, Posing New
ProblemsforMoscowinCrimea,”EurasiaDailyMonitor,12,no.194,27October
2015, https://jamestown.org/program/anotherpunishedpeopletheponticgr
eeksposingnewproblemsformoscowincrimea/.
172 Anatolii Filatov, “Russkii Krym: vneshnie ugrozy i vnutrennie vyzovy. Krym
poka izbegaet ukraintsva,” Russkie.org, 18 November 2011, www.russkie.org/
index.php?module=fullitem&id=24007.
THECRIMEANTATARQUESTION45
JSPPS3:2(2017)
the relevant decisions are made. The mainstream Crimean Tatar
positionthattheyarenotanationalminority,butanationrooted
in Crimea as their only homeland will ensure their continued
oppositiontoRussianannexation,regardlessofthelegalstatusof
thepeninsula.TheEurasianistalternativeofferedbytheoccupying
Russianauthoritiesseemstohavehadlesseffectinbuildingrivals
totheMejlisthantheircrudedivideandruletactics.Anyprospects
forattemptstobuildagenuinemultiethnicRussianCrimeawere
jeopardizedbythetacticsusedtosecureannexationin2014.
Alternatively, Crimean Tatars could accommodate to the
realities of Russian annexation, if the Mejlis is seen by sufficient
numbers of ordinary Crimean Tatars as too radical, and if the
authoritiescommittopracticalissueslikelandandhousing.Sofar,
CrimeanTatareducationinCrimeahasnotbeensubjecttothesame
restrictions as Ukrainian,more Crimean Tatars havegoneon the
Hajj via the Russian quota, 173 and the longawaited prestigious
Cathedral Mosque construction project is going ahead in
Simferopol.
ButthebiggestimpactoftheCrimeanTatarissuesince2014
has been on helping to reshape Ukrainian national identity and
nationalism. Two potential new civic identities, Ukrainian and
Crimean Tatar, feed off one another—although the longterm
triumphofneitheriscurrentlyguaranteed.
173 AbdullahAsanov,“Hajj‘ataDiscount,’RussianStyle,”IslamvUkraini,1October
2014,http://islam.in.ua/en/ukrainiannews/hajjdiscountrussianstyle.
Annex 1025
Michael Kofman et al., Lessons from Russia’s Operations in Crimea and Eastern Ukraine, RAND
Corporation (2017)
Michael Kofman, Katya Migacheva, Brian Nichiporuk,
Andrew Radin, Olesya Tkacheva, Jenny Oberholtzer
Lessons from Russia’s
Operations in Crimea
and Eastern Ukraine
C O R P O R A T I O N
5
CHAPTER TWO
The Annexation of Crimea
How Russia Annexed Crimea
This chapter looks at Russia’s operation to annex Crimea. We begin
with the basic question of what happened. The chapter provides a concise
chronology of the events that took place during the Russian invasion
and then delves into analysis of the Russian successes and failures
during the operation. What follows is an exploration and an effort
to discern what broader takeaways can be made from the Ukrainian
experience for other countries. We discuss the important factors that
enabled—or hindered—Russia’s invasion of the peninsula. At the end
of this chapter, we address whether the annexation of Crimea should be
considered as a potential model for Russian military action elsewhere
and what it might tell us about the military capabilities of Russia’s
armed forces.
The Balance of Forces
According to a credible source, at the onset of its conflict with Russia,
Ukraine kept a force of roughly 18,800 personnel stationed in Crimea,
most of which were in its navy.1 However, in February, Ukraine’s
interim defense minister assessed this number as closer to 15,000 troops.
1 “Ukraine Troops Leave Crimea by Busload; Defense Minister Resigns After Russia Seizes
Peninsula,” CBS News, March 25, 2014; “Transcript of a Secret Meeting of the National
Security Council February 28, 2014 [Стенограмма секретного заседания СНБО 28
февраля 2014 года],” ECHOMSK blog, February 23, 2016. This reference is the Russianlanguage
version of Ukraine’s declassified National Security Council meeting on February
28, 2014, to discuss the response to Russian military activity in Crimea.
6 Lessons from Russia’s Operations in Crimea and Eastern Ukraine
This force included 41 tanks, 160 infantry fighting vehicles, 47 artillery
systems, and heavy mortars.2 The navy’s coastal defense troops
included a missile artillery brigade, two independent marine battalions,
and a coastal defense brigade.
Other Ukrainian assets in Crimea were not as potent. Most of
Ukraine’s air force units were in disrepair. Of the 45 MiG-29 fighters
at Belbek airbase near Sevastopol in southwest Crimea, only four to
six were operational.3 Ukrainian air defenses included Buk-M1 and
S-300 surface-to-air missile systems, which were at questionable
readiness levels but could still be potent deterrents. A contingent of
2,500 Ministry of the Interior troops was also present, although they
perhaps had little defense value. During national leadership meetings
in February, Ukraine’s minister of defense considered approximately
1,500–2,000 troops as dependable and willing to follow if ordered to
fight the Russian military.4
Russia had roughly 12,000 military personnel in the Black Sea
Fleet at the time, the only infantry unit of which was the 810th Independent
Naval Infantry Brigade. The Russian Naval Infantry was
staffed by contract troops, who are better trained, paid, and equipped
than typical conscript units. In terms of numbers and available firepower,
these forces were inferior to Ukraine’s units in Crimea, lacking
infantry fighting vehicles, armor, or artillery. However, the terms of
Russia’s basing agreement with Ukraine offered substantial leeway to
transfer in units from the mainland if needed, offering a large upload
capacity.
A Chronology of Events
Ukrainian and Russian units went on alert on February 20, 2014, as
Maidan protests in Kyiv escalated into violent clashes with government
security forces. Russian operations in Crimea effectively began on
2 Colby Howard and Ruslan Pukhov, eds., Brothers Armed: Military Aspects of the Crisis in
Ukraine, Minneapolis, Minn.: Eastview Press, 2014.
3 Howard and Pukhov, 2014.
4 “Transcript of a Secret Meeting of the National Security Council February 28, 2014
[Стенограмма секретного заседания СНБО 28 февраля 2014 года],” 2016.
The Annexation of Crimea 7
February 22 and 23, as battalions of Spetsnaz (elite infantry) units and
Vozdushno-Desantnye Voyska (Airborne Forces or VDV) left their
bases, while others were airlifted close to the strait separating Russia
from Crimea. Figure 2.1 provides an overview of Russian operations in
Crimea through March 9.
On February 24, the city council in Sevastopol installed a Russian
citizen as mayor, and several units from the 810th Naval Infantry
arrived in the city square in armored personnel carriers (APCs), in violation
of the rules governing basing arrangements in Crimea.5 This was
the first tangible sign that Russia had decided to intervene militarily
to change the political order on the peninsula. On February 25, the
Nikolai Filchenkov, an Alligator-class landing ship carrying 200 Rus-
5 Howard Amos, “Ukraine: Sevastopol Installs Pro-Russian Mayor as Separatism Fears
Grow,” Guardian, February 25, 2014.
Figure 2.1
Map of Crimea and Russian Operations, March 2014
Armyansk
Novoozerne
Chonhar
Dzhankoy
Chornomorske
Feodosiya
Yalta
Kerch
Simferopol
Sevastopol
UKRAINE NORTH OF CRIMEA
CRIMEA
RUSSIA
RUSSIAN CONVOYS
RAND RR1498-2.1
March 1. Russian armored
vehicles arrive and start
digging trenches.
March 9. Russian troops
capture missile depot.
March 8. Russian troops arrive and
start installing boundary pillars.
March 3.
Russian
troops
take air eld.
March 1. Russian troops take
control of Kerch ferry port;
Ukrainian military unit
surrounded.
March 1. Russian
warship blocks port.
Ukrainian base
beseiged.
Feb. 25.
Russian troops arrive.
Feb. 27. Masked gunmen
seize government buildings.
March 6. Parliament votes for
independence; sets referendum.
Feb. 24. Russian armored
vehicles move out of
Russian bases.
Russian warships blockade
Ukrainian warships.
8 Lessons from Russia’s Operations in Crimea and Eastern Ukraine
sian special operations forces (likely Special Operations Command,
Russia [KSO]),6 arrived in Sevastopol. In addition to bringing specialoperations
forces units that would subsequently be used in the covert
takeover of Crimea, it also may have later evacuated Yanukovych.7
On February 26, Russian President Vladimir Putin ordered a
snap inspection involving 150,000 troops from parts of the Western
and Central Military District.8 A drill of this scale was not unusual.
The new minister of defense, Sergei Shoigu, had been frequently ordering
large snap readiness checks and simultaneous drills since 2013.
This exercise, however, was used specifically as a diversion and cover
for troop movements. Ostensibly, the exercise was not focused on
Ukraine’s borders but to move VDV and Spetsnaz troops northward in
Russia. Roughly 40 Ilyushin Il-76 military transports left Ulyanovsk
airbase in Russia, with a large portion of these moving units to Anapa,
a staging area just east of Crimea.
On February 27, 50 special-forces operators from the KSO unit
pretending to be a local “self-defense militia” seized the Crimean Parliament
and raised a Russian flag over the building.9 Another large
landing ship with 300 Russian soldiers arrived following proper border
procedures to enter Ukraine but without advance notice to Ukrainian
authorities as stipulated in agreements. Later that night, Russian sol-
6 In early 2012, Russia formed a new special-forces unit called KSO. This is a small unit
modeled closer to Delta Force in the United States, designed to operate independently and
abroad. By contrast, the Spetsnaz are military reconnaissance and saboteur units intended to
operate alongside conventional formations and more representative of elite infantry.
7 Howard and Pukhov, 2014.
8 Niklas Granholm, Gudrun Persson, Johannes Malminen, Jakob Hedenskog, Carolina
Vendil Pallin, Anna Sundberg, Johan Eellend, Johan Norberg, Carina Lamont, Tomas
Malmlöf, Mike Winnerstig, Kaan Korkmaz, Märta Carlsson, Mikael Eriksson, Niklas Rossbach,
Susanne Oxenstierna, Bengt-Göran Bergstrand, Ulrik Franke, John Rydqvist, Erika
Holmquist, and Fredrik Westerlund, A Rude Awakening. Ramifications of Russian Aggression
Towards Ukraine, Stockholm: Swedish Defense Research Agency, FOI-R-3892, June 16,
2014.
9 Video of the entry and seizure of the Crimean Parliament by Russian special forces was
recorded by the building closed-circuit television cameras at the entrance. Their entry is visibly
facilitated by the local police. Euromaidan PR, “Ukraine War: Russian Special Forces
Seize Parliament Building in Crimea Ukraine,” August 16, 2014.
The Annexation of Crimea 9
diers without markings surrounded Belbek Air Base. On the morning
of February 28, a convoy of three Mi-8 transport helicopters and eight
Mi-35M attack helicopters crossed into Ukraine without permission,
giving Russia the ability to neutralize Ukrainian armor and operate at
night.10 Ukraine scrambled fighters, deterring further helicopter units
from transferring, but the Mi-35s already were operating openly over
Crimea and supporting Russian forces on the ground.
In sum, Russian movements of late February 2014 effectively
boxed in Ukraine forces, even though Russian capabilities were
limited to one incomplete naval infantry brigade and several hundred
special-forces operatives. On February 28, Russian forces also seized
Simferopol airport, canceled all flights, and began airlifting VDV
units into Crimea. Still at a distinct numerical disadvantage, on March
1–2, Russia brought reinforcements by heavy landing ships. These
units spread across the peninsula without much resistance, quickly
encircling or taking over bases and military facilities. Armed with light
utility vehicles and APCs, the Russian units had little firepower but
high mobility.
Ukraine saw its docked fleet blockaded by Russian ships; the commander
of its navy, Denis Berezovsky, defected to Russia.11 Russia had
hoped this would prompt further defections, but it did not. Instead,
Russian forces made ad hoc arrangements with trapped Ukrainian
troops at bases across the peninsula to maintain the siege without
violence. Russian troops applied heavy psychological pressure, propaganda,
and promises to Ukrainian commanders to get them to defect,
with little success until after the annexation in March.12
From March 6 on, Russia began a conventional troop buildup
over the Kerch ferry crossing in eastern Crimea, bringing in units from
10 Howard and Pukhov, 2014.
11 Of these, mostly smaller support vessels were operational. Ukraine’s only major surface
combatant, a Krivak-class frigate, was away at the time and not in the Black Sea.
12 Large numbers of enlisted and officers either switched sides or resigned their commission
and stayed in Crimea after the official annexation was complete. These included some highprofile
commanders and unit members who managed to escape Crimea with their equipment
but subsequently returned.
10 Lessons from Russia’s Operations in Crimea and Eastern Ukraine
motor rifle brigades, towed artillery, a variety of air-defense units, and
antiship missile batteries. The Russian military also began to mass
units on Ukraine’s eastern border as a threat and diversion. Russian
forces sealed Crimea off from mainland Ukraine at its northern crossing
points. They severed landline communications between the Ukrainian
mainland and bases on Crimea; supposedly, in some areas, cellphone
signals were jammed, possibly from ship-based equipment.13
Russian soldiers also cut electricity to some bases to apply pressure on
the besieged Ukrainian troops within.
In brief, Ukraine had lost effective command and control over
its units on the peninsula roughly one week into the operation. Russian
intelligence also used this time to organize self-defense units consisting
of local militia,14 Cossacks (a distinct cultural group of East
Slavic people common to the region), and former special police called
Berkut.15 Russian airborne troops also donned police uniforms to help
keep order among the population under the pretense of being local
security forces.
Crimea’s local leadership likely did not coordinate with the
Kremlin, and the lack of integration was evident in the scheduling of a
plebiscite on Crimea’s fate. The Crimean Parliament initially declared
a referendum on independence for May 25, then moved it to March
30, before finally deciding on March 6 to hold the vote on March
16. As the likelihood of its operation’s success increased, without any
apparent resistance or evidence of counterattack by Ukrainian forces,
Moscow sought an earlier referendum date, moving up the timetables
for annexation. Igor “Strelkov” Girkin, who would help lead the insurgency
in Eastern Ukraine, later recounted that local officials were not
13 Shane Harris, “Hack Attack,” Foreign Policy, March 3, 2014.
14 Roger N. McDermott, Brothers Disunited: Russia’s Use of Military Power in Ukraine, Fort
Leavenworth, Kan.: Foreign Military Studies Office, 2015.
15 Berkut were a special unit within Ukraine’s police force under the Ministry of Interior.
They were responsible for much of the fighting on the Maidan and, allegedly, for deaths
among civilians. The interim government disbanded Berkut; many former “Berkuts” then
came to Crimea and the Donbas to join the separatist cause.
The Annexation of Crimea 11
enthusiastic participants in the events but had to be rounded up by
paramilitaries to hold the official vote on accession to Russia.16
The political process to hold a referendum appeared to be hastily
organized and improvised. Indeed, there were two votes: one to leave
Ukraine, which was necessary for Crimea to become an independent
polity, and a final referendum to accede to the Russian Federation.
Russia may have considered turning Crimea into a frozen conflict (i.e.,
bringing about a cessation of active conflict without a change in political
status) before the Crimean Parliament voted to secede from Ukraine.17
The March 16 referendum would become the political instrument to
annex the peninsula, a process that concluded on March 18.
Russia annexed Ukraine with no direct Russian casualties. There
were perhaps six associated deaths, including from interactions among
opposing groups, such as when, on March 19, a vigilante shot a Ukrainian
warrant officer and a Russian Cossack during negotiations outside
a base. From March 19 to March 25, Russian forces seized Ukrainian
bases in Crimea, most of which offered no resistance. Moscow
promised to honor the rank of and provide better pay and benefits to
any Crimea-based Ukrainian soldiers who defected and accepted Russian
citizenship. Most did so, in large part because they were stationed
near families and homes on the peninsula.18 Ukraine’s defense minister
was subsequently forced to resign, announcing that, out of 18,000
soldiers and families, only 6,500 chose to leave for Ukraine proper.19
Even among those who left, such as the 10th Naval Aviation Brigade,
16 “Girkin: ‘Militia’ Pressured Crimean Deputies into the Auditorium for Voting [Гиркин:
«Ополченцы» сгоняли крымских депутатов в зал для голосования],” Krymr.org,
January 24, 2015.
17 Michael B. Kelley, “Crimean Parliament Votes Unanimously to Become Part of Russia,”
Business Insider/Military and Defense, March 6, 2014.
18 Officers in Ukraine and Russia are provided with apartments, which are often in short
supply. More than likely, any officer that left Crimea could expect to have housing difficulty,
since Ukraine lacked the apartments and funds to address the displaced.
19 “Ukraine Troops Leave Crimea by Busload; Defense Minister Resigns After Russia Seizes
Peninsula,” 2014.
12 Lessons from Russia’s Operations in Crimea and Eastern Ukraine
some soldiers later resigned and returned to Crimea.20 By March 26,
the annexation was essentially complete, and Russia began returning
seized military hardware to Ukraine.21
Russia’s Information Campaign
An information campaign preceded, accompanied, and followed
Russian military operations in Crimea. Its primary audience was the
Russian public at home, with Crimean residents as a secondary consideration.
The Russian media always maintained some coverage on
events in Crimea for its own domestic public, but this intensified as the
clashes between the pro-government forces and the protesters in Kyiv
grew more violent. The Maidan protest movement, which began in
November 2013, had animated Russia’s already-intense manipulation
of information aimed at its own citizens, warning them of the dangers
of closer ties with the EU. Its campaign included subsuming or pushing
to the margins the few remaining domestic independent media
outlets, thereby gaining further control and power to shape views in
Russia of the events in Ukraine.22 Existing government outlets, such as
RIA Novosti and Voice of Russia, were consolidated into Russia Today,
now known as RT.23
At the time, most of Eastern Ukraine and Crimea watched Russian
television and, typical of the former Soviet space, the overwhelming
majority of the population received their news from televised
20 bmpd (user), “The Defection Of Ukrainian Navy Troops Into the Russian Armed Forces
After Leaving Crimea [Переход военнослужащих ВМС Украины в Вооруженные
Силы России после оставления Крыма],” Livejournal blog, March 5, 2016.
21 The process of returning Ukrainian military equipment was halted when Kyiv launched
the Anti-Terrorist Operation in Eastern Ukraine later that year. However, Russia did return
a large portion of Ukraine’s aviation and naval assets because most of it was not serviceable.
Russia did keep a handful of operational ships, adding them to its Black Sea Fleet. “Russia
Will Give Ukraine the Military Equipment from Crimea [Россия передаст Украине
военную технику из Крыма],” RG.RU, March 28, 2014.
22 Olga Oliker, Christopher S. Chivvis, Keith Crane, Olesya Tkacheva, and Scott Boston,
Russian Foreign Policy in Historical and Current Context: A Reassessment, Santa Monica,
Calif.: RAND Corporation, PE-144-A, September 2015.
23 Stephen Ennis, “Putin’s RIA Novosti Revamp Prompts Propaganda Fears,” BBC Monitoring,
December 9, 2013.
The Annexation of Crimea 13
media. Ukraine had largely ceded Russian-language information to
Russian-based outlets since its independence from the Soviet Union in
1991, particularly in Crimea. While Moscow did not officially promote
Russian media in Ukraine, Russian media markets were so much larger
than Russian-language markets in Ukraine that their information
and entertainment channels were dominant among Russian-speaking
Ukrainians. Russian forces turned off nine Ukrainian television channels
on March 9, leaving access to Russian channels only.24 Channels
from Ukraine remained accessible via satellite receivers.
When the Yanukovych government collapsed in early 2014, Russian
rhetoric on the events in Ukraine became more severe. Russian
media typically referred to Ukraine’s interim government and the protest
movement that brought it about as a “fascist junta.” There were
three goals to Russia’s information campaign during the operation to
seize Crimea: discrediting the new government in Ukraine, emphasizing
the grave danger to Russians in Ukraine, and ensuring the display
of broad support for Crimea’s “return home” to the safety of Russia.
Table 2.1, based on additional RAND research, summarizes strategic
themes of Russian messaging on Ukraine.
On February 26, Russia began aggressively promoting its message
that regime change in Ukraine was illegitimate. That day was one
day prior to the Russian military takeover of government buildings
in Crimea. This message was advanced by several Russian figures and
elites; for example, Sergei Mironov, leader of Russian political party
Spravedlivaya Rossiya, on the Russia 24 news channel,25 and Ramzan
Kadyrov, head of the Chechen Republic, on the LifeNews channel26
contended that Russians were under threat in Crimea and required
protection and that Russia needed to act to secure their safety. The
message was straightforward: “[N]ationalists and fascists took power
24 “How the Audience of Ukrainian TV Channels Changed in Crimea [Як змінився
перегляд українських телеканалів у Криму],” Forbes, April 2, 2014.
25 “Mironov: Russia Must Protect Russians in Crimea,” vesti.ru, February 26, 2014.
26 “Ramzan Kadyrov: Russia Will Not Give Ukraine into the Hands of the Bandits [Рамзан
Кадыров: Россия не позволит отдать Украину в руки бандитам],” LifeNews, February,
26, 2014.
14 Lessons from Russia’s Operations in Crimea and Eastern Ukraine
in Kyiv, they will force Russians to abandon the Russian language and
present a general threat.”27
At a March 4 press conference, Putin said that his country had
no plans to annex Crimea and that there were no Russian soldiers on
Crimean soil. Such claims were part of the official campaign of public
denial; this, after all, intended to be a covert takeover. Putin claimed
that the dismay of Western powers over the situation was utterly hypo-
27 “Mironov: Russia Must Protect Russians in Crimea,” 2014; and “Ramzan Kadyrov:
Russia Will Not Give Ukraine into the Hands of the Bandits [Рамзан Кадыров: Россия
не позволит отдать Украину в руки бандитам],” 2014.
Table 2.1
Themes of Russia’s Strategic Communication on Crimea
General Themes
On the Ukrainian
Government
On the Role of Western
Countries
• The Crimean land
historically belonged
to Russia.
• The transfer of Crimea
to Ukraine in 1954 was
a historical mistake of
the Soviet period.
• Ethnic Russian and all
Russian-speaking populations
in Crimea were
under imminent ultranationalist
threat.
• Russia was not involved
in events in Crimea.
• The March 16 referendum
on independence
was legitimate, demonstrating
the will of the
people of Crimea.
• Ukrainian soldiers
voluntarily gave up
their weapons and
pronounced their allegiance
to Russia.
• The Ukrainian government
acts in
the interests of the
United States and
other foreign powers.
• The Maidan movement
is overrun
by (violent)
ultra-nationalists.
• Ukraine’s president
was overthrown in
an illegitimate coup
d’état, backed by the
West.
• The pro-European
population of
Ukraine are ideological
descendants of
Nazi supporters and
fascists.
• Western countries,
and especially the
United States, are the
core orchestrators of
the events in Ukraine.
• The primary U.S.
motivation is the
expansion of the
North Atlantic Treaty
Organization (NATO)
and containing
Russia.
• The United States is
pressuring Europe
to impose sanctions
against Russia and is
the driving force of a
policy of containment
against Moscow.
• Russian policy is not a
departure from previous
Western interventions
to change borders
and create new
political entities, such
as in Kosovo.
NOTE: Based on RAND research into the Russian information campaign led by one of
the authors in 2015. See Appendix A for a more detailed analysis of the themes and
tools used in Russia’s strategic-communication campaign.
The Annexation of Crimea 15
critical and if Crimea were to return to Russia, it would not violate any
norms or create new precedents. Putin further claimed that Russia was
not planning to invade Ukraine, but the country might be forced to
intervene if the situation of Russians in Ukraine worsened. This was
a veiled threat, given the large amount of Russian forces arrayed near
Ukrainian borders. He also claimed that the snap military exercises on
Ukraine’s border were planned long ago and had nothing to do with
the ongoing events.28
In addition to traditional media, a seemingly grassroots mobilization
campaign in Crimea to counter the Maidan movement also
played a role in Russia’s strategic communications. This campaign
originated from the Russian-speaking population of Crimea, although
some alleged the Russian government was behind it.29 A movement
called Stop Maidan emerged in Simferopol. Its message relied on visual
outdoor ads—tents with logos, in addition to banners saying “no to
extremism” and “no to foreign intervention.” The messages used by the
anti-Maidan activists in Crimea resonated with Russian-media statements
depicting Maidan protests as foreign organized and Maidan
participants as fascist extremists.30 The movement also used direct calls
28 “Anti-Constitutional Coup and Seizure of Power—President Gave an Assessment of
What Happened in Kiev [Антиконституционный переворот и захват власти—
Президент РФ дал оценку тому, что произошло в Киеве],” Channel One [Смотрите
оригинал материала на], March 4, 2014.
29 Allison Quinn, “Why Moscow’s Anti-Maidan Protesters Are Putting on an Elaborate
Pretence,” Guardian, February 26, 2015.
30 “In Simferopol, the Activists of the ‘STOP Maidan’ Collect Signatures for Greater Autonomy
of Powers [В Симферополе активисты «СТОП Майдан» собирают подписи
за расширение полномочий автономии],” Arguments of the Week, February 13, 2014;
“Flier distributed in Crimea,” February 1, 2015, noted:
Your neighbor, Aleksandra Dvoretskaya—the traitor of Crimea, supports criminal
Maidan. The blood and lives of those killed are on her consciousness. She receives
money from an American secret services funded organization and had received
training in extremism in the USA [Ваша соседка Александра Дворецкая—
предательница Крыма, поддерживает преступный Майдан. На ее
совести кровь и жизни убитых людей. Получает деньги в общественной
организации, финансируемой американскими спецслужбами, Прошла
обучение экстремизму в США].
16 Lessons from Russia’s Operations in Crimea and Eastern Ukraine
to action, suggesting people sign a government petition and demand
greater autonomy in Crimea.
Characteristics of the Crimean Operation
Russian operations in Crimea represented, by all accounts, an efficient
seizure of territory from another state executed with speed and competency.
However, the lack of resistance on the Ukrainian side presents
important caveats to that assessment. The next section discusses
noteworthy structural conditions, decisions, and variables that enabled
Russian success or became a hindrance. We consider such aspects as
history, geography, language, and social factors, along with existing
military agreements, forces in place, and decisions made by Ukrainian
authorities during the crisis.
Russian-Crimean History
Invasion and annexation are significantly easier if the invading force
is perceived to be friendly and legitimate. Russia’s Black Sea Fleet was
historically based in Crimea; therefore, much of the population viewed
its personnel as a friendly force. Crimea was distinct in that militaries
belonging to two different states were based there. Both were viewed
as legitimate by the population, their presence historically valid. Nikita
Khrushchev and the Supreme Council of the Soviet Union transferred
Crimea from under the government of the Russian Soviet Federative
Socialist Republic to the government of the Ukrainian Soviet Socialist
Republic in 1954. As both republics were a part of the Soviet Union,
the move was largely symbolic and of little practical consequence.
Because of its large Russian population, Crimea’s links with Russia
have remained very important,31 and Russia’s military on the peninsula
represented a bond to Russians on the mainland and was perceived to
be an important part of the economy. Furthermore, the Crimeans had
fewer economic reasons to fear or protest annexation, as incomes, sala-
31 Calamur Krishnadev, “Crimea: A Gift to Ukraine Becomes a Political Flash Point,” NPR,
February 27, 2014.
Annex 1026
Regional Centre for Human Rights, et al., Crimea Beyond Rules:
Thematic Review of the Human Rights Situation under Occupation,
Vol. 3, Right to Nationality (citizenship) (2017)
Crimea
beyond
rules
Thematic review of the human
rights situation under
occupation
Issue № 3
Right to nationality
(citizenship)
UHHRU RCHR CHROT
РЕГІОНАЛЬНИЙ ЦЕНТР ПРАВ ЛЮДИНИ
REGIONAL CENTRE FOR HUMAN RIGHTS
Regional Centre for Human Rights - NGO, the
nucleus of which consists of professional lawyers
from Crimea and Sevastopol, specializing in the field
of international human rights law.
rchr.org.ua
CHROT - expert-analytical group, whose members
wish to remain anonymous.
Some results of work of this group
are presented at the link below :
precedent.crimea.ua
Ukrainian Helsinki Human
Rights Union
Ukrainian Helsinki Human Rights Union - non-profit
and non-political organization. The largest association of
human rights organizations in Ukraine, which unites 29
NGOs, the purpose of which is to protect human rights.
helsinki.org.ua
RCHR
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Dear readers,
Crimean events at the beginning of 2014 have challenged the post-war system of
international security. They stirred up the whole range of human emotions - from the loss of
vital references to the euphoria, from joyful hope to fear and frustration. Like 160 years
ago, Crimea attracted the attention of the whole Europe. In this publication we have tried
to turn away from emotions and reconsider the situation rationally through human
values and historical experience . We hope that the publication will be interesting to
all, regardless of their political views and attitudes towards those events.
S. Zayets
R. Martynovskyy
D. Svyrydova
Table of contents
Introduction 6
1. International standards 7
2. Case law of international courts 16
3. Laws and regulations of Ukraine 20
4. Laws and regulations of the Russian
Federation 22
5. Laws of the so-called “Republic of Crimea” 29
6. Historical materials on citizenship 30
7. Crimean cases 34
8. Analytics 36
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The periodic review ”Crimea beyond rules”, prepared by joint efforts of several organizations and
invited experts, aims to help the international community, human rights organizations, international
and national bodies and structures as well as anyone who wants to better understand the human
rights situation in Crimea.
Each review is themed around a specific topic and includes a number of analytical articles,
references to international regulations, standards and legislation relating to the chosen themes as
well analysis of prospects for potential complaints or those already filed with the international bodies
for the protection of human rights. The series of thematic reviews ”Crimea beyond rules” is devoted
to the study and description of violations of human rights and rules of international humanitarian law
resulting from the continuing aggressive expansion on the side of the Russian Federation in respect
of Crimea as a part of the territory of Ukraine.
During the occupation and subsequent annexation of the Crimean peninsula, the Russian
Federation announced all Ukrainian nationals living in Crimea its subjects. Residents of the occupied
territory faced a difficult choice. On the one hand, by obtaining Russian passports, they formally took
the oath of allegiance to the State which had committed an act of aggression against their sovereigncountry.
On the other hand, during a short period of time (in fact - 18 days) they could try to submit
the “declaration about the willingness to retain the nationality of Ukraine” to one of the four offices
which accepted such declarations in Crimea. In this case, they suddenly became foreigners at home
and were severely limited in their rights.
Using the imperfection of international standards in this ng situations of statelessness and resolving
cases of dual nationality. Arbitrary change and imposition of a nationality became a new challenge to
which the world was not ready. Having imposed its nationality, the Russian Federation «forced into
loyalty» the population of the occupied peninsula under threat of criminal liability (see. Art. 275 of the
Criminal Code «High Treason»).
It is important to understand that the situation in Crimea is fundamentally different from the current
practice of issuing passports of the Russian Federation nationals on the so-called «unrecognized
territories» (Transnistria, Abkhazia and South Ossetia). Thus, residents of the «unrecognized
territories» may obtain Russian nationality only on its own initiative, by addressing the competent
bodies with the appropriate application. In Crimea, the Russian authorities themselves decided the
nationality issue for more than 2.3 million people, declaring them subjects of the Russian Federation.
The situation regarding the nationality which arose from the annexation of Crimea should also
be distinguished from cases of secession of territories and the succession of States. In cases of
secession or succession there takes place an entirely legitimate transfer of the territory under
the control of another State which is in accordance with international law. At the same time, the
occupation and subsequent annexation of Crimea by the Russian Federation were carried out with
gross violation of these norms, of what the international community has been consistently informing
since March 2014 and calling on the authorities of the Russian Federation to return control over
Crimea to Ukraine. Because of this, any attempt to apply to Crimea the relevant rules concerning the
secession or succession of states are inadmissible.
In the post-war world, a person is more and more recognized as a subject of international law. That
is why a change of nationality of Cri-mean residents can and should be considered in the context
of relations of four actors: Ukraine, as the country of existing nationality, Russia, as the country that
imposes its nationality, the actu-al resident of the Crimean peninsula and the third countries.
The existing practice of various international judicial bodies concerns cases of violations related
to the deprivation of nationality or refusal in its granting. So, in cases related to the imposition of
nationality there can be set new precedents. More information about these and other issues can be
found in the current review.
International law assumes that the occupation is a temporary regime. We are also convinced that
the need for such reviews is provisional. Being optimistic, we believe that the main task of these
materials should be apprehension of what had happened and generalization of experience in order
to prevent further human rights violations in Crimea or other regions of the world.
The authors of the review: the team of human rights activists, experts and scholars from Regional
Centre for Human Rights (rchr.org.ua), Ukrainian Helsinki Human Rights Union (helsinki.org.ua), as
well as expert and analytical group CHROT.
Introduction
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International standards
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights was adopted and proclaimed by resolution
217 A (III) of the UN General Assembly on 110 December 1949 and is an act of the so-called
«soft law». However, compliance with the obligations under the Declaration is the subject of
continuous monitoring by the international community, even if its provisions are not reflected
in the texts of other, more binding international instruments.
In particular, along with other documents, the Declaration provisions are the foundation of
the Universal Periodic Review (UPR), and its violation can be the reason for individual appeals
to the United Nations Human Rights Council in accordance with the Human Rights Council
Resolution 5/1 of 18 June 2007 (former procedure 1503).
Article 15 of the Universal Declaration of Human Rights guarantees the right of every person
to a nationality, and also prohibits the arbitrary deprivation of the nationality or the right to
change it.
The full text of the document can be found following the link1.
International Covenant on Civil and Political Rights
The Covenant was adopted by resolution 220 A (ХХI) of the UN General Assembly on
16 December 1966. Ukraine (at that time - the USSR as an independent member of the UN)
signed the Covenant on 20 March 1968 and ratified it on 19 October 1973.
Russia, not being an independent member of the UN, has inherited the obligations under the
Covenant as the legal successor of the Soviet Union. The Soviet Union signed the document
on 18 March 1968. Presidium of the Supreme Council of the USSR ratified it on 18 September
1973.
The document entered into force in Ukraine and the Soviet Union (and respectively in the
Russian Federation) simultaneously, on 23 March 1976.
ARTICLE 24
[…]
3. Every child has the right to acquire a nationality.
The full text of the document can be found following the link2.
Convention relating to the Status of Stateless Persons
The Convention was adopted in New York on 28 September 1954 by the Conference of
Plenipotentiaries convened in accordance with resolution 526 A (XVII) of the Economic and
Social Council on 26 April 1954. It entered into force on 6 June 1960. It was ratified by Ukraine
on 11 January 2013 and entered into force for it on 23 June 2013.
The Russian Federation is not a party to the Convention.
The Convention provides a definition of the concept of a stateless person, declares rights,
obligations of persons who are not citizens of any state, by setting that the treatment of such
persons can not be worse than that of the citizens of the state in which they find themselves
(e.g. in terms of freedom to practice their religion), or to foreign nationals residing in the
territory of such state. It also regulates the issues of movable and immovable property,
copyrights and industrial rights of stateless persons, their associations and the right to appeal
to the courts (Chapter II). In addition, Chapters III and IV regulate the employment and social
security, and Chapter V regulates administrative measures (freedom of movement, identity
1 http://www.ohchr.org/en/udhr/pages/language.aspx?langid=eng
2 http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
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documents, travel documents, taxes, removal of property, deportation, naturalization).
The full text of the document can be found following the link3.
Convention on the Reduction of Statelessness
The Convention was adopted and signed in New York on 30 August 1961 pursuant to
resolution 896 (IX), adopted by the General Assembly of the United Nations on 4 December
1954. The Convention entered into force on 13 December 1975. It was ratified by Ukraine on
11 January 2013 and entered into force for it on 23 June 2013.
The Russian Federation is not a party to this Convention.
The Convention requires States to grant their nationality to a stateless person and prohibits
to deprive a person of his nationality, if such deprivation would render him stateless. An
exception is made in the context of loyalty relations: the demonstration of disloyalty by
nationals empowers the State to deprive them of nationality regardless of the consequences.
ARTICLE 8
1. A Contracting State shall not deprive a person of his nationality if such deprivation would
render him stateless.
2. Notwithstanding the provisions of paragraph 1 of this article, a person may be deprived of
the nationality of a Contracting State:
(a) In the circumstances in which, under paragraphs 4 and 5 of article 7, it is permissible that
a person should lose his nationality;
(b) Where the nationality has been obtained by misrepresentation or fraud.
3. Notwithstanding the provisions of paragraph 1 of this article, a Contracting State may
retain the right to deprive a person of his nationality, if at the time of signature, ratification or
accession it specifies its retention of such right on one or more of the following grounds, being
grounds existing in its national law at that time:
(a) That, inconsistently with his duty of loyalty to the Contracting State, the person:
(i) Has, in disregard of an express prohibition by the Contracting State rendered or continued
to render services to, or received or continued to receive emoluments from, another State, or
(ii) Has conducted himself in a manner seriously prejudicial to the vital interests of the State;
(b) That the person has taken an oath, or made a formal declaration, of allegiance to
another State, or given definite evidence of his determination to repudiate his allegiance to
the Contracting State.
The full text of the document can be found following the link4.
International Convention on the Elimination of All Forms of Racial Discrimination
The Convention was adopted by resolution 2106 (XX) of the UN General Assembly on 21
December 1965, signed on 7 March 1966 and entered into force on 4 January 1969. The
Ukrainian Soviet Socialist Republic signed the Convention on 7 March 1966. The Presidium of
the Supreme Soviet of the Ukrainian SSR ratified it on 21 January 1969, and on 7 April 1969 it
entered into force for Ukraine.
Russian Federation, not being at that time an independent member of the UN, inherited the
obligations of the Convention as the legal successor of the USSR. The Soviet Union signed
the document on 7 March 1966. The Presidium of the Supreme Soviet of the USSR ratified it
on 22 January 1969, and on 4 March 1969 it entered into force.
3 http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
4 http://www.ohchr.org/EN/ProfessionalInterest/Pages/Statelessness.aspx
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ARTICLE 1
[…]
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences
made by a State Party to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions
of States Parties concerning nationality, citizenship or naturalization, provided that such
provisions do not discriminate against any particular nationality.
[…]
ARTICLE 5
In compliance with the fundamental obligations laid down in article 2 of this Convention,
States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and
to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic
origin, to equality before the law, notably in the enjoyment of the following rights:
[…]
(d) Other civil rights, in particular:
[…]
(iii) The right to nationality;
[…]
The full text of the document can be found following the link5.
The Convention on the Rights of the Child
Convention was adopted by resolution 44/25 of the UN General Assembly on 20 November
1989 and entered into force on 2 September 1990. The Ukrainian Soviet Socialist Republic
signed the Convention on 21 February 1990, and ratified the decision of the Verkhovna Rada
of the Ukrainian SSR on 27 February 1991. For Ukraine, the Convention entered into force on
27 September 1991.
The Russian Federation, not being at that time an independent member of the UN, has
inherited the obligations of the Convention as the legal successor of the USSR. The Soviet
Union signed the document on 26 January 1990, the Supreme Soviet of the USSR ratified it
on 13 June 1990 and on 15 September 1990, the Convention entered into force.
The Convention is particularly interesting, because it considers nationality as one of the
elements of identity. It is difficult to assume that upon reaching adulthood, a nationality
becomes irrelevant. This provision can be used as a key to the consideration of certain issues
of nationality in the context of the right to respect for private life.
ARTICLE 7
1. The child shall be registered immediately after birth and shall have the right from birth to a
name, the right to acquire a nationality and. as far as possible, the right to know and be cared
for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this field, in
particular where the child would otherwise be stateless.
ARTICLE 8
1. States Parties undertake to respect the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized by law without unlawful
interference.
[…]
The full text of the document can be found following the link6.
5 http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx
6 http://www.ohchr.org/en/professionalinterest/pages/crc.aspx
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The Convention on Certain Questions relating to the Conflict of Nationality Laws
The Convention was signed in the Hague on 12 April 1930. It entered into force on 1 July
1937 from the date of the deposit of instruments of ratification or accession on behalf of
ten members of the League of Nations or non-members of the League of Nations states.
The Soviet Union at the time did not sign and ratify it; respectively, Ukraine and the Russian
Federation are not parties to this international treaty, but its provisions could be used as a
source of customary law.
Chapter I of the Convention establishes the general principles applicable to matters relating
to the Conflict of Nationality Laws. These include, in particular:
- the right of each State to determine under its own law who are its nationals. At the
same time, this law shall be recognized by other States in so far as it is consistent with
international conventions, international custom, and the principles of law generally
recognized with regard to nationality (Art. 1);
- the right of each State to determine any question as to whether a person possesses the
nationality of a particular State in accordance with the law of that State (Art.2);
- the right of each State to regard as its national a person having two or more nationalities
(Art. 3);
- an inability of the State to afford diplomatic protection to one of its nationals against a
State whose nationality such person also possesses (Art. 4);
- the right of a third State to treat a person having more than one nationality as if he had
only one, the nationality of the country in which he is habitually and principally resident,
or the nationality of the country with which in the circumstances he appears to be in fact
most closely connected (Art. 5);
- the right of a person to renounce one of two nationalities if this nationality was acquired
without any voluntary act on his part (Art. 6).
The full text of the document can be found following the link7.
UN General Assembly Resolution 55/153 of 30 January 2001 On nationality of natural
persons in relation to the succession of States
Resolution was adopted on the basis of articles on nationality of natural persons in relation
to the succession of States prepared by the International Law Commission the Article 3 of
that document expressly provides that «the present articles apply only to the effects of a
succession of States occurring in conformity with international law and, in particular, with the
principles of international law embodied in the Charter of the United Nations.»
The resolutions of the UN General Assembly following the occupation of Crimea recognized
that the actions of the Russian Federation violated the principles of international law.
Thus, the Russian Federation has no legal grounds for references to articles on nationality of
natural persons in relation to the succession of States in support of their actions in relation to
the imposition of nationality of the Russian Federation to all nationals of Ukraine who resided
and were registered in the territory of the Crimean peninsula at the time of its annexation and
occupation by the Russian Federation.
The full text of the document can be found following the link8.
7 http://eudo-citizenship.eu/InternationalDB/docs/Convention%20on%20certain%20questions%20relaing%20to%20
the%20conflict%20of%20nationality%20laws%20FULL%20TEXT.pdf
8 http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/55/153
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Declaration on the human rights of individuals who are not nationals of the country in
which they live
The Declaration was adopted by resolution 40/144 of the UN General Assembly on 13
December 1985.
The Declaration proclaims the right of aliens to life and security of person, to protection from
interference with privacy and family life, including in respect of home and correspondence;
the right to be equal before the courts; the right to choose a spouse, to marry, to found a
family; the right to freedom of thought, opinion, conscience and religion, as well as other
rights as defined in Part 1 of Article 5 of the Declaration.
Part 2 of the same Article declares the following rights of aliens: the right to leave the
country; the right to freedom of expression; the right of peaceful assembly; the right to own
property alone as well as in association with others, subject to domestic law.
Article 8 defines the rights of aliens lawfully residing in the territory of a State. They, in
particular, have the right to appropriate working conditions, fair wages and equal remuneration
for work, the right to join trade unions, the right to health protection, medical care, social
security, social services, education and recreation.
The full text of the document can be found following the link9.
The European Convention on Nationality
The Convention was signed on 6 November 1997 and entered into force on 1 March 2000.
Ukraine signed the Convention on 1 July 2003, ratified it on 20 September 2006. The
Convention entered into force for Ukraine on 1 April 2007.
The Russian Federation signed this Convention on 6 November 1997, but has not ratified it.
The Convention establishes guarantee of the right to a nationality for each person as well as
a guarantee in order to avoid cases of statelessness, arbitrarily deprivation of nationality, lack
of automatic consequences in relation to a nationality of a spouse, regardless of change in
marital status or change of the nationality by the other spouse (Art. 4). This can be considered
as an element of respect for the will of persons while changing the nationality.
It also sets out the grounds for the acquisition and deprivation of nationality, especially
loss of nationality at the initiative of the individual, a simplified procedure for the recovery of
nationality by former nationals, procedures relating to nationality, cases of multiple nationality,
rights and duties related to multiple nationality.
It should be noted that the ratification of this Convention has been made by Ukraine with
reservations. In particular, in the Law of 20 September 2006 № 163-V «On ratification of the
European Convention on Nationality» Ukraine declared that it excludes Chapter VII from the
scope of the Convention.
The provisions of this chapter provide that persons possessing the nationality of two or
more parties to the Convention shall be required to fulfil their military obligations in relation
to one of those States Parties only.
In practice, this may mean that persons who had to obtain a Russian passport in the
occupied territory of the Autonomous Republic of Crimea and Sevastopol and were called
up for military service in the Armed Forces of the Russian Federation, after the performance
of such a service can be conscripted for military service in the Armed Forces of Ukraine.
However, this clause does not matter in relation to the Russian Federation, because the
Russian Federation is not a party to that Convention. Attention should also be paid to the
explanatory report at the end of the text of the Convention on the official website of the
Verkhovna Rada of Ukraine.
9 http://www.un.org/ga/search/view_doc.asp?symbol=a/res/40/144
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The text of the Law on ratification can be found following the link10.
The full text of the Convention in English can be found following the link11.
The full text of the Convention in Ukrainian, with the explanatory report mentioned above
can be found following the link12.
The UN General Assembly Resolution the action of Israel in the Syrian Golan
The UN General Assembly has repeatedly assessed the Israeli practices in the occupied
territories (see, for example, this resolution ). Special attention shall be drawn to the Resolution
A/RES/55/134 of 8 December 2000, which urged to refrain from imposing Israeli citizenship
and Israeli identity cards on the Syrian citizens in the Syrian Golan occupied by Israel .
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights)
The Convention was signed in Rome on 4 November 1950 and entered into force on 3
September 1953.
Ukraine ratified the Convention on 17 July 1997. The Convention entered into force for
Ukraine on 11 September 1997.
Russia ratified the Convention on 30 March 1998. The Convention entered into force for the
Russian Federation on 1 August 1998.
The European Court of Human Rights has repeatedly stressed that the Convention does
not protect the right to a nationality. Indeed, the Convention does not contain a provision,
which would fully or partially reproduce the provisions of Art. 15 of the UDHR. However, the
Court has repeatedly considered cases, where it recognized that in some situations, issues
related to the deprivation of nationality may affect matters within the scope of Art. 8 of the
Convention (right to respect for private and family life) and even discrimination (Art. 14 in
conjunction with Art. 8 of the Convention).
In particular, the interest in this aspect is presented in the cases Genovese v. Malta, no.
53124/09, § 30, 11 October 2011 and Kuric and Others v. Slovenia, no. 26828/06, 26 June 2012.
Nevertheless, it appears that the imposition of Russian nationality as a result of the
occupation of Crimea may also raise new issues in the context of Art. 8 of the Convention. In
particular, this may be related to issues of national identity and forced loyalty (see, in particular,
comments on the Convention on the Rights of the Child and on Art. 275 of the Criminal Code
of the Russian Federation).
Judgments of the European Court of Human Rights
A brief summary of the three most typical judgments of the European Court regarding
important human rights issues in the context of citizenship, is given below. The Court itself
notes in these judgments that initially ECtHR denied the admissibility of cases related to
issues of citizenship, given that “the Convention does not guarantee the right to citizenship.”
Nevertheless, the case law has evolved whereby the issues of this category have come in
view of the Court. These cases are characterised by the fact that
the Court does not evaluate national authorities’ actions or decisions on determination of
the applicants’ citizenship as such, but carefully considers consequences of these decisions
and their impact on the lives of the applicants in the context of Article 8 of the Convention.
In particular, the Court found no violation of Art. 8 of the Convention in cases RAMADAN v.
MALTA and GENOVESE v. MALTA, since the decisions of national authorities were rather
formal, and had no real impact on the lives of the applicants. For example, in the case
10 http://www.un.org/ga/search/view_doc.asp?symbol=a/res/40/144
11 http://www.coe.int/ru/web/conventions/full-list/-/conventions/rms/090000168007f2c8
12 http://zakon3.rada.gov.ua/laws/show/994_004/
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RAMADAN v. MALTA the applicant, even though deprived of his Maltese citizenship, was not
expelled from the country, deprived of his job, he had no documents seized and did not suffer
any other serious consequences. Similarly, the case GENOVESE v. MALTA concerned only a
request of the applicant’s mother for her child to be granted Maltese citizenship despite the
fact that they resided in Scotland . In contrast, in the case KURIĆ AND OTHERS v. SLOVENIA
the consequences of the authorities’ decisions were enormous for applicants and affected
all their lives.
In the context of the situation of the imposition of Russian citizenship to residents of Crimea
the consequences of such decision can be significant for possible lodging of complaints with
the European Court. Technically, the attribution of Russian citizenship to Crimean residents
looks like granting them additional rights, and not depriving of them. But in fact, these
“additional rights” are a heavy burden for many people. Many people perceive the imposed
identification of Crimean Ukrainians as citizens of the Russian Federation in the context of the
ongoing conflict very painful. But these consequences are not limited to the inner discomfort
only: like any other citizens of the Russian Federation (and citizens only!), they are liable
under Art. 275 of the Criminal Code of the Russian Federation for treason against the State in
the event of demonstrating loyalty to Ukraine. This means that if they are not required to be
directly loyal to the Russian authorities, still they must refrain from any active manifestation of
disloyalty. However, it should be understood that those of the Crimean people who decided
and managed to declare “the desire to keep the existing citizenship of Ukraine” found
themselves in the position of the applicants in the case KURIĆ AND OTHERS v. SLOVENIA.
CASE OF RAMADAN v. MALTA
(21 June 2016, Application no. 76136/12)
The case was examined by the European Court of Human Rights upon the complaint about
the applicant’s deprivation of Maltese citizenship in the context of Art. 8 of the Convention.
The applicant was deprived of his citizenship on the grounds that he had obtained it by fraud.
As a result, he became an apatride (a stateless person).
In this regard, the Court emphasized that an arbitrary denial of a citizenship might in certain
circumstances raise an issue under Art. 8 of the Convention because of the impact of such
denial on the private life of the individual. Although, in this case the Court found no violation
of the Convention, the conclusion that the consequences of changes of nationality ratione
materiae fall within the Art. 8 of the Convention is significant in the context of this review.
The Court also underlines that the private life is a concept that is wide enough to embrace
aspects of a person’s social identity.
In this case, the Court reiterated that the Convention does not guarantee the right to
citizenship. However, in this case likewise in others, the Court draws attention not to the fact
of deprivation of citizenship, but on the related (derived) changes in the applicant’s private life.
The full text of the judgment can be found following the link13.
CASE OF GENOVESE v. MALTA
(11 October 2011, Application no. 53124/09)
The case was examined by the European Court of Human Rights upon the complaint about
the refusal of the Maltese authorities to recognize the applicant’s right to Maltese citizenship.
The applicant was an illegitimate son of a citizen of the United Kingdom and a citizen of Malta.
The father refused to acknowledge the applicant to be his son and his mother had to prove the
paternity in court. Nevertheless, in spite of the fact established in court, that the father of the
child was a citizen of Malta, the Maltese authorities refused to recognize the child as its citizen.
On highlighting that the right to citizenship is not as such a Convention right, the Court also
noted that its denial in the present case was not such as to give rise to a violation of Article
13 http://hudoc.echr.coe.int/eng?i=001-163820
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8 of the Convention. Nevertheless, the Court concluded that the impact of citizenship on
social identity was such as to bring it within the general scope and ambit of Article 8 of the
Convention in the aspect of the right to respect for private life.
The full text of the judgment can be found following the link14.
CASE OF KURIĆ AND OTHERS v. SLOVENIA
(12 March 2014, Application no. 26828/06)
This case was examined by the Grand Chamber of the European Court of Human Rights
upon the complaint of several former citizens of Yugoslavia against the actions of Slovenia,
as a result of which the applicants lost their status of citizens and the formal right to stay in
this country. Although the individual situation of each applicant differed, they were all united
by the fact that they were living in Slovenia at the time of the proclamation of independence
of the Republic (after the dissolution of Yugoslavia) and did not express their will regarding
its future status (did not acquire citizenship of Slovenia, and did not apply for a permission to
stay). After a while, the Slovenian authorities cleared the records of the applicants as persons
legally residing in the country, whereupon they were deprived of many rights, which they
enjoyed previously and which were granted to the citizens (the right to work, social benefits,
access to health care, the ability to replace lost documents, etc.), and in some cases they even
run a risk of expulsion. Thus, the authorities’ decision on the applicants’ status as citizens or
residents of the country had a profound impact on the whole range of their rights.
The Court concluded that the impact of such decision of the authorities on personal and
family life of the applicants did not comply with the guarantees of Article 8 of the Convention.
The full text of the judgment can be found following the link15.
The American Convention on Human Rights
The Convention was adopted at the Inter-American Conference on Human Rights on 22
November 1969 in San Jose. It entered into force on 18 July 1978.
This Convention establishes a regional human rights protection system similar to the
European one. The text of the Convention reflects the specific approach to human rights
typical for the American continent. At the same time, the right to a nationality was included
to the catalog of human rights as a separate item after the Universal Declaration of Human
Rights. In this issue American Convention differs from the European Convention on Human
Rights, where the European Court with great difficulty recognizes the right to a nationality as
a circumstance pertaining to personal or family life (see the relevant section in the analytical
materials).
ARTICLE 20. RIGHT TO NATIONALITY
1.Every person has the right to a nationality.
2.Every person has the right to the nationality of the state in whose territory he was born if
he does not have the right to any other nationality.
3.No one shall be arbitrarily deprived of his nationality or of the right to change it.
The full text of the Convention can be found following the link16.
Convention with respect to the laws and customs of war on land
(The Hague Convention IV)
This Convention is one of the documents adopted at the Peace Conferences in the Hague
in the years 1899 and 1907. The document was adopted on 18 October 1907. For the Russian
14 http://hudoc.echr.coe.int/eng?i=001-106785
15 http://hudoc.echr.coe.int/eng?i=001-111634
16 http://www.hrcr.org/docs/American_Convention/oashr5.html
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Federation the document came into force on 21 November 1909, for Ukraine – on 29 May
2015. Adoption of the Convention was seen as the embodiment of the rules of customary
international law. Consequently, they are also binding for states that are not formally parties
to the Convention. The rules laid down in the Regulation, have been partially confirmed and
developed in the Additional Protocols of 1977 to the Geneva Conventions of 1949.
ARTICLE 45 OF REGULATIONS RESPECTING THE LAWS AND CUSTOMS OF WAR
ON LAND (THE HAGUE REGULATION).
It is forbidden to compel the inhabitants of occupied territory to swear allegiance to the
hostile Power.
The full text of the Convention can be found following the link17.
The Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War
The Fourth Geneva Convention was adopted on 12 August 1949 under the auspices of
the International Committee of the Red Cross. It entered into force on 21 October 1950. The
participants of the Convention (as well as the other three Geneva Conventions, adopted on
the same day in 1949) are all the nations of the world. The Convention contains provisions
on the protection of the civilian population in the context of armed conflict, in particular the
occupation.
Article 67 of the GC IV provides that the occupying military courts shall take into consideration
the fact the accused is not a national of the Occupying Power. It is customary to interpret this
provision in the sense that persons who prior to the occupation had nationality of a State
possessing sovereignty over the relevant territory retain it18.
Forced recruitment of residents of the occupied territory into the armed forces of the
occupying Power is a serious violation of international humanitarian law and a war crime (see.
Wagner precedent19, Berger precedent20, Article 147 of the GC IV, Art. 8 (2) (a) (v ) of the Rome
Statute of the International Criminal Court21).
ARTICLE 47
Protected persons who are in occupied territory shall not be deprived, in any case or in any
manner whatsoever, of the benefits of the present Convention by any change introduced,
as the result of the occupation of a territory, into the institutions or government of the said
territory, nor by any agreement concluded between the authorities of the occupied territories
and the Occupying Power, nor by any annexation by the latter of the whole or part of the
occupied territory.
ARTICLE 68
[…]
The death penalty may not be pronounced against a protected person unless the attention
of the court has been particularly called to the fact that since the accused is not a national of
the Occupying Power, he is not bound to it by any duty of allegiance.
[…]
The full text of the Convention can be found following the link22.
17 https://ihl-databases.icrc.org/ihl/INTRO/195
18 Dinstein Y. The International Law of Belligerent Occupation. — Cambridge, 2009. — P. 53.
19 http://www.worldcourts.com/ildc/eng/decisions/1946.05.03_France_v_Wagner.pdf
20 http://www.worldcourts.com/imt/eng/decisions/1949.04.13_United_States_v_Weizsaecker.pdf#search=%22weizsaecer%22
21 https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
22 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&
action=openDocument
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Robert Wagner Case
In the summer of 1940, Robert Wagner was appointed by Hitler to be a Gauleiter23 and at the
same time the imperial viceroy in occupied France Alsace for the purpose of germanization
and nazification of the region. Prior to that, Wagner served as Gauleiter and the governor of
Baden. In the early years of the German occupation he made many attempts to encourage
the Alsatians to voluntarily serve in the German army. In general, for the German side the
idea of recruiting volunteers failed (only about 2,300 people, mostly Germans of Alsace
responded to the call). The solution to this problem was the introduction of conscription.
Conscription was introduced in Alsace by the Order of 25 August 1942. In accordance with
section 1 of the Order compulsory military service in the German armed forces for all Alsatians
of German nationality was introduced in Alsace. The Order was made public simultaneously
with the Decree on acquisition of German nationality by all Alsatians. This Decree was
issued by the Minister of Internal Affairs of the Third Reich on 23 August 1942, and also was
applied to the population of Lorraine and Luxembourg. These measures were approved by
the Supreme Command of the Wehrmacht, in particular, Hitler and Keitel. Consequently, the
spread of German citizenship entailed an obligation for the population of these territories to
serve in the German army.
On 29 July 1945 Wagner was arrested by US occupation forces and handed over to the
French authorities. On 23 April 1946 he was brought before the Permanent Military Tribunal
in Strasbourg. The Tribunal charged Wagner, in particular, with the instigation of the French
to take up arms against France, as well as with organization of recruitment of the French into
the enemy (German) army. As a result, on 3 May 1946 the tribunal sentenced Robert Wagner
to death and confiscation of all property in favor of the people.
Gottlob Berger Case
Gottlob Berger was brought to trial by the American Military Tribunal at Nuremberg in the
case of «Wilhelmstrasse». On 1 April 1940, Berger was appointed Chief of the SS Main Office,
and in July 1942 became Himmler’s liaison officer for the Ministry of the Occupied Eastern
Territories. Also, at various times he served as commander of the reserve forces, the head
of the Service for Prisoners of War in Germany, the chief of staff of the German Volkssturm
(People’s Volunteer Corps) and General of the Waffen-SS.
Regarding Berger through a judicial process in the clearest possible terms, it was noted that,
“the program implemented in Serbia and Croatia was also carried out in Latvia, Lithuania,
Poland, Russia, Luxembourg, Alsace and Lorraine. Without a doubt, defendant Berger is
guilty of committing crimes against humanity by the fact that he and his departments were
involved in forcing the citizens of these countries to the Germanization or other methods for
the purpose of recruitment into the German armed forces”.
On 11 April 1949 the American Military Tribunal sentenced Gottlob Berger to 25 years in
prison.
These precedents again prove the fact that the right to a nationality and violation of this
right is closely linked to other human rights violations, right up to international crimes, which
is the forced recruitment of inhabitants of the occupied territory into the armed forces of the
occupying Power.
Nottebohm Case24
International Court of Justice in its famous judgment in the Nottebohm case of 6 April 1955,
said that it is the sovereign right of each State to decide who are its nationals, provided
23 Gauleiter was the party leader of a regional branch of the National Socialist German Workers’ Party
24 http://www.icj-cij.org/docket/files/18/2674.pdf
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that this process must be properly regulated by international law. International Court of
Justice has upheld the principle of «effective nationality”, that which accorded with the facts
and based on stronger factual ties between the person concerned and one of these States
whose nationality is involved. These factors include the habitual residence of the individual
concerned but also the centre of his interests, his family ties, his participation in public life,
attachment shown by him for a given country and inculcated in his children, etc.
Case of Yean and Bosico v. Dominican Republic25
The Inter-American Court of Human Rights in its judgment in the case of Yean and Bosico
v. Dominican Republic acknowledged the ethnic discrimination of citizens of the Dominican
Republic of Haitian descent and confirmed, as enshrined in the aforementioned American
Convention on Human Rights, the right of every person to citizenship as a prerequisite for
equal enjoyment of all rights in the society. Inter-American Court in its decision also noted
that the regulation of nationality issues is the responsibility of the state, but international law
imposes certain restrictions on the implementation of such powers. The Court upheld this
argument in another case of Ivcher-Bronstein v. Peru26, but also noted27 that the right to a
nationality is an inalienable right of all people and has an important influence on the legal
existence of a natural person.
Joint statement of the participants of the Conference of European Constitutional
Courts concerning respect for territorial integrity and international law in administering
constitutional justice of 10 September 2015
(Batumi Declaration)
The Constitutional Court of the Russian Federation played its role in the formal recognition of
the annexation, having considered the so-called “treaty on the accession of Crimea” in terms
of its constitutionality, and spoke in favor of the legality of admitting the so-called “Republic of
Crimea” and the “City of Federal Importance Sevastopol” to the Russian Federation (see the
relevant section in the Russian legislation). At the same time the Constitutional Court of the
Russian Federation also assessed provisions regarding citizenship of the Crimean residents
(see below the section in the Russian legislation).
The position of the Constitutional Court of the Russian Federation was condemned by some
participants of the Conference of European Constitutional Courts, which was held in Batumi in
September 2015. In particular, on 10 September 2015, there was signed the so-called Batumi
Declaration, which noted that the Constitutional Court of the Russian Federation formally
had a decisive role in the process of annexation of the Crimean Peninsula, and without its
judgment the annexation could not be recognized as lawful under national Russian legislation
(the illegality of the annexation in the context of international law is not in question in the text
of the declaration).
The full text of the document can be read below in this review
25 http://www.refworld.org/docid/44e497d94.html
26 http://www.corteidh.or.cr/docs/casos/articulos/seriec_74_ing.pdf
27 http://www.corteidh.or.cr/docs/opiniones/seriea_04_ing.pdf
JOINT STATEMENT CONCERNING RESPECT FOR TERRITORIAL INTEGRITY
AND INTERNATIONAL LAW IN ADMINISTERING CONSTITUTIONAL JUSTICE
As it is known, on 19 March 2014, the Constitutional Court of the Russian Federation
passed the judgment in the case «On the verification of the constitutionality of the
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international treaty, which has not yet entered into force, between the Russian Federation
and the Republic of Crimea on the accession of the Republic of Crimea to the Russian
Federation and the formation of new constituent entities within the Russian Federation».
By that unprecedented judgment, the Constitutional Court of the Russian Federation
recognised that the agreement between the Russian Federation and the so-called
«Republic of Crimea», located in the territory of Ukraine, is an international treaty, as well
as that the so-called «Republic of Crimea» has the status of an international legal entity.
It is important to note’ that the Constitutional Court of the Russian Federation
formally has a decisive role in the process of the annexation of foreign territories. Under
Paragraph 1 of Article 8 of the Federal Constitutional Law of the Russian Federation
«On the Procedure of Admission to the Russian Federation and Creation of a New
Subject of the Russian Federation in Its Composition», an international treaty on the
accession of a new entity to the Russian Federation may be ratified only after the
Constitutional Court of the Russian Federation rules such a treaty to be in compliance
with the Constitution of the Russian Federation. Thus, under the Russian legislation,
the above-mentioned judgment was necessary in order to formally annex part of the
territory of Ukraine — Crimea and the City of Sevastopol. Without that judgment, the
annexation of Crimea and the City of Sevastopol could not be formally accomplished.
Therefore, the Constitutional Court of the Russian Federation, by adopting its judgment
of 19 March 2014 within one day after the so-called «Treaty» was signed, performed an
instrumental role in accomplishing and justifying the annexation of Crimea.
We recall that, under international law, such annexation of a foreign territory is a
manifestation of aggression and cannot be justified by any consideration.
In this context, it should be noted that not a single European state has recognised
this annexation and that the general international consensus as to the illegality of the
«Crimean referendum» and the annexation of Crimea is, inter alia, expressed in United
Nations General Assembly Resolution no. 68/262 «The territorial integrity of Ukraine»
(2014), Parliamentary Assembly of the Council of Europe Resolutions no. 1988 «Recent
developments in Ukraine: threats to the functioning of democratic institutions» (2014),
no. 1990 «Reconsideration on 2
substantive grounds of the previously ratified credentials of the Russian delegation»
(2014) and no. 2034 «Challenge, on substantive grounds, of the still unratified
credentials of the delegation of the Russian Federation» (2015), European Parliament
Resolution no. 2014/2699(RSP) «On Russian pressure on Eastern Partnership countries
and in particular destabilisation of eastern Ukraine» and the OSCE Parliamentary
Assembly Resolution «The continuation of clear, gross and uncorrected violations of
OSCE commitments and international norms by the Russian Federation» (2015). The
conclusions concerning the illegality of the «Crimean referendum» were also stated in
the Opinion of the European Commission for
Democracy through Law (Venice Commission) on «Whether the decision taken by
the Supreme Council of the Autonomous Republic of Crimea in Ukraine to organise a
referendum on becoming a constituent territory of the Russian Federation or Restoring
Crimea’s 1992 Constitution is compatible with constitutional principles» (2014).
We consider that the judgment of 19 March 2014 of the Constitutional Court of the
Russian Federation amounts to a grave violation of international law (the universally
recognised norms of international law, including those consolidated in the 1945
Charter of the United Nations, the 1970 Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States in accordance with the
Charter of the United Nations, the 1975 Final Act of the Conference on Security and
Cooperation in Europe). Consequently, it may be concluded that this judgment is not
in accordance with the fundamental principle of the rule of law, which obliges courts to
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comply with the general principles of law, the main principles of international law and
the values of democratic constitutional order,
We reiterate that the Statute of the Conference of European Constitutional Courts
makes the full membership of European Constitutional Courts in this organisation
conditional upon the conduct of judicial activities by its members in accordance with
the principle of judicial independence, the fundamental principles of democracy, the
rule of law and the duty to respect human rights (Paragraph 1 (a) of Article 6),
We, therefore, invite the members of the Conference of European Constitutional
Courts to consider adopting the «Declaration on respect for territorial integrity and
international law in administering constitutional justice», which has been proposed by
the Constitutional Court of Ukraine.
This Joint Statement is open for signature to the memberS of the Conference of
European Constitutional Courts,
Batumi, 10 September 2015
SIGNED BY:
3,
I
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Laws and regulations of Ukraine
Constitution of Ukraine
Date of approval and number: 28 June 1996, no. 254k/96-VR
Effective date: 28 June 1996
ARTICLE 4.
There is single citizenship in Ukraine. The grounds for the acquisition and termination of
Ukrainian citizenship are determined by law.
ARTICLE 25.
A citizen of Ukraine shall not be deprived of citizenship and of the right to change citizenship.
A citizen of Ukraine shall not be expelled from Ukraine or surrendered to another state.
Ukraine guarantees care and protection to its citizens who are beyond its borders.
ARTICLE 26.
Foreigners and stateless persons who are in Ukraine on legal grounds enjoy the same
rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions
established by the Constitution, laws or international treaties of Ukraine. Foreigners and
stateless persons may be granted asylum by the procedure established by law.
ARTICLE 33.
Everyone who is legally present on the territory of Ukraine is guaranteed freedom of
movement, free choice of place of residence, and the right to freely leave the territory of
Ukraine, with the exception of restrictions established by law.
A citizen of Ukraine may not be deprived of the right to return to Ukraine at any time.
The full text of the Constitution can be found following the link28.
Law of Ukraine “On the Unified state demographic register and the documents
confirming citizenship of Ukraine, certifying the identity or its special status”
ARTICLE 13.
Titles and types of documents issued with the application of the Unified state demographic
register.
1. Documents, execution of which is provided by this Law with the application of the Register,
in accordance with their purpose are divided into:
1) documents certifying the identity and confirming citizenship of Ukraine:
a) a Ukrainian passport;
b) a Ukrainian international passport;
c) a diplomatic passport of Ukraine;
d) a service passport of Ukraine;
e) a seafarers’ identity document;
f) a crew member certificate;
g) an ID card to return to Ukraine;
h) a Ukrainian temporary certificate.
The full text of the Law can be found following the link29.
Law of Ukraine “On Citizenship of Ukraine”
Date of approval and number: 18 January 2001, no. 2235-III
28 http://www.coe.int/t/dghl/cooperation/ccpe/profiles/ukraineConstitution_en.asp
29 http://zakon2.rada.gov.ua/laws/show/1601-18
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Effective date: 1 March 2001
Contents: the Law regulates the procedure for acquisition of citizenship, defining the
grounds for such an acquisition (Art. 6), as well as the procedure for termination of citizenship
(Art. 17 voluntary termination of citizenship of Ukraine).
The citizenship of Ukraine is based, in particular, on the principles of a single citizenship,
prevention of statelessness, impossibility of deprivation of citizenship, retention of citizenship,
regardless of the citizen’s place of residence (Art. 2).
The full text of the Law can be found following the link30.
The Law of Ukraine “On Securing the Rights and Freedoms of Citizens and the Legal
Regime on the Temporarily Occupied Territory of Ukraine”
Date of approval and number: 15 April 2014, no. 1207-18
Effective date: 27 April 2014
Contents: Part 1 of Art. 6 of the Law secures the rights of citizens residing in the temporarily
occupied territory for issuance of documents certifying Ukrainian citizenship.
Part 4 of Art. 5 determines that compulsory automatic enrollment of Ukrainian citizens, who
reside in the temporarily occupied territory, to the citizenship of the Russian Federation is not
recognized by Ukraine and is not ground for deprivation of Ukraine’s citizenship.
The full text of the Law can be found following the link31.
The Law of Ukraine «On Creation of the Free Economic Zone «Crimea» and on
Peculiarities of Exercising Economic Activity in the Temporarily Occupied Territories
of Ukraine»
Date of approval and number: 12 August 2014. no. 1636-VII
Effective date: 27 September 2014
Contents: Art. 8.3. of the Law stipulates that state guarantees concerning benefits and social
assistance do not apply to citizens who live in the territory of the FEZ Crimea and are either
stateless or have citizenship of a foreign state, as well as to the citizens of Ukraine who also
have the citizenship of the occupying state. Transitional provisions of the Law established
that foreigners and stateless persons, citizens of Ukraine who live in the temporarily occupied
territory of Ukraine or temporarily staying in the other territory of Ukraine are recognized nonresidents
for the purpose of customs formalities.
The full text of the Law can be found following the link32.
Law of Ukraine “On ensuring the rights and freedoms of internally displaced persons”
Date of approval and number: 20 October 2014, no. 1706-VII
Effective date: 22 November 2014
Contents: IDPs can receive documents certifying their identity, special status and citizenship
if they appeal to the central executive body at the place of their factual residence (Art. 6).
The full text of the Law can be found following the link33.
30 http://www.coe.int/t/dghl/standardsetting/nationality/National%20legislation/Ukraine%20LawCitizenship%20
consol%20June05_ENG.pdf
31 http://mfa.gov.ua/en/news-feeds/foreign-offices-news/23095-law-of-ukraine-no-1207-vii-of-15-april-2014-on-securingthe-
rights-and-freedoms-of-citizens-and-the-legal-regimeon-the-temporarily-occupied-territory-of-ukraine-withchanges-
set-forth-by-the-law-no-1237-vii-of-6-may-2014
32 http://zakon4.rada.gov.ua/laws/show/1636-18
33 https://www.brookings.edu/wp-content/uploads/2016/07/Ukraine-IDP-Law-November-2014.pdf
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Federation
Constitution of the Russian Federation
Date of approval: 12 December 1993
Effective date: 01 October 1993
Contents: Art. 6 stioulates that the citizenship of the Russian Federation shall be acquired
and terminated according to federal law; it shall be one and equal, irrespective of the grounds
of acquisition. Every citizen of the Russian Federation shall enjoy in its territory all the rights and
freedoms and bear equal duties provided for by the Constitution of the Russian Federation. A
citizen of the Russian Federation may not be deprived of his or her citizenship or of the right
to change it.
Art. 62 of the Constitution allows dual citizenship for Russian citizens.
The full text of the Constitution can be found following the link34.
Law of the Russian Federation of 28 November 1991 no. 1948-I “On Citizenship of the
Russian Federation”
The Law on Citizenship was adopted in connection with the proclamation of independence
by the Russian Federation in 1991. In 2002, the text of the Law was redrafted (see below).
Of a particular interest are the provisions on granting Russian citizenship to former USSR
citizens residing in the territory of the Russian Federation on the date of entry into force of this
Law. Persons of this category had the right to declare their unwillingness to have citizenship
of the Russian Federation during a year after the Law came into force. In comparison, the
residents of Crimea were given less than a month to think about this decision, and the period,
during which the opportunity to “express the desire to keep the citizenship of Ukraine” existed
de facto, was less than 18 days.
ARTICLE 13. RECOGNITION OF CITIZENSHIP OF THE RUSSIAN FEDERATION
1. All former Soviet citizens permanently residing in the territory of the Russian Federation
on the date of entry into force of this Law shall be recognized as citizens of the Russian
Federation, unless they declared their unwillingness to have Russian citizenship within one
year after that day.
The full text of the document can be found following the link35.
Federal Constitutional Law “On Admitting to the Russian Federation the Republic of
Crimea and Establishing within the Russian Federation the New Constituent Entities
of the Republic of Crimea and the City of Federal Importance Sevastopol”
Date of approval and number: 20 March 2014, no. 6-FKZ
Effective date: 21 March 2014
Contents: Art. 4 of the FCL regulates the recognition of citizenship of the Russian Federation
for the citizens of Ukraine and stateless persons who permanently reside in the territory of
the Republic of Crimea or Sevastopol. Thus, all Ukrainian citizens and stateless persons who
reside in the territory of the Republic of Crimea or Sevastopol shall be recognized as citizens
of the Russian Federation. Persons willing to retain their nationality or remain stateless must
declare this within 1 month after admitting the Republic of Crimea to the Russian Federation.
Otherwise, citizens shall be recognized as citizens of the Russian Federation without any
second citizenship. In addition, the Law imposes restrictions for holding positions in state
34 http://www.constitution.ru/en/10003000-01.htm
35 http://www.democracy.ru/library/laws/federal/1948-I_fz/
Laws and regulations of the Russian Federation
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Federation
and municipal bodies by the Russian citizens who have a second citizenship or the right of
permanent residence in a foreign country. Art. 11 of the Law also guarantees the citizens of
Ukraine and stateless persons residing in the territory of the Republic of Crimea at the time of
admitting the Republic of Crimea to the Russian Federation the right to social assistance only
in case they acquire Russian citizenship.
Typical form of declaration that was strictly recommended to fulfill by those Crimeans who
wanted to avoid Russian citizenship:
·---------------------
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Federation
Federal Law “On Citizenship of the Russian Federation”
Date of approval, number: April 19, 2002, no. 62-FZ
Effective date: 1 July, 2002
Contents: Art. 4 of the Law contains the principles concerning the citizenship of the Russian
Federation and the rules that regulate relations in the field of the Russian citizenship. In addition,
it defines grounds, conditions and procedure for acquisition and termination of citizenship of
the Russian Federation. Art. 6 of the FL allows dual citizenship for Russian citizens. The list
of grounds for acquisition of citizenship of the Russian Federation is not exhaustive (Art. 11: at
birth, on reinstatement in the citizenship, on admission to the citizenship, etc.).
Arts. 18 and 19 of the Law contain grounds and regulate the manner of renunciation of
citizenship of the Russian Federation on the basis of free will of a person. Art. 20 provides that
renunciation of citizenship shall not be permitted if a person: a) owes an incomplete obligation
towards the Russian Federation, established by the federal laws; b) is under indictment in a
criminal case in the Russian Federation or under a sentence of conviction which has taken
effect and is pending execution; c) possesses no other citizenship and guarantee for the
acquisition thereof.
The full text of the Law can be found following the link36.
36 http://www.consultant.ru/document/cons_doc_LAW_36927/
FMS of Russia
From a citizen________________
___________________________
Date of birth_________________
___________________________
Place of birth_________________
___________________________
Residing in__________________
___________________________
Passport details_______________
Declaration
I____________________________________________________________________
declare the willingness to retain my citizenship of Ukraine (status of a stateless person) for
myself and my minor children __________________________________________________
__________________________________________________________________________
_____________________________
In light of this, I refuse to be recognized (to recognize my minor children) as a citizen of
the Russian Federation according to the Article 5 of the Agreement between the Russian
Federation and the Republic of Crimea on admitting to the Russian Federation the Republic of
Crimea and establishing within the Russian Federation the new constituent entities (Moscow,
March 18, 2014).
I am aware of a legal status of a foreigner, a stateless person and necessity to make relevant
documents, as well as legal consequences of my decision.
______________________ ______________________
(date) (signature)
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Federation
Presidential Decree of the Russian Federation “On approval of the Regulations on the
order of consideration of issues of citizenship of the Russian Federation”
Date of adoption and number: 14 November, 2002, no. 1325 (revised on 4 August, 2016).
Contents: It regulates the procedure for submission and review of documents for
renunciation of citizenship of the Russian Federation.
The following data must be provided among other things in an application for renunciation
of citizenship: series, number, date of issue of a Russian passport and the authority which has
issued this document. A copy of passport must be enclosed to this application.
Thus, the exercise of the right to renounce Russian citizenship is impossible for persons who
have refused to obtain Russian passports and whom the Russian Federation, nevertheless,
considers its citizens.
The full text of the Decree can be found following the link37.
The Agreement between the Russian Federation and the Republic of Crimea on the
Admitting of the Republic of Crimea in the Russian Federation and on Establishing
New Constituent Entities within the Russian Federation
Date of signature: 18 March 2014
Date of ratification: 21 March 2014
Effective date: 1 April 2014
Contents: the Agreement specifies that the citizens of Ukraine and stateless persons
permanently residing on the day the Republic of Crimea was admitted to the Russian
Federation are recognized as citizens of the Russian Federation. An exception are persons
who, within one month from the date of acceptance of the Republic of Crimea into the
Russian Federation declare their desire to maintain their existing citizenship or otherwise
remain stateless. Changes regarding the period of notice have been made to the Federal
Law «On Amendments to Art. Art. 6 and 30 of the Federal Law «On Citizenship of the Russian
Federation” and Certain Legislative Acts of the Russian Federation». The term has been
extended to January 1, 2016.
The full text of the Agreement can be found following the link38.
Decision of the Russian Federation Constitutional Court on 19 March 2014 no. 6-II
“On the constitutionality of the International Agreement, not yet in force, between
the Russian Federation and the Republic of Crimea on admitting to the Russian
Federation the Republic of Crimea and establishing within the Russian Federation the
new constituent entities”
Date of approval: 19 March 2014
Contents: The Court considered the request of the President of the RF on the constitutionality
of the International Agreement concluded between the RF and Crimea. The Court found that
the Agreement corresponds to the Constitution of the RF. It was found that the provision on
granting citizenship of the RF and the obligation to notify dual citizenship or statelessness
is not inconsistent with the Constitution, because it does not compel to renounce another
citizenship or remain stateless while ensuring, if desired, the right to acquire Russian
citizenship without taking any actions for this purpose.
The full text of the decision can be found following the link39.
37 http://www.consultant.ru/document/cons_doc_LAW_39607/0b46424cde96ea7d9427d2c3d28d0bac40dd8cb4/
38 http://pravo.gov.ru/proxy/ips/?docbody=&nd=102171897&rdk=&backlink=1
39 https://goo.gl/dtHuRw
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Federation
Federal Law of the RF “On amendments to Art. 6 and 30 of the Federal Law “On
citizenship of the Russian Federation” and certain legislative acts of the Russian
Federation”
Date of approval and number: 23 May 2014, no. 142-FZ
Effective date: 4 August 2014
Contents: The Federal Law introduces amendments to some legislative instruments
regarding Russian citizens who reside within the boundaries of the Russian Federation and
who have another citizenship or the right of permanent residence in another country. These
citizens shall be obliged to notify in writing of any other citizenship or the right of permanent
residence within 60 days from the date of acquisition of a second citizenship or the right of
permanent residence. The procedure for notification of such citizenship is also regulated.
Violation of the established procedure for notification shall entail the imposition of an
administrative fine (Art.19.8 of the Code of Administrative Offences). The Criminal Code was
amended imposing liability in the form of a fine, forced labor for failure to fulfill a notification
obligation (Art. 330.2 of the Russian Criminal Code). Citizens who acquire Russian citizenship
in accordance with the Agreement on admitting to the RF the Republic of Crimea no. 6-FKZ
shall be deemed to have the Russian citizenship only, in case of filing an application for
their reluctance to be citizens of a foreign state. The deadline for notification of a second
citizenship and punishment for violation of the established procedure for notification, as well
as punishment for failure to notify and concealing dual citizenship is effective from 1 January
2016 (Art. 6 of the Federal Law of the RF “On citizenship”).
The full text of the document can be found following the link40.
Federal Law “On amendments to Art. 6 of the Federal Law “On citizenship”
Date of approval and number: 19 December 2014, no. 507-FZ
Effective date: 31 December 2014
Contents: Art. 6 of the Federal Law “On citizenship” is supplemented with part 3, which
states that citizens who have multiple citizenship and file no notice within 60 days of their
foreign citizenship or the right of residence in a foreign state shall be obliged to submit such
notification not later than 30 days from the date of entry into the territory of the RF. Citizens
who arrive in the Russian Federation in a manner not requiring a visa and on the date of
entry into force of this Law are citizens of that foreign state only shall submit a notification of
another citizenship or the right of permanent residence in other country prior to January 1,
2016.
The full text of the Law can be found following the link41.
Federal Law “On amendments to the Federal Law “On the legal status of foreign citizens
in the Russian Federation” and certain legislative acts of the Russian Federation”
Date of approval and number: 14 November 2014, no. 357-FZ
Effective date: 24 November 2014
In accordance with this Law, foreign citizens staying lawfully in the territory of the Russian
Federation, arriving in the Russian Federation in a manner not requiring a visa and reaching
the age of 18 shall be entitled from January 1, 2015 to be employed on the basis of a work
permit both by individuals and legal entities. Thus, the Crimean people who are not citizens of
the Russian Federation in accordance with the Russian laws shall be obliged to obtain a work
40 https://rg.ru/2014/06/06/grajdanstvo-dok.html
41 https://rg.ru/2015/01/12/grazhdanstvo-dok.html
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Federation
permit. Clarifications on the employment can be found following the link42.
The full text of the Law can be found following the link43.
Decree of the Russian Government dd. October 29, 2015 no. 2197-r on the establishment
of quotas for issuing permits for temporary residence in the Russian Federation to
foreign citizens and stateless persons
In accordance with this Decree, in 2016, the Crimean Federal District (including the “Republic
of Crimea” and Sevastopol) was provided with 1900 temporary residence permits for foreign
citizens and stateless persons (1500 for Crimea and 400 for Sevastopol).
The full text of the document can be found following the link44.
Criminal Code of the Russian Federation
The Criminal Code of the Russian Federation contains two articles that are of direct
relevance to citizenship.
First of all, it is Art. 275 of the Criminal Code of the Russian Federation, which provides for
liability for high treason. The subject of the offense under this Article is a citizen of Russia. This
provision, in addition to direct collection of information constituting a state secret, provides for
liability for rendering any assistance to a foreign state, an international or foreign organization,
or their representatives in activities against the security of the Russian Federation. Obviously,
in the context of the conflict between the Russian Federation and Ukraine the imposition
of Russian citizenship predetermines the prosecution of Crimean people for any active
demonstration of loyalty to Ukraine. Given that the classification of the activities to such that
are directed against the security of the Russian Federation is carried out in a quite subjective
way, this provision predetermines repressions against the Crimean people.
Moreover, the provisions of Art. 330.2 of the Criminal Code of the Russian Federation
provide for liability for failure to notify the Russian authorities of the citizenship (nationality)
of another state. In fact, it is a means of control over possible loyalty of citizens to other
countries.
ARTICLE 275. HIGH TREASON
High treason, that is act of espionage committed by a citizen of the Russian Federation,
disclosure to a foreign state, an international or foreign organization, or their representatives
of information constituting a state secret that has been entrusted or has become known to
that person through service, work, study or in other cases determined by the legislation of the
Russian Federation, or any financial, material and technical, consultative or other assistance
to a foreign state, an international or foreign organization, or their representatives in activities
against the security of the Russian Federation -
shall be punished by deprivation of liberty for a term of twelve to twenty years with or
without a fine in an amount of up to five hundred thousand rubles or in the amount of the wage
or salary, or other income of the convicted person for a period of up to three years and with
restriction of liberty for a term of up to two years.
Note. A person who has committed crimes stipulated in this Article, or Articles 276 and
278 of this Code, shall be relieved from criminal liability if he has facilitated the prevention
of further damage to the interests of the Russian Federation by informing the governmental
authorities of his own free will and in due time, or in any other way, if his actions contain no
other corpus delicti.
42 http://mtrud.rk.gov.ru/rus/info.php?id=622731
43 http://www.consultant.ru/document/cons_doc_LAW_171225/
44 http://government.ru/media/files/WSuem3sXQhKEsRQlJ4CNsW2M1J94eeup.pdf
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ARTICLE 330.2. FAILURE TO COMPLY WITH THE OBLIGATION TO NOTIFY OF THE
CITIZENSHIP (NATIONALITY) OF A FOREIGN STATE OR A RESIDENCE PERMIT
OR ANY OTHER VALID DOCUMENT CONFIRMING THE RIGHT TO PERMANENT
RESIDENCE IN A FOREIGN COUNTRY (PROVIDED BY THE FEDERAL LAW OF
04.06.2014 NO. 142-FZ)
Failure to comply with the obligation determined by the legislation of the Russian Federation
to notify the relevant territorial body within the federal executive body authorized to exercise
the functions of control and supervision in the field of migration about the citizenship (nationality)
of a foreign state or a residence permit or any other valid document confirming the right to
permanent residence in a foreign country - shall be punished by a fine in an amount of up to
two hundred thousand rubles or in the amount of the wage or salary, or other income of the
convicted person for a period of up to one year or by compulsory labor for a term of up to four
hundred hours.
The full text of the document can be found following the link45.
Ruling of the Constitutional Court of the Russian Federation of 4 October 2016 no.
18-P in the case regarding the verification of constitutionality of Part 1, Article 4 of the
Federal Constitutional Law “On admitting to the Russian Federation the Republic of
Crimea and establishing within the Russian Federation the new constituent entities
of the Republic of Crimea and the City of Federal Importance Sevastopol” upon A.G.
Olenev’s complaint
The reason for this decision was the problem that had arisen with respect to getting a
Russian passport by persons who actually lived in Crimea, but were not registered there.
When considering this case, the Constitutional Court of the Russian Federation referred
to the principle of respect for the will of certain persons. According to the authors of this
review, this position does not fit well with the other part of this decision: the Constitutional
Court substantiates its findings with the Russia’s succession to the Crimean Peninsula and
considers the connection of “new citizens” with the annexed territory as a ground for granting
citizenship (this idea is borrowed from the UN General Assembly Resolution on Nationality
of Natural Persons in Relation to the Succession of States). The contradiction in the position
of the Constitutional Court is that if the same principles apply to persons who were officially
registered in Crimea, then their will to be recognized as Russian citizens was rudely ignored,
as they were subjected to mass collective naturalization as something that comes together
with the annexed territory.
The full text of the document can be found following the link46.
45 http://www.consultant.ru/document/cons_doc_LAW_10699/2ca391674eeaa02069722fa3f13cbb41cce0a95d/
46 http://doc.ksrf.ru/decision/KSRFDecision247212.pdf
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Laws of the so-called “Republic of Crimea”
Constitution of the Republic of Crimea
Date of ratification: 11 April 2014
Effective date: 12 April 2014
Contents: Part 3 of Art. 62 of the Constitution defines the head of the Republic of Crimea as
a citizen of the Russian Federation without citizenship of a foreign state or a residence permit
or any other document confirming the right of permanent residence of a Russian citizen in a
foreign country.
The full text of the Constitution of the “RC” can be found following the link47.
47 https://rg.ru/2014/05/06/krim-konstituciya-reg-dok.html
Laws of the so-called “Republic of Crimea”
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German Czechoslovakian treaty relating to citizenship and options of 20 November
193848
This treaty was adopted with the aim to resolve issues of citizenship between Germany
and Czechoslovakia as a result of the occupation of the territory of the latter in October 1938.
Since the end of World War II, due to the insignificance of the Munich agreement on the
division of Czechoslovakia in 1938 all the acts that took the form of an international treaty, in
particular, the said contract would be recognized as invalid.
Despite an early invalidation of the Treaty, there is reason to believe that its adoption
largely affected the «post-war» fate of many Germans living in the occupied territories
of Czechoslovakia. We are talking about the forced eviction of the German minority in
Czechoslovakia who acquired German citizenship before the end of World War II. The eviction
of the civilian population, being illegal from the point of view of modern international law, was
made on the basis of decrees of Czechoslovak president Edvard Beneš.
Thus, in accordance with Beneš Decree of 2 August 1945 regarding the change of the
Czechoslovak citizenship for persons of German and Hungarian ethnic origin, citizens of
Czechoslovakia of German or Hungarian national origin who acquired German or Hungarian
citizenship by the order of the occupation authorities, lost the right to citizenship of
Czechoslovakia on the day of acquiring this citizenship.
The text of the treaty of 20 November 1938
The governments of Germany and Czechoslovakia, willing to settle the issues of citizenship
and options arising from the reunification of Sudeten German areas with the German Reich,
authorized:
on behalf of the German Government – Ministerialdirektor of the Ministry of Foreign Affairs,
Mr. Dr. Friedrich Gauss, and Ministerial Adviser in the Reichsministerium, Mr. Dr. Hans Globke.
On behalf of the Government of Czechoslovakia - Mr. Dr. Antonin Koukal, Ministerial Adviser
of the Ministry of Justice in Prague,
who agreed on the following provisions:
§1.
Those citizens of Czechoslovakia who as of 10 October 1938 were living in one of the
communities reunited with the German Reich, from 10 October 1938 acquire German
citizenship while losing Czechoslovak citizenship, if they
a) were born before 1 January 1910 in the territory, reunited with the German Reich,
or
b) lost their German citizenship on 10 January 1920,
or
c) are the children or grandchildren of a person who is subject to the conditions of a) or b)
or
d) are the wives of persons who are subject to the terms of paragraphs a), b) or c)
Citizens of Czechoslovakia of German national origin, who as of 10 October 1938 resided
outside the territory of the former state Czechoslovakia from 10 October 1938 receive German
citizenship while losing Czechoslovak citizenship, if they as of 10 October 1938 had the right
to citizenship in one of the communities reunited with the German Reich.
A wife does not acquire German citizenship if a husband does not acquire it.
§2.
The German Government is entitled up to 10 July 1939 to require persons of not German
48 The translation is made by the NGO “Regional Centre for Human Rights”
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national origin who, according to the provisions of this Treaty shall remain citizens of
Czechoslovakia and moved to the territory, reunited with the German Reich, since 1 January
1910, as well as their descendants with Czechoslovak citizenship, to leave the German Reich
during the three-month period.
The Government of Czechoslovakia takes these persons in its territory.
The Government of Czechoslovakia is entitled up to 10 July 1939 to require persons of German
national origin, who by the time this Treaty enteres into force are citizens of Czechoslovakia
and moved to the territory of the modern Republic of Czechoslovakia since 1 January 1910
as well as their descendants to leave the territory of the Czechoslovak Republicduring the
three-month period.
At the same time, these persons are deprived of citizenship of Czechoslovakia. The German
government takes them into its territory. This provision shall not apply to persons who have
received Czechoslovak citizenship after 30 January 1933 and until the date indicated had
been citizens of Germany or Austria.
§ 3.
Persons not of German national origin, who under the provisions of § 1 acquire German
citizenship, have until 29 March 1939 the right to opt for Czechoslovak citizenship.
§ 4.
Persons of German national origin, who remain citizens of Czechoslovakia, have until 29
March 1939 the right to opt for German citizenship. This provision shall not apply to persons
who received Czechoslovak citizenship after 30 January 1933 and until the date indicated
had been citizens of Germany or Austria.
§ 5.
One can inform about the willingness to opt:
a) in favor of Czechoslovak citizenship in the territory of the Czechoslovak Republicin the
Ministry of Internal Affairs in Prague,
outside the Czechoslovak Republicin the competent executive authority of Czechoslovakia;
b) in favor of German citizenship in the territory of the German Reich in the lower competent
administrative authority,
outside the German Reich in the authorized German consulate.
§ 6.
The territorial competence of the authorities referred to in § 5 is determined by the place of
residence, and in the absence of residence, place of location of an optant.
If the application of option is submitted to the territorially incompetent authority, other than
specified in § 5, then the latter passes it to the territorially competent authority. The date of
submission of the application shall be the date of its receipt in the first instance.
§ 7.
Application of option is submitted to the authority referred to in § 5 being recorded or in
writing. Signature under the application submitted in writing must be certified by the official
representative of the State whose citizenship is chosen, by the court or the notary.
Application of option may also be submitted by an authorized representative. The
signature under a power of attorney must be certified by any of the instances referred to in
the paragraph 1.
Certification is exempt from fees, taxes, stamp duties and other charges.
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§ 8.
The competent authority of the state whose citizenship is selected, checks the prerequisites
for the option. In the Czechoslovak Republic, this checking is reserved for the Ministry of
Interior in Prague.
If the conditions for the option are met, the authority shall immediately issue a certificate of
option for an optant, and notify the authority designated by the other Government.
In the certificate of option there should be also specified family members subject to the
option.
The option enters into force at the time an application of option is received by the authorities
dealing with the choice of citizenship.
The procedure of option does not provide for any fees, taxes, stamp duties and other
charges.
§ 9.
Any person having reached the age of 18 may submit the application of option.
The wife does not have the right to opt for their own; option by the husband covers a wife.
This rule does not apply if the marriage is dissolved in court.
For persons under 18, for persons over 18 years, for whom there are grounds for depriving
them of their legal capacity, as well as for persons who are deprived of legal capacity or over
whom a temporary custody (guardianship) is established, option could be made by their legal
representatives, even if the latter has no right of option. In order to assess the grounds for the
application of option under this paragraph, the date of submission of the application of option
to the authorities dealing with the choice of citizenship is fundamental.
§ 10.
The option is irreversible.
However, if persons for whom the legal representative has exercised the right of option,
reach the age of 18 years before the expiry of the option period or until the expiration of that
period the basis of their legal representation is no longer valid, they can cancel option within
the time limit. The abolition of the option is covered by the provisions of §§ 5-7, respectively.
§ 11.
According to this Treaty, a place of residence of a person is the place where the person has
settled with the intention of long-term residence.
If a person has more than one place of residence, the place that he indicates as his place
of residence, is fundamental.
§ 12.
Persons who are required to leave the territory of the German Reich or the Czechoslovak
Republic, as prescribed under § 2, as well as optants that until 3 March 1940 move their place
of residence to the State in favor of which they have opted, are permitted to take all movable
property, which they had as of the date of this Treaty, and they are exempt from any duties.
An exception is cash, securities and collections that are of particular historical or cultural
significance to the country of export. Consideration of these issues should be specified by a
special agreement.
§ 13.
To check and resolve all issues that arise in the execution of this Treaty, a Mixed Commission
is created, to which each of two Governments shall send an equal number of representatives.
This Commission is particularly charged with the responsibility of:
1. the development of proposals to facilitate the exchange of populations, as well as
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clarification of fundamental questions that arise in this exchange;
2. the verification of doubt in regard to citizenship.
The Commission may appoint a sub-committees on specific issues if necessary.
§ 14.
This Treaty shall enter into force on 26 November 1938.
Done in duplicate, in the German and Czechoslovak languages.
Berlin, 20 November 1938.
Friedrich Gauss
Antonin Koukal
Hans Globke
[Source: The monthly magazine of Foreign Policy 5 (1938), no. 9, pp 1213-1216].
The Treaty in the original language can be found following the link49.
Resolution of the Crimean Supreme Council on legislative initiative for the right of
citizens of the Republic of Crimea to dual citizenship
18 December 1992, № 223-1
1. In accordance with Article 1 of the Law of Ukraine “On citizenship of Ukraine” and Article
21 of the Constitution of the Republic of Crimea to consider it necessary to propose to the
Supreme Council of Ukraine and the President of Ukraine to speed up decision-making on
the exercise of the right to dual citizenship by the Crimean citizens.
2. To temporarily suspend in the territory of the Republic of Crimea the execution of
decisions by the law enforcement bodies on citizenship of Ukraine in relation to the Crimean
citizens, who haven’t still decided on their belonging to Ukraine.
3. To instruct the Permanent Commission of the Supreme Council of Crimea for legislation,
lawfulness and system of justice to prepare proposals on the practical exercise of the right of
the Crimean citizens to dual citizenship.
The full text of the document can be found following the link50.
49 http://www.forost.ungarisches-institut.de/pdf/19381120-1.pdf
50 http://precedent.crimea.ua/documents/postanovlenye-verhovnoho-soveta-kryima-o-zakonodatelnoj-ynytsyatyve-povoprosu-
realyzatsyy-prava-hrazhdan-respublyky-kryim-na-dvojnoe-hrazhdanstvo-ystorycheskye-materyalyi/
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The Russian authorities exploit the “automatic obtaining of nationality” for prosecuting
pro-Ukrainian activists. The best-known examples are cases of Oleg Sentsov and Aleksandr
Kolchenko who were arrested and transferred to the territory of the Russian Federation
on suspicion of committing criminal offenses. Both are citizens of Ukraine and during the
occupation lived in Crimea. The Office of the United Nations High Commissioner for Human
Rights highlighted in its report of July 15, 2014 (para. 188):
“It would appear that since Sentsov did not explicitly renounce Russian citizenship within the
deadline provided under Russian legislation, he is automatically considered to have become
a Russian citizen.”
Particularly, the “Kolchenko’s case” should be mentioned in the context ofnationality, as
it indicates the compulsory nature of the “automatic nationaity” of the Russian Federation,
which does not depend on the will of a person. The court denied the retention of the Ukrainian
citizenship by Kolchenko, despite the fact that Kolchenko while being in custody in Moscow
could not apply for Russian citizenship and obtain a Russian passport. Kolchenko confirms
that he has taken no actions to obtain Russian citizenship. The only document that has been
certifying his identity since the time of his arrest is his Ukrainian passport. Kolchenko considers
himself a citizen of Ukraine, and Ukraine recognizes Kolchenko’s Ukrainian citizenship.
The court decided to deny the retention of the Ukrainian citizenship by Oleksandr
Kolchenko. The court’s decision to deny the retention of the Ukrainian citizenship contradicts
international law, Russian and Ukrainian legislations. Therefore, Kolchenko is deprived of the
right to nationality, despite the fact that no one can be deprived of nationality arbitrarily. In
addition, the judgment violates Article 16 of the International Covenant on Civil and Political
Rights of 1966, which guarantees that everyone shall have the right to recognition everywhere
as a person before the law. Thus, Kolchenko’s legal personality is based on his Ukrainian
nationality, and his legal nexus as a national of Ukraine remains unchanged outside Ukraine.
In this case, the court, deciding in the name of the Russian Federation, unreasonably refuses
to recognize Oleksandr Kolchenko’s legal personality (Report of the Crimean Human Rights
Field Mission for January 2015, p. 16).
Eventually, the North Caucasus District Military Court sentenced Oleg Sentsov and
Oleksandr Kolchenko to 20 and 10 years of imprisonment in a strict regime penal colony,
respectively, as Russian citizens. At the same time, Kolchenko with assistance of his lawyer
Svetlana Sidorkina filed a complaint to the European Court of Human Rights about the
compulsory imposition of the Russian nationality.
This “automatic” acquisition of Russian nationality by nationals of Ukraine in Crimea is illegal,
since the internal procedures of the Russian Federation for its acquisition fail to comply with
the applicable international conventions, customary international law and the principles of the
nationality law (in particular, see The European Convention on Nationality, Nottebohm case).
***
Those Crimeans who for one reason or another have not declared their «desire to preserve
their existing citizenship of Ukraine», but still do not wish to be considered as citizens of the
Russian Federation, faced a “curious” situation. Often in this situation, these people do not
apply for the issuance of Russian passports, while continuing to use the passport of citizen
of Ukraine.
Some of these people have applied for a residence permit as citizens of Ukraine. Mainly,
this situation ends with failure. Denial is usually motivated by the fact that, in accordance with
the law of 6-FKZ applicants are considered as citizens of Russia, and a residence permit may
be granted only to foreign nationals.
Those Crimeans who try to renounce the imposed citizenship of the Russian Federation
also end up in a complicated situation. Russian legislation makes no exception for Crimeans,
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and thus they have to undergo the procedure of renouncing the citizenship in a general way.
This procedure, among other things, requires a RF passport. Thus, here is a vicious circle:
in order to get rid of the imposed citizenship, you must first recognize yourself a citizen of
Russia and formally apply for a passport.
If Crimeans do not have a «document confirming the legality of staying in the territory of
Russia» (Russian passport or residence permit) this leads to restriction or deprivation of many
of their rights. Without Russian passport or a residence permit it is impossible be formal
employment, apply for health services, social benefits and pensions.
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Imposition of citizenship as a new human rights violation and a way of
implementing aggressive expansion by the Russian Federation in the
context of the occupation of Crimea
By Serhiy Zayets
Lawyer and expert of the NGO “Regional Centre for Human Rights”
* This article was first published in Ukrainian and German languages with support of the Institute for European
Policy (Berlin), the Ilko Kucheriv Democratic Initiatives Foundation, the Federal Foreign Office of Germany under
the project “Strengthening of Ukrainian Think Tanks: the Development of Institutional Capacity and Improving
Cooperation with Partners in the European Union”
Introduction
After the occupation of the Crimean Peninsula the Russian Federation collectively
naturalized the population of Crimea. This fact raises a number of questions that have no
ready answers in today’s environment. Firstly, it is a way of seizing the territory together
with the population. Secondly, it is interference in Ukraine’s internal affairs and nationality
relationship that existed between the Crimean residents and the Ukrainian state. Finally,
Russia has violated international human rights standards, interfering in the internal sphere
of an individual. It is this aspect – the violation of human rights by means of imposition of
nationality – that is a focus of this study.
It should be realized that the occupation and actions directed at the appropriation of the
occupied territory is a phenomenon that happened perhaps for the first time in the European
system of human rights protection. The similar situation, which can be compared to Crimea,
is the Turkish invasion of Northern Cyprus. However, the current level of economic, legal,
information, cultural and other relations rises new issues which did not exist or were not so
high-profile during the invasion of Cyprus. Furthermore, Cyprus still remains the so-called
unrecognized territory that Turkey has never tried to make a part of its own country.
Crimea also differs from other unrecognized territories, including Transnistria, Abkhazia
and South Ossetia51. The Russian Federation has been carrying out the “passportization” of
the population in these territories for quite a long time already. However, the main difference
from the Crimean situation is that the expression of individual’s will is needed in order to
obtain Russian nationality in these territories and there is no temporal limitation. In other
words, those who are unwilling to acquire Russian nationality can avoid it. But in Crimea there
was held quick collective passportization, during which there was no possibility to consciously
respond to the situation.
In the postwar time contemporary international law addressed the issues of eliminating
statelessness52 and resolving cases of dual nationality. However, the issue of protection
against arbitrary imposition of nationality has so far remained unnoticed by the international
community. It is time when these issues must also take their rightful place in international
discussions.
Historical background
In early 2014, Russia committed an act of military aggression against sovereign Ukraine and
tried to annex part of its territory - the Crimean Peninsula. The beginning of the active phase
51 See, for example, Human Rights in the Occupied Territories of Georgia: Information Note Distributed by the Delegation
of Georgia during OSCE Review Conference - Human Dimension Session (Warsaw, 30 September - 8 October 2010). –
Access mode: http://www.osce.org/home/73289?download=true (date of reference: 01/11/2016).
52 See, for example, materials of the United Nations High Commissioner for Refugees (UNHCR) about the campaign to stop
statelessness. – Access mode: http://www.unhcr.org/pages/53174c306.html (date of reference: 01/11/2016).
Analytics
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of such actions should be considered the third decade of February53.
The occupation was carried out under the protection the so-called “green men” - armed men
without insignia. Later in the documentary “Crimea: The Way Back Home”, Russian President
Vladimir Putin recognized that those were the Armed Forces of the Russian Federation54.
According to numerous press reports, many of the participants of the occupation were
awarded with a medal “For the return of Crimea”, but the official list of the medaled persons
is not available55.
On 27 February 2014, by a decision of the Verkhovna Rada of the Autonomous Republic of
Crimea (ARC), captured and controlled at the time by the armed men, there was scheduled an
all-Crimean referendum56. The initial date of the referendum was set on the day of presidential
elections in Ukraine –25 May 2014. Then the referendum was rescheduled for 30 March and
finally - for 16 March 2014. The latter was the date when the referendum took place57.
Reliable data on the results of voting is not available, and public statements of those involved
in its organization and conduct contain contradictory information58. Despite that fact, on 18
March 2014, (in two days after the referendum) an agreement “on admitting to the Russian
Federation the Republic of Crimea and establishing within the Russian Federation the new
constituent entities” (hereinafter - “Agreement”) was signed59.
The next day the Constitutional Court of the Russian Federation by its decision dd. 19 March
2014 no. 6-P acknowledged this Agreement as such that corresponds to the Constitution of
53 On 23 February 2014, on the Nakhimov Square in the city of Sevastopol there was held a rally, during which a Russian
citizen Oleksiy Chaly was “elected” as the so-called “people’s mayor”. Then the city was surrounded by checkpoints.
Later, on 26 February 2014, in front of the building of Verkhovna Rada of Crimea, that was taken over by people
unknown at that time, there was held a meeting of pro-Russian and pro-Ukrainian forces (the latter included the Crimean
Tatars). However, the medal “For the return of Crimea”, legalized by the Order of the Ministry of Defense of the Russian
Federation no. 160 of 21 March 2014 bears the dates 20.02.14 - 18.03.14. The Verkhovna Rada of Ukraine by the Law of
15 September 2015 specified the date of the beginning of the occupation: the beginning of the occupation is officially
considered to be 20 February 2014.- Access mode: http://zakon0.rada.gov.ua/laws/show/1207-vii.
54 Andriy Kondrashov: Film “Crimea: The Way Back Home” (All-Russian State Television and Radio Broadcasting Company,
2015).- Access mode: https://russia.tv/brand/show/brand_id/59195/ (date of reference: 01/11/2016). The film has English
subtitles. Regarding the participation of Russian troops, please, watch from 1:05:00.
55 According to the site life.ru: ca. three hundred Russian citizens were awarded with a medal “For the Return of Crimea”.-
Access mode: https://life.ru/t/новости/l5l348 (date of reference: 01/01/2016).
56 Resolution of the Autonomous Republic of Crimea “On holding of the all-Crimean referendum”.- Access mode: http://
crimea.gov.ru/act/11689 (date of reference: 01/11/2016).
57 During this short period, not only any public debate was not organized, but also Ukrainian and Crimean Tatar activists
were severely persecuted. See, for example, the report of the Office of the United Nations High Commissioner for
Human Rights on the situation of human rights in Ukraine dd. 15.04.2014, prepared after the visit of Assistant Secretary
General for Human Rights Ivan Šimonović to Crimea: “the presence of paramilitary and so called self-defence groups
as well as soldiers in uniform without insignia, widely believed to be from the Russian Federation, was not conducive
to an environment in which voters could freely exercise their right to hold opinions and the right to freedom of
expression. There have also been credible allegations of harassment, arbitrary arrest, and torture targeting activists
and journalists who did not support the referendum. Furthermore, seven persons were reported as missing <...> While
the Tatar community was promised numerous concessions, including Government positions as well as the recognized
status as indigenous peoples, the majority of the members of the community chose to boycott the referendum. OHCHR
was informed by representatives of Crimean Tatars that no more than 1,000, out of a population of 290,000-300,000,
participated in the 16 March referendum” (para. 6) .- Access mode: http://www.ohchr.org/Documents/Countries/UA/
Ukraine_Report_15April2014.doc (date of reference: 01/11/2016).
58 According to the statement of Mykhaylo Malyshev, the so-called “Head of the Crimean Parliament Commission on
organization and holding of the referendum” 1 million 250 thousand 426 people voted in Crimea. This is without
Sevastopol <.> With Sevastopol the number of people voted made up 1 million 724 thousand 563 people.” (Quoted by
the Newspapers: “Crimea has chosen Russia.” – Access mode: https:// www.gazeta.ru/politics/2014/03/15_a_5951217.
shtml (date of reference: 01/11/2016). According to this statement, more than 474 thousand people voted in Sevastopol,
while the total number of population (including children who do not have the right to vote) was a little over 385 thousand
people.
59 On the peninsula, in compliance with Article 133 of the Constitution of Ukraine, there were established two administrative
units equal in status - the Autonomous Republic of Crimea (hereinafter - ARC) and the city of Sevastopol, which had been
existing in that form since declaration of independence of Ukraine in 1991. The two administrative units had the same
status, and none of them was subordinate to the other. Nevertheless, the referendum was also conducted in the city of
Sevastopol. By tangent rule the terms regarding the city of Sevastopol were included in the “agreement”.- Access mode:
http://kremlin.ru/events/president/news/20605 (date of reference: 01/11/2016).
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the Russian Federation60.
On 21 March 2014, Russian President Vladimir Putin signed the law on ratification of the
Agreement and the Federal Constitutional Law no. 6-FKZ “On admitting to the Russian
Federation the Republic of Crimea and establishing within the Russian Federation the new
constituent entities of the Republic of Crimea and the City of Federal Importance Sevastopol”
(hereinafter - the Law 6-FKZ)61.
This Law came into force on 1 April 2014. Since that time, its provisions began to be formally
applied by the occupation authorities on the Crimean Peninsula. However, it should be noted
that according to Article 1 of the “Agreement” the so-called Republic of Crimea deemed to
be admitted to the Russian Federation from the date of signing of this Agreement, i.e. from
18 March 2014.
The occupation has been followed by numerous violations of human rights: freedom of
movement, property rights, freedom of speech, freedom of religion, the right to a fair trial
and so on. At the same time, some of these violations themselves are also international
crimes: for example, transfer of the Crimean residents from the occupied territory and vice
versa, transfer of the civilian population of the Russian Federation to the occupied territory
significantly changes the population profile of the peninsula. Conscription of residents of the
occupied territory into the Russian Armed Forces is another example of such an offense. A
prerequisite for this and other offenses is arbitrary imposition of Russian nationality, which is
being analyzed below.
International legal qualification of the Russian Federation’s actions in Crimea
The UN General Assembly Resolution 3314 of 14 December 1974 defines aggression as
the use of armed force by a State against the sovereignty, territorial integrity or political
independence of another State or in any other manner inconsistent with the Charter of the
United Nations62.
The Ukraine’s territorial integrity is guaranteed by a package of international legal
agreements from the UN Charter to the Final Act of the Conference on Security and
Cooperation in Europe.
According to the so-called Budapest Memorandum63 signed by the Russian Federation
along with Great Britain and the United States, the signatories made a commitment to respect
the independence and sovereignty and the existing borders of Ukraine and refrain from the
threat or use of force against the territorial integrity or political independence of Ukraine,
ensuring that none of their weapons will ever be used against Ukraine except in self-defense
or otherwise in accordance with the Charter of the United Nations64.
The UN General Assembly Resolution 68/262 on Ukraine’s territorial integrity of 27 March
2014 called upon all States, international organizations and specialized agencies not to
recognize any alteration of the status of the Autonomous Republic of Crimea and the city of
Sevastopol on the basis of the referendum held on 16 March 2014 and to refrain from any
60 See the Judgment of the Constitutional Court of the Russian Federation of 19 March 2014 no. 6-P.- Access mode: https://
rg.ru/2014/03/19/ks-site-dok.html (date of reference: 01/11/2016). On 10 September 2015, at the Conference of European
Constitutional Courts in Batumi there was signed the so-called Batumi Declaration, which noted the crucial role of the
Constitutional Court of the Russian Federation in legalizing the occupation and annexation of the Crimean Peninsula.
61 Federal Constitutional Law no. 6-FKZ “On admitting to the Russian Federation the Republic of Crimea and establishing
within the Russian Federation the new constituent entities of the Republic of Crimea and the City of Federal
Importance Sevastopol”. - Access mode: http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=LAW&n=200047
&fld=134&dst=100136,0&rnd=0.46997960940071615#0 (date of reference: 01/11/2016).
62 UN General Assembly Resolution no. 3314 of 14 December 1974.- Access mode: http://www.un.org/ru/documents/decl_
conv/conventions/aggression.shtml (date of reference: 01/11/2016).
63 Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-proliferation
of Nuclear Weapons of 5 December 1994.- Access mode: http://zakon4.rada.gov.ua/laws/show/998_158 (date of
reference: 01.11.2016).
64 Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-proliferation of
Nuclear Weapons.- Access mode: http://zakon2.rada.gov.ua/laws/show/998_158 (date of reference: 01/11/2016).
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action or dealing that might be interpreted as recognizing any such altered status65.
External conditions in which Crimeans had to choose their citizenship
According to Article 4 of the Federal Constitutional Law no. 6-FKZ “from the date of the
admitting to the Russian Federation the Republic of Crimea and establishing within the Russian
Federation the new constituent entities Ukrainian nationals and stateless persons who had
been permanently residing in the Republic of Crimea and the City of Federal Importance
Sevastopol were recognized as nationals of the Russian Federation, except for persons
who within one month thereafter declared their willingness to retain their and (or) their minor
children’s other nationality or remain stateless.” 66
As mentioned above, according to the “Agreement” the “Republic of Crimea” is deemed to
be admitted to the Russian Federation from the date of signing of the “Agreement”, i.e. from
18 March 2014. Thus, starting exactly from that date the term envisaged by Art. 4 of the Law
6-FKZ was restricted. That term ended on April 18. But since the legislation of the Russian
Federation started being applied on the peninsula from 1 April 2014, according to the Law no.
6-FKZ, as mentioned earlier, so the general term for the submission of that application de jure
was reduced to 18 days.
As of 4-9 April 2014, in Crimea there were operating only two offices of the Federal Migration
Service (FMS) , which received applications, in Sevastopol and Simferopol. As of 10 April,
9 FMS offices were operating in: Sevastopol, Simferopol, Yalta, Bakhchisaray, Bilogorsk,
Yevpatoriya, Saki, Kerch and Dzhankoy67. It was reported by the Human Rights Monitoring
Mission in Ukraine (hereinafter – HRMMU) in its periodic report on the human rights situation
in Ukraine of 15 May 201468.
In total, ca. 3500 persons filed applications “declaring their will to keep their and (or) their
minor children’s other nationality or remain stateless.” 69
As indicated in the report of the Commissioner for Human Rights in the Republic of Crimea
in 2014, “transitional period”, the time allotted for integration of the <...> region from the
established system of law and governance into the system of public institutions of the Russian
Federation <...> is characterized by internal contradictions, inconsistency, interchange of
progressive development phases, often combined with conflicts in the application of laws.
This leads to the fact that an ordinary person is lost in a variety of new rules of life different
from those, which he got accustomed to.” 70
That is not to say that the inhabitants of Crimea were fully deprived of possibility to express
their will to acquire Russian nationality. However, the conditions in which they had to choose
(instantaneous loss of familiar landmarks in everyday life, lack of adequate information about
consequences, extremely short term, infrastructural constraints, etc.) did not enable to make
an informed choice71. Observations show that the majority of Crimeans did not try to make
their choices and acquired the status of Russian nationals “with the tacit consent” after the
65 UN General Assembly Resolution of 27 March 2014 no. 68/262 “Territorial integrity of Ukraine”.- Access mode: http://
www.un.org/ru/documents/ods.asp?m=A/RES/68/262 (date of reference: 01/01/2016).
66 Law no. 6-FKZ, ibid.
67 For comparison: offices of the Federal Migration Service in which one could apply for a Russian passport, have been
established within the network of similar offices of the State Migration Service of Ukraine. These offices were located,
as a rule, within walking distance of the place of residence of citizens in big cities.
68 Para. 27 of the periodic report of the UN Human Rights Monitoring Mission in Ukraine on the situation of human rights
in Ukraine of May 15, 2014.- Access mode: http://www.un.org.ua/images/stories/Report_15_May_2014ua.pdf (date of
reference: 01/11/2016).
69 See the Report of the Commissioner for Human Rights of the Russian Federation for 2014, p. 99.- Access mode: http://
ombudsmanrf.org/www/upload/files/docs/appeals/doklad2014.pdf (date of reference: 01/11/2016).
70 Report of the Commissioner for Human Rights in the Republic of Crimea in 2014, p. 4.- Access mode: http://crimea.
gov.ru/textdoc/ru/7/act/393pr.pdf This document is of great evidentiary value, since the credentials of the author L.E.
Lubinaya as the Commissioner for Human Rights are recognized by the Russian Government.
71 The term “informed choice” is used by analogy with the fixed term “informed consent to medical treatment”, which
provides for such consent on the basis of sufficient and timely information about the nature of medical treatment, the
associated risks and possible consequences.
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expiry of the 18-day term72.
In the meantime, any option of choice, which had to be made by the Crimeans, led to a
deterioration in their situation: they had to choose between a significant restriction of rights
(up to a complete loss of legal personality) and the oath of allegiance to the aggressor state.
Consequences of renunciation of Russian nationality
Applying to renounce Russian nationality automatically led to the fact that this person
acquired the status of a foreigner with the relevant restrictions (related to employment, the
right to social benefits, migration control, prohibition of participation in political activities
and to be engaged in public life, etc.). But unlike the common situation when a foreigner
deliberately moves to a foreign country and agrees to relevant limitations, this category
of Crimean residents found themselves to have a status of foreign nationals at home. The
further stay on the peninsula became entirely dependent on the discretion of the occupation
authorities as to permission to stay.
The former nationals of Yugoslavia in Slovenia faced similar problems. The European Court
of Human Rights in the case Kurić and Others v Slovenia73 concluded that such situation
entails a loss of legal personality, and declared it incompatible with Article 8 of the European
Convention on Human Rights <respect for privacy>. In addition, the Court also held that the
applicants had been subjected to discriminatory treatment on the ground of national origin74.
At the time of the disintegration of Yugoslavia, all nationals had dual nationality - of Yugoslavia
itself (which was used effectively) and one of the republics, it was composed of (before the
disintegration that nationality was purely nominal and did not influence the possibility of living
in another republic and participating in the elections). After the disintegration of Yugoslavia,
the former Yugoslav nationality lost its meaning. Instead Slovenia provided a certain period to
all those willing to get their own nationality or a permission to stay. After the deadline, those
who did not use the right provided were “erased” from the register of residents. Applicants
for various reasons did not use the opportunity to determine their status in the republic and
found themselves in the category of “the erased”. This led to the fact that they were in a
position that the ECtHR defined as the loss of legal personality when they had the severely
limited ability to exercise their rights or even were fully deprived of them.
Consequences of acquiring the status of Russian citizens
It is much harder to understand the situation of the persons who in the period up to 18April
2014 had not submitted the above said application and thus acquired the status of Russian
citizens regardless of subsequent obtaining a passport or avoidance of getting it. “New
citizens” avoided the problems associated with the loss of legal personality. In fact, they have
received a full range of rights enjoyed by Russian nationals by birth in Russia.
In this aspect it looks as if the Russian Federation has done its best and made the Crimean
inhabitants equal to any national of Russia. But in fact this is not true. Since the acquisition of
nationality involves not only getting a set of rights but also certain duties and the possibility of
imposing restrictions by the state. Therefore, the situation that has signs of external equality,
actually has a negative impact on “new nationals” having Ukrainian identity, who are now
obliged, for example, to use arms to defend the Russian Federation, which, in turn, is in
72 According to the observations of the NGO “Regional Center for Human Rights” there are recorded a large number of
people in Crimea and those who left the occupied territory, who did not submit an application regarding unwillingness to
obtain Russian nationality, but also did not apply for obtaining a Russian passport. We should understand that pursuant
to the Russian laws such persons are also considered nationals of the Russian Federation, despite the lack of proper
documents. See further, for example, O. Kolchenko’s example.
73 Case of KURIĆ and others v. SLOVENIA.- Access mode: http://hudoc.echr.coe.int/eng?i=001-111634 (date of reference:
01/11/2016)
74 According to the UN Convention on the Elimination of All Forms of Racial Discrimination the discrimination on the
ground of national origin is a form of racial discrimination.
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conflict with Ukraine.
Nationality also includes the creation of certain loyalty relationship that affects the private
life and may cause a serious internal conflict in a person. Such situation may raise the
question about violation of the right to respect for private life under Article 8 of the European
Convention on Human Rights. It is the analysis of compliance of Russia’s actions on imposing
nationality with international standards that we are going to focus on.
We should make a reservation: this relates to nationals of Ukraine who were loyal to their
homeland and lived in Crimea at the time of occupation (regardless of whether they left the
occupied territory thereafter or continue to live there). For those who welcomed the fact of
annexation and the status of Russian nationals, the problem does not exist: they have just
taken the opportunity.75
Arbitrary imposition of nationality as a new challenge
When we talk about imposition of nationality as an entirely new challenge, it should be
emphasized that existing precedents are related only to the history of the World War II.
The Permanent Military Tribunal at Strasbourg and the U.S. Military Tribunal at Nuremberg
sentenced consequently Robert Wagner (1946)76 and Gottlob Berger (1949)77 for actions
related to Germanization of the population in the occupied territories and its mobilization as
German nationals. However, these cases concerned the imposition of nationality as one of
the objective elements of war crimes or crimes against humanity and related to the violation
of international humanitarian law. According to Art. 45 of the Regulations concerning the
Laws and Customs of War on Land (1907) it is forbidden to compel the inhabitants of occupied
territory to swear allegiance to the hostile Power78.
Prerequisites for viewing the imposition of nationality in the context of human rights violation
arise with the adoption of core international human rights treaties. Due to the development of
an international catalogue of human rights standards a person was recognized as international
legal personality and ceased to be exclusively a toy in the hands of the sovereign. Hence
there arose a need to take into account person’s will in matters that previously were only
within the scope of interstate politics.
In its Advisory Opinion OC-4/84 of 19 January 1984 regarding the proposed amendments
to the naturalization provision of the Constitution of Costa Rica the Inter-American Court of
Human Rights noted that, despite the fact that it is traditionally accepted that the conferral and
regulation of nationality are matters for each state to decide, contemporary developments
indicate that international law does impose certain limits on the broad powers enjoyed by
the states in that area. And thus the manners in which states regulate nationality matters
n cannot today be deemed within their sole jurisdiction; those powers of the state are
also circumscribed by their obligations to ensure the full protection of human rights. The
classic doctrinal position, which viewed nationality as an attribute granted by the state to its
subjects, has gradually evolved to the point that nationality is today perceived as involving
the jurisdiction of the state as well as human rights issues (para 32, 33)79.
The classic case on nationality is the so-called case of Nottebohm reviewed by the
International Court of Justice80. In this case the Court drew a conclusion that today has
75 This material is devoted to consideration of issues of nationality in terms of human rights and exactly in this context there
were made reservations. However, the forced extraterritorial collective naturalization of nationals of the other state also
violates international public law in terms of inter-State relations.
76 Access mode: https://www.phdn.org/archives/www.ess.uwe.ac.uk/WCC/wagner1.htm (date of reference: 01/11/2016).
77 Access mode: http://www.worldcourts.com/imt/eng/decisions/1949.04.13_United_States_v_Weizsaecker.
pdf#search=%22gottlob berger% 22 (date of reference: 01/11/2016).
78 Access mode: https://www.icrc.org/rus/resources/documents/misc/hague-convention-iv-181007.htm (date of reference:
01/11/2016).
79 Access mode: http://www.corteidh.or.cr/docs/opiniones/seriea_04_ing.pdf (date of reference: 01/11/2016).
80 LIECHTENSTEIN v. GUATEMALA, International Court of Justice (ICJ), 1955.- Access mode: http://www.icj-cij.org/docket/
files/18/2674.pdf (date of reference: 01/11/2016).
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become classic: “Naturalization is not a matter to be taken lightly. To seek and to obtain it is
not something that happens frequently in the life of a human being. It involves his breaking of a
bond of allegiance and his establishment of a new bond of allegiance. It may have far-reaching
consequences and involve profound changes in the destiny of the individual who obtains it. It
concerns him personally, and to consider it only from the point of view of its repercussions with
regard to his property would be to misunderstand its profound significance. In order to appraise
its international effect, it is impossible to disregard the circumstances in which it was conferred,
the serious character which attaches to it, the real and effective, and not merely the verbal
preference of the individual seeking it for the country which grants it to him.” (p. 24)
Although, in the above case issues of nationality are considered in the context of
international relations, the definition of this phenomenon given by the International Court of
Justice enables to consider it through the system of international human rights standards as
well.
International standards for nationality as the right included in the international
catalogue of human rights
Nationality is viewed as a category contained in the catalogue of human rights in compliance
with the Universal Declaration of Human Rights. Under Article 15 of the Declaration everyone
has the right to a nationality and no one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality.
The International Covenant on Civil and Political Rights somewhat narrows the context and
reads only the child’s right to acquire a nationality (Art. 24).
The right to a nationality is regulated in more details by Article 20 of the American Convention
on Human Rights. Its provisions guarantee every person the right to the nationality of the
state in whose territory he was born, and prohibits arbitrary deprivation of nationality or of the
right to change it.
The European Convention on Human Rights, in contrast to these international instruments,
does not at all contain provisions on nationality. The European Court noted that the right to
a nationality is not as guaranteed by the Convention, although under certain conditions the
issue of violation of Article 8 may arise in the context of nationality.
In particular, in the case Genovese v. Malta (Application no. 53124/09, 11 November 2011,
§ 30) the ECtHR noted: “The Court … reiterates that the concept “private life” is a broad term
not susceptible to exhaustive definition. It covers the physical and psychological integrity of a
person. It can therefore embrace multiple aspects of the person’s physical and social identity.
<...> The provisions of Article 8 <respect for private life> do not, however, guarantee a right to
acquire a particular nationality or citizenship. Nevertheless, the Court has previously stated
that it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances
raise an issue under Article 8 of the Convention because of the impact of such a denial
(deprivation) on the private life of the individual.” 81 In this judgment, the Court noted that
Malta had violated Article 14 <prohibition of discrimination> in conjunction with Article 8 of
the Convention <respect for private life>, as its Citizenship Act prevented an illegitimate child
to acquire Maltese citizenship even though his father was Maltese, while children born to a
married couple could inherit citizenship of one of parents.
It should be emphasized that the whole case-law of international judicial and quasi-judicial
bodies, where the issue of human rights violations in the aspects related to nationality was
raised, refers first of all to negative actions of states (deprivation of nationality, denial to
81 Access mode: http://hudoc.echr.coe.int/eng?i=001-106785 (date of reference: 01/11/2016).
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renounce nationality or other similar acts)82. The situation of imposition of nationality, as
happened in Crimea, has not been the subject of legal assessment to be conducted by
international bodies yet83. This new phenomenon has not also been the subject of theoretical
study to be carried out by research workers84.
And though the European Court of Human Rights addresses nationality issues very carefully,
Crimean situation is a favorable opportunity to review the preliminary findings and develop
practices in this regard.
Although, as it has been repeatedly noted, the European Convention contains no
guarantees on the right to nationality, a status of nationals can be considered as aspect of
the right to privacy guaranteed by Article 8 of the Convention. In particular, self-identification
is a manifestation of a private life. According to Article 8 of the Convention on the Rights
of the Child a nationality is an element of the child’s identity. There is no reason to state,
especially considering the position of the International Court of Justice in the Nottebohm’s
case regarding the fundamental nature of nationality in the life of each person that nationality
loses such meaning for an adult person.
In other words, the fact that the ECtHR does not contain provisions that guarantee a person
the right to nationality, in no way excludes that the arbitrary imposition of nationality cannot
give rise to circumstances which are incompatible with the guarantees provided by Article 8
of the European Convention on Human Rights <right to respect for private life>.
The arbitrary imposition of nationality on Crimean inhabitants, therefore, on the one hand, is
forcing the legal relationship between the inhabitants of Crimea and the Russian Federation,
on the other hand represents interference of the Russian Federation in the relationship that
emerged earlier and existed between the residents of Crimea and the Ukrainian state. Due
to this, actions of the Russian Federation directed at the imposition of nationality are not
within its sovereign jurisdiction. Rather the opposite: Russia violated its obligations under the
Budapest Memorandum, interfered in the internal affairs of Ukraine and relations between
the Ukrainian state and its nationals.
Before the occupation there were no effective relations between the Crimean residents
and Russia, which could be the ground for the formalization of nationality relations. It is rather
the opposite: the occupation and imposition of nationality became a prerequisite for certain
relationship between the Crimean inhabitants and the Russian state. Such relations are
undesirable for many Crimean people.
The possibility of reviewing this issue in the context of human rights gives each victim of
Russian aggression the opportunity to protect their rights when everybody can directly appeal
to international judicial and quasi-judicial bodies (including the ECtHR and the UNCHR). The
use of these mechanisms does not depend on the political will inside the state and allows
everyone to initiate a dialogue not only in the context of international relations but also in
humanitarian dimension.
Situation as viewed by the Constitutional Court of the Russian Federation
By its Judgment no. 18-p of 4 October 2016 the Constitutional Court of the Russian
Federation tried to analyze the decision of the Russian Government relating nationality taking
82 See, for example, decisions of the ECtHR in the cases Riener v. Bulgaria (no. 46343/99, 23 May 2006), Petropavlovskis
v. Latvia (no. 44230/06, § 83, ECHR 2015), Karassev v. Finland (dec.), no. 31414/96, Slivenko v. Latvia (dec.) [GC], no.
48321/99, Savoia and Bounegru v. Italy (dec.), no. 8407/05, 11 July 2006; Dragan and Others v. Germany (dec.), no.
33743/03, 7 October 2004; Mennesson v. France; Fedorova v. Latvia (dec.), no. 69405/01, 9 October 2003; Dadouch v.
Malta; Slepcik v. the Netherlands and the Czech Republic (dec.), no. 30913/96, 2 September 1996, and so on.
83 Now specialists of the NGO “Regional Center for Human Rights” are preparing an appication to the ECtHR and the
United Nations Human Rights Committee regarding discrimination and violation of the right to respect for private life
through the Russia’s imposition of nationality.
84 For more detailed information¬¬ about modern approaches we encourage you to read The Changing Role of Nationality
in International Law (Routledge Research in International Law) .- Access mode: https://www.amazon.com/Changing-
Role-Nationality-International -Law/dp/B00EVWK2G0/ref=sr_1_1_twi_kin_2?s=books&ie=UTF8&qid=1466688841&sr=1-
1&keywords=The+changing+role+of+nationality+in+international+law&selectObb = rent. (date of reference: 01/11/2016).
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into consideration the norms of international law.
In this case, the subject to the proceedings of the Constitutional Court of the Russian
Federation was the right of Ukrainian nationals and stateless persons who resided in Crimea
without official registration to acquire nationality under the Law no. 6-FKZ.
The Constitutional Court referred to the European Convention on Nationality (Strasbourg,
6 November 1997), the Russia’s succession with respect to Crimea and the UN General
Assembly Resolution 55/153 of 12 December 2000 “Nationality of natural persons in relation
to the succession of States” 85. Let us try to consider, how the supreme body of constitutional
justice of Russia has interpreted them.
First of all, significant is the reference to the European Convention on Nationality, which
though is signed by Russia, is not however ratified yet. Since the Convention is not ratified by
Russia, the reference to its provisions is essential in terms of recognition of its binding nature
at least in the form of customary law. On referring to the Convention, the Constitutional Court
cited its preamble, which states that account should be taken both of the legitimate interests
of States and those of individuals. However, the Court did not go beyond citing, that is why
the issue concerning the way of applying the indicated principle to the Crimean situation
remains open.
Nevertheless, the above analysis of Russia’s actions in Crimea shows the disregard for
the rights and interests of individuals in the occupied territory and the arbitrary imposition of
nationality. Thus, Russia has violated provisions of international law which binding nature for
the Russian Federation is recognized by the Constitutional Court of the state.
Regarding the reference to the Russia’s succession with respect to Crimea, the Constitutional
Court of the RF mentioned the UN General Assembly Resolution 55/153 of 12 December
2000 “Nationality of natural persons in relation to the succession of States”. Article 3 of
the Declaration provides that its provisions apply only to the effects of a succession of
States occurring in conformity with international law and, in particular, with the principles of
international law embodied in the Charter of the United Nations.
As it has been already noted, the UN General Assembly Resolution of 27 March 2014 called
upon all States to refrain from actions aimed at the disruption of the territorial integrity of
Ukraine, including any attempts to modify Ukraine’s borders and not to recognize any alteration
of the status of the Crimean Peninsula. Under such conditions the rules of international law
exclude the possibility of Russia’s succession to Crimea, and therefore the reference to the
UN General Assembly Resolution 55/153 of 12 December 2000 is also irrelevant86.
Finally, the Constitutional Court, referring to the Resolution 55/153, has given considerable
prominence to the person’s connection with a particular territory. However, this approach
reduces the status of people to serfs who are captured together with the land.
At the same time, it is necessary to mention again that in Nottebohm’s classic case the focus
in issues of nationality was put on the effective links of a person not with the territory, but the
state itself. A different approach would mean that people could not reside long outside their
country of nationality, as it would inevitably result in their naturalization: increase in length
of stay in a particular territory would lead to the strengthening of links with this territory and
weakening of links with the territory of origin. Author is unaware of origins of the concept of
nationality based on a connection with the territory, but its flaws have been demonstrated.
However, if we apply the principle of effective connection with the state itself, not the
85 Access mode: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N00/568/59/PDF/N0056859.pdf?OpenElement.
(date of reference: 01/11/2016).
86 The statement on succession generates many other objections: the capture of Crimea occurred without taking into
account the sovereign will of the Ukrainian state; Ukraine, which owns the peninsula, continues to exist; there is no
“people of Crimea”, who could have the right to self-determination, however, there is a multiethnic population of the
peninsula; the Republic of Crimea and especially the city of Sevastopol have never been subjects of international
law and were not recognized by anyone to be such during a short period in March 2014, and therefore could not
conclude international agreements, etc. This also deprives Russia of the possibility to refer to many other international
agreements and principles of international law as they also cannot be applied because of a violation of fundamental
obligations under the UN Charter.
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territory, it is necessary to stress once again that at the time of the occupation there was no
connection between the population of the peninsula and the Russian Federation, sufficient
for the nationality relations. At the same time, the imposition of nationality inevitably created
such links.
It is worth to mention one more time that the above decision of the Constitutional Court was
made in the context of the right of persons, who do not have a registered place of residence
in Crimea, to a nationality under the Law no. 6-FKZ. And in fact, following the above logic the
Constitutional Court of Russia tried to confirm this right of theirs. However, these principles
themselves cannot be applied to the naturalization of other nationals, and that is why they
themselves enable to conclude that Russia has violated international law.
Thus, the existing attempts to legitimize the presence of the Russian Federation in Crimea
roughly and obviously run against the rules of international law violated during the occupation.
Ukraine’s reaction to Russia’s actions
According to Art. 5 of the Law of Ukraine “On guaranteeing the rights and freedoms of
nationals and on the legal regime in the temporarily occupied territory of Ukraine” the forced
automatic acquisition of the nationality of the Russian Federation by the Ukrainian nationals
residing in the temporarily occupied territory is not recognized by Ukraine and is not accepted
as a ground for loss of nationality of Ukraine87.
At the same time, Ukraine’s position to some extent is inconsistent. For example, according
to the para. 12.7 Art. 12 of the Law of Ukraine “On creation of the free economic zone “Crimea”
and peculiarities of economic activities in the temporarily occupied territory of Ukraine” bank
savings guarantees are not applicable to nationals of the Russian Federation. This provision
was practically extended to Crimean residents who have to submit a declaration of having
no nationality of the Occupying Power. There can be also foreseen the issues regarding the
access of the Crimean residents to public service, classified information and others related to
security and the vulnerable situation in which the residents of Crimea found themselves due
to the imposed nationality.
This indicates that Ukraine cannot entirely ignore the actions of the Russian Federation
directed at the collective naturalization of the Crimean population and is compelled to take
into account this fact, even declaring its legal nullity.
Practical consequences of collective naturalization
The most vulnerable group of nationals of Ukraine who have suffered negative consequences
of Russia’s actions are children deprived of parental care. According to the Office of the
Ukrainian Parliament Commissioner for Human Rights, as of 01.08.2014 there were 4228 of
such children in Crimea. Since the beginning of the occupation the authorities of the Russian
Federation took control over administration of the institutions that provided care for such
children. On the grounds of “respecting the best interests of the child” in favor of these
children there was not filed any application “declaring willingness to keep their existing ...
other nationality.” 88
Persons who at the time of the occupation were held in custody belong to another vulnerable
group. The administration of places of detention did not properly secure their right to refuse
to be recognized Russian citizens as well. Thus they were deprived of consular protection
and the right to be transferred to the Ukrainian authorities for serving their sentences. The
87 Law of Ukraine “On guaranteeing the rights and freedoms of nationals and on the legal regime in the temporarily occupied
territory of Ukraine.”- Access mode: http://zakon0.rada.gov.ua/laws/show/1207-vii (date of reference: 01/11/2016).
88 See the statement of Head of the Department on Observance of the Rights of the Child, Non-discrimination and Gender
Equality A. Filipyshyna of 05/06/2015 submitted to the Secretariat of the Ukrainian Parliament Commissioner for
Human Rights.- Access mode: http://www.ombudsman.gov.ua/ua/all-news/pr/5615-sm-aksana-filipishina-prava-ditini-vkrimu-
pochali-porushuvati-vid-samogo/ ; http://health.unian.net/country/1085947-ukrainskim-detyam-sirotam-v-kryimuprinuditelno-
prisvaivayut-rossiyskoe-grajdanstvo.html (date of reference: 01/11/2016).
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most famous manifestation of this problem is a situation in which political prisoners Oleh
Sentsov and Oleksandr Kolchenko found themselves89. Referring to the fact that they have
acquired Russian nationality, Russian authorities refused to transfer them to Ukraine under
the Convention on the Transfer of Sentenced Persons (1983). Deputy Minister of Justice of
Ukraine S. Petukhov published the information about it on his Facebook page90. However,
this problem actually concerns hundreds of Ukrainian prisoners who as of today are being
transferred from Crimea to the territory of the Russian Federation.
The amended Law “On nationality of the Russian Federation” is in force from 04.06.201491.
According to Art. 6 of the Law nationals of the Russian Federation (except for those
permanently residing outside the Russian Federation), who also have another nationality or a
permanent residence permit in a foreign country, must notify in writing a territorial body of the
Federal Migration Service of these circumstances. Russian nationals permanently residing
outside of Russia shall submit such a notification within thirty days after entering the territory
of Russia. Russian passport is a prerequisite for such an application. No exceptions are made
for Crimean residents who at the time of the occupation had Ukrainian nationality, moreover
these provisions became binding upon them from January 1, 201692. Failure to abide by these
regulations results in criminal liability under Art. 330.2 of the Criminal Code of the Russian
Federation. Violation of notification terms results in administrative liability.
This itself can be viewed as a violation of the right to respect for private life, as these legal
provisions are a requirement to report a loyalty relationship with other state. In the context
of Crimea such interference cannot have a legitimate purpose. In addition, in this way Russia
actually forces the Crimean residents to get passports of the Russian Federation and declare
their loyalty to Ukraine.
A number of other provisions of the legislation and administrative practice also force the
Crimean residents to obtain Russian passports. As stated in the aforementioned report of
the Commissioner for Human Rights in the Republic of Crimea, the absence of a Russian
passport “makes it impossible to exercise almost all the rights and freedoms set forth in the
Constitution. In particular, these include inability to work, ineligibility for social security...” The
cases of social benefits termination in Crimea for Ukrainian nationals who have not received
a Russian passport or a residence permit, as well as problems with employment of such
nationals started to be recorded by the Regional Center for Human Rights after the so-called
“transition period” from January 1, 201593.
Conclusions
With the occupation of Crimea there emerged a situation when almost all residents of
the occupied territory were recognized Russian nationals without the effective links with the
country of their “new nationality”. The emergence of such links was not a prerequisite for
granting the status of nationals, but on the contrary, its consequence.
Formally having the possibility to choose a nationality, but not actually being able to
make an informed choice because of lack of time, information, and other circumstances, the
nationals of Ukraine found themselves at a crossroads facing two equally bad options: to lose
89 O. Sentsov and O. Kolchenko were detained in Simferopol in May 2014 on charges of involvement in the terrorist group,
brought to Moscow and later sentenced under Articles 205 and 205.4 of the Criminal Code of the Russian Federation
to 20 and 10 years of imprisonment respectively. They did not submit the application regarding renunciation of Ukrainian
nationality, as well as did not receive Russian passports. They do not recognize themselves as nationals of the Russian
Federation. However, the Russian Government refuses to transfer them to the authorities of Ukraine in order to serve
their sentence, referring to the fact that they have acquired the status of Russian nationals under the Law no. 6-FKZ.
90 Access mode: https://www.facebook.com/photo.php?fbid=1796566357285662&set=a.1434318470177121.1073741828.
100007969451473&type=3&theater (date of reference: 01/11/2016).
91 Access mode: http://www.consultant.ru/document/cons_doc_LAW_36927 (date of reference: 01/11/2016).
92 Access mode: https://web.archive.org/web/20160209125758/http://www.82.fms.gov.ru/press/news/item/51894/ (date
of reference: 01/11/2016 ).
93 Access mode: http://crimea.gov.ru/textdoc/ru/7/act/393pr.pdf (date of reference: 01/11/2016).
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legal personality and become foreigners at home or to refuse their own Ukrainian identity
and swear allegiance to the aggressor state. The given circumstances and in particular the
collective nature of naturalization of persons outside the sovereign territory of Russia indicate
that the will of the nationals did not have a significant impact on results. The absence of
a special status for the inhabitants of the occupied territories and making them equal to
ordinary foreigners complicate or make the residence in Crimea impossible for Crimeans
without obtaining a Russian passport.
The collective extraterritorial nationalization undermines the value of nationality institute in
international law, because it allows to degrade the nationals’ legal connection with the state,
depriving them of all the privileges they had due to that connection (for example, the right to
consular protection). These actions enable to bring the population of a certain territory under
control of authorities of the aggressor state, threaten the world order and are a means of
aggressive expansion of the Russian Federation.
In Crimea, there was created a dangerous precedent for which contemporary international
law appeared unprepared. Mainly addressing the issues of eliminating statelessness,
international law has left the issue of arbitrary imposition of nationality almost entirely neglected.
This issue today requires attention from the international community and development of
new additional principles because it has a significant impact both in the context of foreign
policy relations and public international law as well as in the context of human rights.
The possibility of reviewing the situation in the context of international human rights
standards gives each victim affected by Russia’s actions the opportunity to directly appeal
to international judicial and quasi-judicial bodies in order to protect his rights and initiate a
dialogue at international level.
Recommendations to the international community:
• With assistance of the institute of special rapporteurs of the international organizations to
provide a detailed examination of the situation regarding the imposition of Russian nationality
on residents of the occupied territory of the Crimean Peninsula.
• To attract international expert institutions to develop recommendations on resolving the
situation resulting from the imposition of Russian nationality on residents of the occupied
territory of the Crimean Peninsula.
• To attract international expert institutions to develop universal standards for ensuring the
rights of persons subjected to naturalization protecting them against the arbitrary actions of
the state, taking into account such nationals’ will and protecting their rights.
• With assistance of consular services to ensure control over the non-recognition of the
status of Russian nationals obtained by nationals of Ukraine who live in the occupied territory
of the Crimean Peninsula (for example, in terms of impermissibility of issuing visas to such
people as Russian nationals through the relevant consular institutions, in terms of prohibition
for consular institutions of the Russian Federation to provide such nationals with consular
assistance, their extradition to the Russian Federation or at the request of Russia, etc.).
Consequences of human rights violations by the Russian Federation
in the occupied territories of the Autonomous Republic of Crimea and
the city of Sevastopol (the question of citizenship)
International Covenant on Civil and Political Rights (hereinafter - the Covenant) provides
an example of the general principle of equality that underlies international human rights law
(IHRL) in its relation to non-citizens, and the limited nature of the exceptions to this principle.
According to part 1 of Article 2 of the Covenant, each State party:
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«undertakes to respect and to ensure to all individuals within its territory and subject to
its jurisdiction the rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status”.
Moreover, Article 26 of the Covenant states that:
“All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status”.
International Court of Justice, the Human Rights Committee of the United Nations, as well
as states in practice believe that the provisions of the Covenant apply also in the occupied
territories94.
The UN Human Rights Committee explains that:
«The rights enshrined in the Covenant apply to everyone, irrespective of reciprocity, and
irrespective of his or her nationality or statelessness. Thus, the general rule is that each
one of the rights of the Covenant must be guaranteed without discrimination between
citizens and aliens.»
The Human Rights Committee also noted that the right of non-citizens can be accompanied
only by such limitations that may be lawfully imposed under the Covenant. More specifically,
the Covenant permits to the States to draw distinctions between citizens and non-citizens
with respect to two categories of rights: political rights explicitly guaranteed to citizens
(participation in public affairs, right to vote and to be elected and to have access to public
service), and freedom of movement95.
Similar to Part 1 of Article 2 of the Covenant, Part 2 of Article 2 of the International Covenant
on Economic, Social and Cultural Rights declares that States parties guarantee the rights
enunciated in that Covenant «without any discrimination as to race, color... national or social
origin ... or other status»96.
In its turn, the Committee on the Elimination of Racial Discrimination, in its recommendation
XXX on discrimination against non-citizens indicated that97:
«States have an obligation to guarantee equality between citizens and non-citizens
in the enjoyment of their civil, political, economic, social and cultural rights to the extent
recognized under international law and as set out in particular in the Universal Declaration
of Human Rights, the International Covenant on Economic, Social and Cultural Rights and
the International Covenant on civil and political Rights».
As a result of violations of international law by the Russian Federation in the context of the
imposition of Russian citizenship to citizens of Ukraine, those who reside in the occupied
territories of Crimea do not enjoy those rights that had to be guaranteed under international
law. Moreover, in the context of the occupation of the AR Crimea and Sevastopol they are
very often at risk of their own safety and well-being (criminal and administrative liability,
discrimination, especially on ethnic grounds, etc.)
1. A passport of a citizen of the Russian Federation is a prerequisite for the realization of
a significant number of rights to residents of Crimea. Namely, it is more complicated for him
to receive all kinds of social benefits, obtain a driver’s license, register a vehicle, be employed
94 Sassoli, “How Does Law Protect In War”, Volume I, Outline of IHL (3rd Edition), p. 357.
95 See General Comment number 15 (1986) of the Human Rights Committee on the position of aliens under the Covenant.;
With regard to freedom of movement, Article 12 (1) provides “the right to liberty of movement and freedom to choose his
residence” only to persons who are “lawfully within the territory of a State”, i.e., apparently permitting restrictions against
migrants without proper documents.
96 http://www.ohchr.org/Documents/Publications/noncitizensen_ru.pdf
97 http://www.refworld.org/docid/45139e084.html
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in certain positions (public institutions), obtain of land plots, free medical care, re-registration
of ownership98. This was openly declared by the official representatives of the authorities of
the Russian Federation.
Office of the United Nations High Commissioner for Human Rights in its report of 15 April
2014 on the human rights situation in Ukraine noted99:
«Measures such as the introduction of Russian citizenship will complicate the lives of those
who want to preserve their Ukrainian citizenship in Crimea and will raise questions about
the legality of residence, the loss of social and economic rights, including the right to work.»
Commissioner for Human Rights in the Republic of Crimea (“Ombudsperson”), in his
report for 2014 confirmed this fact:
«It is not necessary to explain the legal consequences of the absence of the passport
of the State in which as person resides. This makes for a person impossible to implement
almost all the fundamental rights and freedoms (emphasis is the author’s note), set forth
in the Constitution. In particular, it leads to impossibility to be employed, to receive social
security, which could lead to lower standards of living and an increase in the crime rate.
Therefore, I believe that immediate measures should be taken to address the problems of
citizens related to the possibility of obtaining passports”.100
The Ombudsperson in this report also notes that according to information received in the
Office of the Federal Migration Service for the Republic of Crimea for the period from March
2014 there were issued 1,560,162 passports of Russian citizens. Given that the approximate
population of Crimea is about 2.3 million. That is to say that as of the end of 2014 slightly
less than 1 million people are not passportized in Crimea101. Hence, so many people do not
enjoy a significant number of their rights, either being opposed to the imposition of Russian
passports, or due to objective reasons (mentioned in the first section) being unable to obtain
Russian citizenship.
2. Federal Law of the RF no. 142-FZ «On Amendments to Articles 6 and 30 of the Federal
Law» On Citizenship of the Russian Federation” and Certain Legislative Acts of the Russian
Federation» was adopted on 04.06.2014. This law establishes the possibility of criminal
liability for concealing the existence of a second citizenship (for Crimeans, this norm of law of
the Russian Federation will take effect from 1 January 2016)102. After that date, all the citizens
of Ukraine who are registered and living in Crimea will have to report if they have Ukrainian
citizenship. Whereby concealing of information on citizenship entails serious liability up to
criminal (art. 330-2 of the Criminal Code)103. If the citizens inform about their dual citizenship
after the schedualed date or indicate incomplete or obviously inaccurate data, they will face
administrative responsibility - a fine of 500 to 1000 rubles. All the internally displaced persons
from Crimea can also get under these rules. On 21 September 2015 on the official website of
the Federal Migration Service of Russia there was published a clarification on the notification
about the other citizenship and renouncing the Ukrainian citizenship by Crimeans104.
Taking into account the above mentioned, it can be assumed that if the situation does not
change in Crimea regarding citizenship the residents of Crimea who have preserved Ukrainian
98 A striking example is the situation with the judges in the territories occupied by the Russian Federation. According to
article 4 of the Federal Constitutional Law of the Russian Federation No 6ZH, before the setting up of federal courts in
the territory of Crimea, the justice on behalf of the Russian Federation is dispensed in these areas by the courts which
were operating at the time of the occupation, and the judges of these courts are receiving the status of persons who
replace judges of these courts. The condition for the admission of these persons to justice was obtaining of Russian
citizenship, the transfer of passport of Ukraine to the Russian authorities, as well as the submitting to the Russian
authorities of a declaration about renunciation of Ukrainian citizenship.
99 http://www.un.org.ua/images/stories/Report_15_April_2014_en.pdf
100 http://crimea.gov.ru/textdoc/ru/7/act/393pr.pdf .
101 http://crimea.gov.ru/textdoc/ru/7/act/393pr.pdf
102 http://www.rg.ru/2014/06/06/grajdanstvo-dok.html
103 http://www.consultant.ru/popular/ukrf/10_45.html
104 http://www.82.fms.gov.ru/press/news/item/51894/. Аrchive: https://web.archive.org/web/20160209125758/http://
www.82.fms.gov.ru/press/news/item/51894/
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passports, may face further problems connected with informing about «dual» citizenship.
3. In accordance with the Decree of the Government of the Russian Federation «On
the distribution among the constituent entities of the Russian Federation of quotas for the
issuance of temporary residence permits in the Russian Federation for 2015 for foreign
citizens and stateless persons» no. 2275-r of 14 November 2014, there was established the
quota for residents of Crimea (the citizens of Ukraine and other states) for the issuance of
permits for temporary residence in the Russian Federation for 2015. The quota for Crimea is
1500 permits, of them 400 permits for the city of Sevastopol105 (in 2014 this quota was 5,000
permits for the AR Crimea and 400 for Sevastopol).
Citizens of Ukraine who do not wish to obtain Russian citizenship, but wish to constantly
continue to live in Crimea, are limited in their ability to get a temporary residence permit in
the territory over which the sovereignty of Ukraine is extended. Thus, those persons who
exceed the allocated quota will not be able to get the documents in order to continue to
reside permanently in Crimea.
Restrictions and other quotas regarding where non-citizens may live in the state, particularly
the restrictions and quotas which may be associated with an element of coercion, can violate
their right to freedom of movement106.
4. In a particularly vulnerable position were orphans and children in the care or custody
of state authorities. According to official data as of 08.01.2014, there were 4228 of such
children in Crimea. Administration of all the institutions of Crimea began to collaborate with
the Russian authorities. Children are effectively deprived of the right to choose citizenship
(obtaining of Russian passports is provided upon reaching the age of 14). On 05.06.2015
the Head of the Department for observance of the rights of the child, non-discrimination and
gender equality of the Secretariat of the Commissioner for Human Rights of Verkhovna Rada
of Ukraine Aksana Filipishina informed about this problem during a press conference on
«Violations of children’s rights in the occupied Crimea»107.
105 http://government.ru/media/files/7CP91bGabOg.pdf
106 European Commission against Racism and Intolerance, Second report on Denmark (CRI (2001) 4, paras. 18–25).
107 http://www.ombudsman.gov.ua/ua/all-news/pr/5615-sm-aksana-filipishina-prava-ditini-v-krimu-pochali-porushuvativid-
samogo/; http://health.unian.net/country/1085947-ukrainskim-detyam-sirotam-v-kryimu-prinuditelno-prisvaivayutrossiyskoe-
grajdanstvo.html
CRIMEA BEYOND RULES
Other issues of the series.
By the time this issue is published, the following issues has already came out or
are ready for publication:
Issue 1. The right to liberty of movement and freedom to choose residence.
Issue 2. Right to property.
Special issue. Transfer by the Russian Federation of parts of its own civilian
population into the occupied territory of Ukraine.
Issue 3. Right to nationality (citizenship).
Issue 4. Freedom of expression (under preparation).
These and other materials devoted to the observance of the international standards
of human rights by the authorities of both Ukraine and the Russian Federation with
reference to the occupation of the Crimean peninsula could be found on eh website
precedent.crimea.ua
Do you need assistance in applying to the European Court of Human Rights? Fill up
a form on goo.gl/forms/KLqi9LsA5Z
Would you like to share your opinion or offer material for publication in following
issues?
Contact [email protected]
© RCHR
© UHHRU
«CRIMEA BEYOND RULES. Thematic review of the human rights situation under
occupation.» - Vol. 3 - Right to nationality (citizenship) / Edited by S. Zayets,
R. Martynovskyy, D. Svyrydova. – Kyiv, 2017. – 52 p.
The publication is aimed at representatives of international organizations,
diplomatic missions, government bodies and professional legal community, who
need information on the practical application of international human rights standards
under occupation of the Crimea.
Thematic review is published in electronic form and is for free distribution. The
materials are available in three languages - Ukrainian, Russian and English. Use of
Content is permitted with the obligatory reference to the source and authorship. If
the author of the material is not explicitly stated, all rights to the material belong
to the expert-analytical group CHROT. The materials included in the publication, as
well as other materials on the topic can be found on the website precedent.crimea.
ua
Annex 1027
Natan Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimination
(2015)
The UN Convention on the
Elimination of All Forms of
Racial Discrimination
Reprint Revised by Natan Lerner
By
NatanLemer
BRILL
NIJHOFF
LEIDEN ] BOSTON
Nijhoff Classics in
International Law
VOLUME 3
The titles published in this series are listed at brill.com/ncla
Contents
Introduction: ICED, Fifty Years After IX
Introduction to the Second Edition XXXI
Preface to the First Edition XXXV
Guide to United Nations Documents :xxxvn
PART I
The Preparation of the Convention
1 Resolutions on Racial Prejudice and Religious Intolerance 3
2 Resolutions on the Draft Declarations and Conventions 3
3 Preparation of the Convention 5
4 Work of the Sub-Commission 6
5 Work of the Commission on Human Rights 6
6 Draft of the Third Committee 7
7 Vote in the General Assembly 8
PART 2
Scope and Significance of the Convention
1 The Convention and the IntemationaJ Bill of Rights 11
2 Universality of the Convention 13
3 Balance between Freedoms 15
4 Measures of Implementation and the Right of Individual Petition 16
PART 3
Interpretation of the Convention
1 The Preamble 21
1 Discussion in the Sub-Commission 22
2 Discussion in the Commission 24
3 Discussion in the Third Committee 25
4 Contents of the Preamble 26
5 Reference to Nazism 28
VI
Substantive Articles 30
Article 1 Definition of Racial Discrimination 30
Article z Obligations of State 38
Article 3 Apartheid 44
Article 4 Measures to Eradicate Incitement and Prohibition
of Racist Organizations 47
Article 5 Rights Specially Guaranteed by the Convention 57
Article 6 Remedies Against Racial Discrimination 63
Article 7 Steps in the Fields of Education and Information 65
3 Substantive Articles not Incorporated in the Convention 67
Article on Interpretation 67
2 Other Articles Deleted 69
3 Article on Anti-Semitism 7o
4 Measures of Implementation 76
1 Drafting of the Articles on Implementation 76
2 Contents of Part Il of the Convention 77
3 Recourse to Other Procedures 91
5 Final Clauses-Reservations 94
1 Signature and Ratification 94
2 Accession 95
3 Entry into Force 95
4 Reservations 95
5 Denunciation 97
6 Settlement of Disputes 97
7 Revision 97
8 Notifications 99
9 Authentic Text 99
10 Omitted Clauses 99
PART4
The Work of the Committee
1 Rules of Procedure and Guidelines for Reporting 103
1 Meetings. Membership. Voting. Publicity 103
2 Reports and Communications from States Parties 106
CONTENTS
CONTENTS VII
3 Procedural Rules for Inter-State Complaints 107
4 Guidelines for the Content of Reports 108
2 The Reporting System 14
1 Difficulties and Misconceptions 14
2 Suggestions and General Recommendations n7
3 Sources of Information. The Role of NGos 118
3 Article 15 and the Practice of the Committee 120
1 The Committee's Powers Under Article 15 120
2 The Working Groups 122
3 Souther Rhodesia and Namibia 123
4 Other African Territories 125
s African Territories under Portuguese Administration 125
6 Pacific and Indian Ocean Territories 127
7 Caribbean and Atlantic Territories 127
8 Petitions 128
a4 Occupied or de facto Controlled Territories 129
1 The Panama Canal Zone 130
2 The Golan Heights 132
3 Cyprus 136
4 The West Bank of the River Jordan 138
5 Sinai 139
6 Criticism of the Committee's Action 139
5 Relationship with the U.N. General Assembly and other Bodies 141
The Committee and the U.N. General Assembly 141
2 Cooperation with 1Lo and UNESCO 145
6 Composition of the Committee 147
PART 5
Status of the Convention
1 Signatures, Ratifications and Accessions 153
2 Declarations and Reservations 154
3 Declarations on the Optional Procedure (Article 14) 160
VIII
PART6
The Impact of the Convention
1 At the National Level 165
CONTENTS
2 At the International Level 203
1 The UNESCO Declaration on Race 2o3
2 World Conference to Combat Racism and Racial Discrimination 2o8
g3 The Convention on Apartheid 2o9
Conclusions: A Decade After 211
Appendices
1 International Convention on the Elimination of all Forms
of Racial Discrimation 217
2 United Nations Declaration on the Elimination of All Forms
of Racial Discrimination 230
3 UNESCO Declaration on Race and Racial Prejudice 234
4 Status of the Convention 243
Select Bibliography 245
Index 248
About the Author 256
58 PART3- CHAPTER 2
A Polish amendment to add, after paragraph (d) (v), a new sub-paragraph
(vi)-the right to inherit--was adopted.
3 Discussion in the Third Committee
Several amendments were submitted In the Third Committee to the draft as
approved by the Commission on Human Rights. An amendment by
Czechoslovakia to insert the word "national" before the words "or ethnic origin"
in the introductory paragraph was adopted by a majority. The Committee
also adopted an amendment by Bulgaria to insert, in paragraph (c), after the
word elections," the words "to vote and to stand for election."
A proposal of Mauritania, Nigeria and Uganda to add, in paragraph (d) (1v),
the words and choice of spouse," after the word "marriage," was accepted. The
Committee rejected by thirty-seven votes to thirty-three, with twenty-four
abstentions, a proposal by the same countries to replace paragraph (e) (vi) by
the following text: "The equal right to organize cultural associations and to
participate in all kinds of cultural activities."
4 Contents of Article 5
The Declaration on the Elimination of all Forms of Racial Discrimination does
not contain any general article enumerating rights particularly guaranteed.
Article 3 of the Declaration refers to civil rights, accesss to citizenship, education,
religion, employment, occupation, housing and equal access to any place
or facility intended for use by the general public. Article 5 of the Declaration
deals with political and citizenship rights and equal access to public service,
and Article 7 proclaims the right to equality before the law and to equal justice
under the law, and the right to security of person and protection by the State
against violence or bodily harm.
Article 5 of the Convention has an opening paragraph and six paragraphs
enumerating some rights selected for special mention. The opening paragraph
refers to Article 2 of the Convention, which determines the fundamental obligations
of States Parties, repeats--unnecessarily, according to some delegates-
their undertaking to eliminate racial discrimination in all its forms,
and imposes upon them the obligation to guarantee the right of everyone,
without distinction as to race, colour or national or ethnic origin, to equality
before the law. This is the general principle, intended to be as wide as possible,
for which purpose the word everyone" was used. The inclusion of the words
"equality before the law" in the opening, and not in the enunciating paragraph,
54 The word everyone" was objected to, since some delegates considered that distinctions
between citizens and non-citizens could legitimately be made by any State with regard to
the enjoyment of some rights, as determined by Art. 1 of the Convention.
SUBSTANTIVE ARTICLES 59
has also the same purpose of establishing the general principle. The word
"notably" was used in order to avoid a restrictive interpretation of the rights
enumerated
As said before, some delegations would have preferred a more general and
less detailed wording, with a view to preventing such an interpretation, which
could be deemed as logical in the light of the extension of the enumeration.
There were also proposals to add a clause stating that the omission of any
rights mentioned in the Universal Declaration did not imply that such a right
was intentionally excluded from protection by the Convention.
The enumeration of rights in Article 5 should, thus, not be considered as
exhaustive. The Article is a typical catalogue of human rights with regard to
which discrimination on grounds of race, colour or national or ethnic origin is
prohibited. Most of the rights correspond to those listed in the Universal
Declaration. No attempt will be made here to discuss the nature, scope or
interpretation of the enumerated rights.55
Paragraph (a) refers to the right to equal treatment before the tribunals and all
other organs administering justice. There were proposals to proclaim the right
to a fair trial" and to "equal treatment before the courts." Finally the words
used were agreed upon as clear and broad enough.
The paragraph guarantees the right of everyone who seeks justice before a
competent organ not to be discriminated against because of racist motivations.
It should not be confused with Article 6 of the Convention, which refers
to protection and remedies through the competent tribunals in case of violations
of the Convention.5°
Paragraph (b) deals with the ri g ht to security of person and protection by the
State against violence or bodily harm, whether inflicted by government officials or
by any individual, group or institution. The wording of the Declaration on the
Elimination of all Forms of Racial Discrimination was here followed.57
The violence or bodily harm can be inflicted by public officers or by private
individuals or groups. The word "institutions" should be intepreted as referring
to violence or harm inflicted through agents or officials of an institution. The
purpose of the paragraph is to avoid any distinction in the protection of individuals
against any violence, whoever inflicts it.
55 See, iter alia, N. Robinson, The Universal Declaration of Human Rights, New York, 1958,
and H. Lauterpacht, International Law and Human Rights, London, 19so. See, also, as relevant,
the rich literature on the European Convention on Human Rights.
56 See Art. 7 of the Universal Declaration of Human Rights and Arts. 14 and 26 of the
Covenant on Civil and Political Rights.
57 See Art. 3 of the Universal Declaration and Art. 7 of the Covenant on Civil and Political
Rights.
60 PART3 -CHAPTER 2
Paragraph (c) deals with political rights, in particular active and passive
electoral rights, i.e. to vote and to stand for election, on the basis of universal and
equal suffrage, to take part in the Government as well as in the conduct of public
affairs at any level and to have equal access to public service. Article 6 of the
Declaration on the Elimination of all Forms of Racial Discrimination refers to
political and citizenship rights and to the right to participate in elections through
universal and equal suffrage.""
Paragraph (c) does not deal with the problem of citizenship. The principle is
that nobody should be deprived, because of reasons of race, colour, national or
ethnic origin, of political rights to which he Is entitled as a national of the
country. The words "to participate in elections" should be understood in a
broad sense, in connection with the words "to vote and to stand for election,"
as covering the complete set of active and passive electoral rights.
In the Sub-Commission some difficulties arose with regard to a proposal by
the Soviet expert to have the right proclaimed to actual participation by racta1,
national and ethnic groups in legislative and executive bodies. The amendment
was withdrawn when the majority of the experts stated their opposition
to a reference to groups, on the basis of the view that the Convention should
protect the rights of the individual and not touch the complicated matter of
the rights of groups as such.
Paragraph (d) deals, in its nine sub-paragraphs, with other civil rights."
Those mentioned in particular are:
(i) the right to freedom of movement and residence within the border of the
State. The Convention here literally follows the wording of Article 13() of
the Universal Declaration of Human Rights;"
(ii) the right to leave any country, including his own, and to return to his
country,"
(iii) the right to nationality. Article 15(1) of the Universal Declaration proclaims
that everyone has the right to a nationality. Article 3 of the
58 See Art. z of the Universal Declaration and Art. as of the Covenant of Civil and Political
Rights.
59 The ten civil rights" is not used in Art. 1 of the Convention. The omission cannot be
covered by the words any other field of public life" since some rights mentioned in Art.5
under the heading of civil rights" do not belong to the field of public life.
6o See Art. 1 of the Covenant on Cvil and Political Rights.
61 See Art. 13(2) of the Universal Declaration and Art. 2 of the Covenant on Civil and
Political Rights.
SUBSTANTIVE ARTICLES 61
Declaration on the Elimination of all Forms of Racial Discrimination
deals with "access to citizenship;°
(iv) the right to marriage and choice of spouse. As expressed before, the words
"and choice of spouse" were added in the Third Committee, at a suggestion
of Mauritania, Nigeria and Uganda. This addition is related to the
laws existing in some countries that prohibit inter-racial marriage;
(v) the right to own property alone as well as in association with others. This is
the literal text of Article 17(1) of the Universal Declaration. The Covenants
do not mention this right;
(vi) the right to inherit. The Commission on Human Rights adopted a Polish
amendment to mention specifically this right, to which neither the
Universal Declaration, nor the Covenants, nor the Declaration on the
Elimination of All Forms of Racial Discrimination refer explicitly;
(vii) the right to freedom of thought, conscience and religion. This right is proclaimed
in Article 18 of the Universal Declaration and Article 18 of the
Covenant on Civil and Political Rights;
(viii) the right to freedom of opinion and expression, which is recognized by
Article 19 of the Universal Declaration and Article 19 of the Covenant on
Civil and Political Rights;
(ix) the right to freedom of peaceful assembly and association. The Convention
followed the wording of Article 2o(1) of the Universal Declaration.
Articles 20 and z1 of the Covenant on Civil and Political Rights deal,
respectively, with those two.
Paragraph (e) refers to economic, social and cultural rights, and mentions in
particular the following:
(i) the right to work, free choice of employment, just and favourable conditions
of work, protection against unemployment, equal pay for equal
work, just and favourable remuneration. These are the same rights enunciated
in Article 23, paragraphs (1), (2) and (3) of the Universal Declaration.
The rights of employment and occupation are also mentioned in Article
3 of the Declaration on the Elimination of all Fors of Racial
Discrimination. In connection with this sub-paragraph, the provisions of
62 Art. 24 of the Covenant on Civil and Political Rights states that every child has the right to
acquire a nationality, but no reference is made to adults.
63 The Universal Declaration, Art. 16(1) proclaims the right to marry and to found a family.
Art. 23 of the Covenant on Civil and Political Rights and Art. 1o of the Covenant on
Economic, Social and Cultural Rights deal with this right.
62 PART 3 - CHAPTER 2
the 1Lo Convention concerning Discrimination in Respect of Employment
and Occupation, and Articles 6 and 7 of the Covenant on Economic,
Social and Cultural Rights, should be taken into consideration;
(ii) the right to for and join trade unions. This right is established in
paragraph (4) of the above-mentioned Article of the Universal Declaration
and in Article 8 of the Covenant on Economic, Social and Cultural
Rights;
(iii) the right to housing, mentioned in Article 3 of the Declaration on the
Elimination of all Forms of Racial Discrimination and included among
the rights enunciated in Article 2 of the Universal Declaration. This right
Is enunciated in Article u of the Covenant on Economic, Social and
Cultural Rights;
(iv) the right to public health, medical care and social security and social services.
These rights are enunciated in Article 2s of the Universal
Declaration. Articles 12 and 9 of the Covenant on Economic, Social and
Cultural Rights deal with these aspects;
(v) the right to education and training. The right to education Is mentioned
in Article 3 of the Declaration on the Elimination of all Fors of Racial
Discrimination, and is dealt with in Article 26 of the Universal Declaration
and Articles 13 and 1a of the Covenant on Economic, Social and Cultural
Rights. The provisions of the UNESCO Convention Against Discrimination
in Education should also be taken into consideration.
The word "education" should be used in the sense of the definition
contained in the UNESCO Convention. Situations like those enumerated
in Article z of the UNESCO Convention-separate educational systems
or institutions in order to keep the two sexes apart, or for religious or linguistic
reasons, or in order to provide additional educational facilities-shall
not be deemed to constitute discrimination, when permitted in a
State. The right to training should be connected with the right to work as
established in subparagraph (i). The ILO Convention deals with the right
to vocational training. also recognized In Article 6 of the Covenant on
Economic, Social and Cultural Rights;
(vi) the right to equal participation in cultural activities. Article z27 of the
Universal Declaration and Article 1s of the Covenant on Economic, Social
and Cultural Rights deal with this right
The last paragraph, (f), refers to the right of access to any place or service
intended for use by the general public such as transport, hotels, restaurants, caf~s,
theatres, parks. Articles 3 of the Declaration on the Elimination of all Forms of
Racial Discrimination proclaims that everyone shall have equal access to any
SUBSTANTIVE ARTICLES 6g3
place or facility intended for use by the general public. This right is not mentioned
in the Universal Declaration.
The enunciation of public places and services should not be interpreted in
a restrictive way, as indicated by the use of the words such as."
Article 6. Remedies Against Racial Discrimination
Article 6 reads:
States Parties shall assure to everyone within their jurisdiction effective
protection and remedies through the competent national tribunals and
other State institutions against any acts of racial discrimination which
violate his human rights and fundamental freedoms contrary to this
Convention, as well as the right to seek from such tribunals just and adequate
reparation or satisfaction for any damage suffered as a result of
such discrimination.
Discussion in the Sub-Commission
The Sub-Commission considered three drafts, proposed, respectively, by
Messrs. Abram,' Calvocoressi and, jointly, Cuevas Cancino and Ingles.66
After a discussion, Messrs. Abram, Calvocoressi and Capotorti67 submitted a
new draft, which was orally revised and unanimously adopted. It referred to
"effective remedies and protection through independent tribunals" and to the
right to obtain from such tribuna1s reparation for any damages suffered as a
result of racial discrimination. The text did not include reference to other
State institutions," as does the final text adopted by the Assembly.
2 Discussion in the Commission
The discussion in the Commission centred around the nature of the tribunals
which were to assure remedies and protection and to the question of the remedies
themselves.
The Commission finally adopted a revised text proposed by Lebanon, incorporating
the various amendments proposed and corresponding very closely to
the final text There was general agreement, in the sense that the tribunals
64 E/CN.4/Sub.2/L.308.
65 E/CN.4/Sub.a/L.-309
66 E/CN4/Sub.z/L-330.
67 E/CN.4/Sub2/L.339.
64 PART 3 - CHAPTER 2
mentioned in the Article should be independent national tribunals. The
absence of the word "national" was considered a simple omission. The word
"competent" proposed by the Soviet Union, was intended to contemplate the
creation of new tribunals that might have to be set up to consider exclusively
cases of racial discrimination. It was pointed out, however, that the word was
used, in a similar context, in Article 8 of the Universal Declaration of Human
Rights, as just meaning legal competence. It was also suggested that the qualification
of impartial" be added when referring to the tribunals, but it was considered
unnecessary since the word "independent" had already been used.
The United Kingdom proposed to insert the words "contrary to the present
Convention" after racial discrimination" in order to clarify in which cases the
remedies and protection were available. The suggestion was opposed on the
ground that it cou1d narrow the scope of the article. Agreement was reached
on the phrase as stated in the proposal of Lebanon.
The Commission decided to refer to the right to seek" reparations, in order
to avoid prejudgement on the question whether reparations were pertinent or
not in a given case. The representative of Austria proposed to add the words
"just satisfaction" to cover cases where pecuniary damages were insufficient. It
was decided to refer to "just and adequate reparation or satisfaction," in spite
of the fact that some members of the Commission considered that those were
subjective terms which would create d.iffi.cu1ties for the tribunals. It was understood
that the right to obtain reparation should cover not only reparation for
financial damage, but also the restoration of the victim's rights.
3 Discussion in the Third Committee
The Third Committee only voted upon one amendment, proposed by Bulgaria,
intended to insert the words "and other State institutions" between the words
tribunals" and "against." The amendment was adopted.
4 Contents of Article 6
Article 6 should be compared with Article 8 of the Universal Declaration of
Human Rights, Article z of the Covenant on Civil and Political Rights, and
Article 7(2) of the Declaration on the Elimination of all Forms of Racial
Discrimination. The first grants the right to an effective remedy by the competent
natural tribunals for acts violating fundamental rights. Article 2 of the
Covenant refers to an effective remedy by competent judicial, administrative
or legislative authorities. The Declaration on Racial Discrimination speaks
about an effective remedy and protection against any discrimination on the
ground of race, colour or ethnic origin, through independent national tribunals
competent to deal with such matters. The Convention goes further than the
Annex 1028
Yevhen Fedchenko, Kremlin Propaganda: Soviet Active Measures by Other Means, Estonian
Journal of Military Studies, Volume 2 (2016)
KREMLIN PROPAGANDA:
SOVIET ACTIVE MEASURES BY OTHER MEANS
Yevhen Fedchenko
This article traces the evolution o f Russian propaganda and its role in active
measures. Active measures were originally conceived during the Soviet era
but still remain operative as they were recently deployed during the Russian
occupation o f Crimea and the war against Ukraine in Donbas. During these
events active measures underwent something o f a renaissance as there was
the dramatic upsurge in propaganda usage and media manipulation. Fake
media stories and forgeries have long played an integral part in the active
measures that have been conducted by the Kremlin, which then amends its
manufacture
and dissemination o f fake news stories is carried out in a centralized
and systematic fashion as the fabrications must be coherent and maintain
alignment Kremlin's policies talking points. the use o f media-related active measures is not a new phenomenon and was
widely utilized by the former Soviet Union as a way o f actualizing its foreign
policy by clandestine means. When examining more than 500 Russian propaganda
pieces, which were debunked by the StopFake.org verification project,
it becomes evident that the same o f falsification and deception patterns that
were common to the USSR already in the 1950's, are still present today. The
only difference is the parasitic way in which the current Kremlin propaganda
has seized on core liberal Western concepts, such as the promotion o f freedom
o f speech, and then used this as a screen to allow it to deliver ‘the other point
o f view’. Whereas before the Kremlin historically relied on traditional media,
such as printed news to distribute its fake news stories, it now makes use o f a
much wider array o f mediums such as the internet and social media.
Sojateadlane pp. 141-170 ee/Abstract
of of of military capacity and diplomacy efforts to cover up the deceit. The manufacture
of with the Kremlin s and It will be shown that
of of propaganda
org it of 1950s, of freedom
of 'of view ' of of S0jateadlane (Estonian Journal of Military Studies), Volume 2, 2016, 141.170 www.ksk.edu.ee/publikatsioonid
142 The Russian occupation of Crimea and the war against Ukraine in Donbas
was an apogee in terms of propaganda usage, media manipulations, fake
news stories, and forgeries propounded by the Kremlin. These are a just a part
by military
part strategy hybrid war.
Peter Pomerantsev describes the concept of hybrid war:
Described by scholars as ‘hybrid’, ‘full-spectrum’, ‘non-linear’, ‘next-generation’,
or ‘ambiguous’—the variations in the description indicate the slipperiness
o f the subject—these conflicts mix psychological, media, economic,
cyber, and military operations without requiring a declaration o f war1.
The War in the Eastern Ukraine has been devastating and traumatic for the
populace impact, especially auspices
agreements signed. information
war has ceased. As a component of hybrid war, information war is
especially alarming because its influences are proliferating and it is having
more of a global impact as an increasing number of countries find traces of
occurring territory.
collapse
ways used separates the Soviet information war from contemporary Russian hybrid
war. The Soviet Union considered these activities to mainly be part of covert
operations that never were publicly declared, articulated or disclosed and
any government agencies. present
government coopts public opinion manipulation
part public foreign audiences.
President Putin has used a similar approach to openly describe the importance
of the informational component of the military strategy of Russia. At
opening RT’s Spanish-language broadcasting facility Argentina stated: “The rapid progress reporting
1
1 <http://www.theatlantic.com/intemational/archive/2015/12/war-2015-china-russiaisis/
422085/> (accessed February 9, 2016).
YEVHEN FEDCHENKO
What are active measures?
of the active measures conducted Russia, which then amends its capacity and diplomatic actions to conceal the deception. These actions are
of an overall that has been termed war
Pomcrantscv dcscnbcs war.
by 'hybrid', 'full-spectrum' 'linear' 'generation',
'ambiguous' slipperiness
of subject of war'.
local but has had limited national and received even less
attention outside of Ukraine, since the ceasefire under the of the Minsk was Yet this does not mean that the information
Russian active measure in their territory
Information warfare and active measures have evolved since the of the Soviet Union. The in which media-related active measures were
could not be traced back to Soviet agencies The Russian these instruments of manipulation
and makes them a visible of the discourse for domestic and
importance
the of RTs in he
stated. "The of electronic media has made news interational/russiaisis/
2016)
the manipulation of public opinion”2.
important
instrument
technologies:
11. There is a tendency towards shifting the military risks and military threats
to the information space
12.l) The use of information and communication technologies for the militarypolitical
purposes to take actions which run counter to international law,
and which are aimed against sovereignty, political independence, territorial
integrity o f states and posing threat to international peace, security, global
and regional stability
13.c) subversive information activities against the population, especially
young citizens o f the State, aimed at undermining historical, spiritual and
patriotic traditions related to the defense o f the Motherland.3
war /.../ force4 5.
follows:
The disorganization o f the functioning o f key military, industrial, and administrative
facilities and systems o f the enemy and also the information-psychological
effect on his military-political leadership, troops, and population with
the use o f modern information technologies and means3.
During the opening of the RT Spanish broadcasting facility in Argentina on
especially
Internet):
2 <http://en.kremlin.ru/events/president/news/46762> (accessed January 15, 2016).
3 <http://kremlin.ru/events/president/news/47334> (accessed February 05, 2016).
4 See <http://kremlin.ru/supplement/461> (accessed January 15, 2016).
5 Nogovitsyn, Anatoliy 2009. At the Centre of Attention—Information Security. - Krasnaya
34, 27, 2009, p. 1.
KREMLIN PROPAGANDA 143
enormously important and turned it into a formidable weapon that enables
opinion"
The Kremlin considers such manipulation to not only serve as an important
instrument for conducting foreign policy, but also to serve as an instrument
for conducting or supplementing military warfare. The Russian military
doctrine that was adopted in December 2014 emphasizes the importance of
information and information II 12/ militarypolitical
of I3.c) of of Motherland.
An older version of the Military Doctrine from 2010 also mentioned (article
13d) of use of information war/ ./ to pre-empt the use of the military force
or to form positive public opinion after the use of military force'
Anatoliy Nogovitsyn, former Deputy Chief of General Staff of the Armed
Forces of the Russian Federation, defines the role of information in hybrid
war as follows
of of administrative
of psychological
of means°
July 2014, President Putin also focused on the importance of media, especially
electronic media (first of all television but also Intcmet):
en ru/news46762> 2016)
ru/2016)
I5, 2016)
Attention-Secunity. Zvezda, February p. I
Intense media warfare has become a mark o f the times, when certain nations
attempt to monopolize the truth and use it in their own interests.6
countries. President
that he means the West in general, and the United States and NATO in
particular. This is also overtly stated in the Military Doctrine. This policy
puts reactively position Russia’s o f Military Chief-of-Staff Valery Gerasimov complained that Russian knowledge of asymmetric
warfare was “superficial.” The North Atlantic Treaty Organization,
and the United States in particular, had demonstrated their mastery of nonmilitary
campaigns in the Arab Spring and Ukraine’s pro-Western Orange
Revolution in 2004, Gerasimov said. Such modesty is disingenuous. Disinformation
and subversion as weapons of war are as old as catapults and cavalry.
The Kremlin’s advantage in the information age is that all of Russia’s major
media outlets are under its control, allowing it to hammer its audience with
one, unified message. The Kremlin claim that it’s in an “information war”
with the West implies that there is vast conspiracy among myriad media in
the United States and Europe, public and private, to produce the same lies
about Russia.
7
money and human talent into organizations that broadcast to an international
audience like RT (formerly known as Russia Today), Sputnik International
(formerly known as the Voice of Russia), Ruptly, RIA (that still operate as
“media” organizations propaganda
brands from the Cold era, while others are quite new.
RT was created in 2005, immediately after the Orange Revolution in
Ukraine and was fully operational by the Russian invasion of Georgia in
2008. Sputnik International was launched during the Euromaidan uprising
Kyiv.
6 <http://en.kremlin.ru/events/president/news/46762> (accessed January 15, 2016).
7 <http://blogs.reuters.com/great-debate/2016/02/07/russia-having-success-in-hybrid-waragainst-
germany/> (accessed February 21, 2016).
144 YEVHEN FEDCHENKO
of interests."
When Putin speaks of media warfare, he is talking about a war that is being
conducted against Russia by unnamed countries Although the Russian President
does not specifically mention who is conducting this war, it is apparent
Moscow in a defensive and necessitates retaliation:
In a speech to Russia s Academy ofM ilitary Sciences in January 2013,
asymmetric
"superficial." nonmilitary
Ukraine Disinformation
cavalry
Kremlin s Russia s it it s "war
Russia perfectly grasps the importance of propaganda and heavily invests
a brand in Russian), TASS, Russia Insider, Russia Beyond the Headlines
(RBTH) and a myriad of other sources of propaganda, fake news stories and
falsifications. Some of these "media"organizations are well-known propaganda
War in Kyiv
• kremlin.ru/2016)
reuters.com/waragainst-
2016)
Sputnik dropped “Russian” quite interesting explainable. They a part of global engagement strategy that combines Russian and international
media platforms to communicate and articulate Russian foreign policy. The
most developed o f these is Russia Today (RT), which is a Russian satellite
television broadcasting system similar to Qatar’s Al Jazeera or France 24.8
Margarita Simonyan, altogether branding:
some extent, if you are not equipped for broadcasting abroad - then it’s
like you do not have the army. When there is no war you do not need it. But
when the war has already started you cannot create it in a week.9
“offer guidance
multipolar respecting every country’s interests,
history traditions”. reality, precisely opposite, “has systematically principles “the information”10.
‘media’ deny right history through twisting policy making process institutions:
Like RT, the German branch o f Sputnik - named after the satellite that established
the Soviet claim to supremacy in space almost 60 years ago - is part
o f the Rossiya Segodnya media empire. Its mandate is to broadcast Moscow’s
8 S. 2011. S. international broadcasting: An untapped resource for ethnic and
domestic news organization. In Public Policy and Funding the News. Retrieved from < http://
fundingthenews.usc.edu/related_research/4_Carnegie_USInternationalBroadcasting.pdf>
(accessed February 05, 2016).
9 <https://daily.afisha.ru/archive/gorod/archive/ministry-of-truth-simonyan/> (accessed February
24, 2016).
10 <http://www. interpretermag.com/the-menace-of-unreality-how-the-kremlin-weaponizesinformation-
culture-and-money/> (accessed February 24, 2016).
KREMLIN PROPAGANDA 145
Both RT and International have the word "Russian" from
their brand names, which is but do not
work for the Russian market, their coverage is not primarily Russia, and they
do not promote the nation branding of Russia as many have asserted. For
example, Shawn Powers calls RT
policy of Qatar s 24.
The editor in chief of RT, offers an different
rationale for RT that is not at all connected to nation branding
To it s
it. it week."
The website of Sputnik International states that their mission is "offer guidance
in a world, while country s national interests,
culture, and traditions". The however, is the
as the Kremlin has learnt to use the of
liberal democracies against them in what we call here "the weaponization of
information""
In other words, the Kremlin is using these so called media organizations
to other societies their to their own culture, and traditions,
and does so the of facts, the dissemination of fake news
stories, and falsifications in order to undermine the or
compromise certain core values and institutions
of established
of Moscow s
Powers, 2011 U.S. use.edu/USInternationaBroadcasting.pdf>
2016)
9 afisha.ru/truth-simonyan/ February
2016)
Io www.interpretermag.com/unreality-weaponizesinformation-
2016)
worldview at Putin’s behest. Dmitry Kiselyov, the Kremlin’s chief propagandist,
serves as Sputnik’s general director. The only Russian journalist on the
EU sanctions list against Moscow, he sees himself as being involved in an
“information war. ” In fact, he says, this is the “primary form of warfare”
today. 11
Kremlin’s everything. governance, determination governance.
ideology propaganda,
ideology. everything. “small propagandas”, audience.
messages, effectively augments paraphrase argue provide
many clashing messages:
Unlike in the Cold when Soviets largely supported leftist groups, a fluid
approach to ideology now allows the Kremlin to simultaneously back far-left
and far-right movements, greens, anti-globalists and financial elites. The aim
is to exacerbate divides and create an echo chamber of Kremlin 12
Although propaganda peaked during something propaganda, really disappeared, collapse contemporary
propaganda system compared during objectives government they propaganda handbook. “puppeteers Washington”, 11 <http://www. interpretermag.com/the-menace-of-unreality-how-the-kremlin-weaponizesinformation-
culture-and-money/> (accessed February 24, 2016).
12 Ibid.
146 YEVHEN FEDCHENKO
Putin s iselyov, Kremlin s propagandist,
Sputnik s Moscow, information war." "primary warfare"
The core of the Kremlin's propaganda, both inside and outside Russia, is a
post-modernist denial of everything It is aimed at the total destruction of
the entire liberal concept of western society including democracy itself as
well as its constituent elements such as free media, fair elections, effective
govemance, and the right of people to self-determination and self-governance.
There is no new contained in current Russian because Russia does not have a single, individual ideology Instead, it
borrows a little from everything In this way, the system produces a large
number of "small propagandas', each of them targeting a specific audience
The more the better as this confusion. To
Peter Pomerantsev, one could that the aim is not to a sole, unified narrative, but to rather create narratives in order
to confuse different audiences with different messages
War, support.
Russian the war in Ukraine, it was not
that came out of a vacuum. It was in fact a continuation of Soviet
which never even after the of the
Soviet Union. In reality the active measures that are now being used were
simply reviewed, rebuilt, transformed, and then applied towards contemporary
situations with increased efficiency.
The current Russian is often to that of the
Soviets the Cold War. This is because the of the current
are the same as were then, thus modern borrows
and uses similar techniques from the KGB handbook This makes many terms
easily recognizable. Phrases such as the "puppeteers from Washington", and
www.interpretermag.com/unreality-weaponizesinformation-
2016)
Ibid
“foreign agents” are it West. State’s, Affair’s, “Special measures” from 1981, “Soviet promotion
abandoned”13.
meropriyatiya) “affect counterintelligence.
included:
written or spoken disinformation;
• efforts to control media in foreign countries;
• use o f Communist parties and front organizations;
• clandestine radio broadcasting;
• blackmail, personal and economic;
• political influence operations.14
-
taskforce, 1981 Information Agency (USIA). In their annual reports produced from 1981
provided measures
states. 13 <http://insidethecoldwar.org/sites/default/files/documents/Soviet%20Active%20Measures%
20Forgery,%20Disinformation,%20Political%20Operations%20October%201981.pdf>
(accessed January 28, 2016).
14 Ibid.
KREMLIN PROPAGANDA 147
foreign agents"are familiar, yet current propaganda also differs greatly in
terms of quantity, quality and the mediums that it uses.
Ideology was a central element of the propaganda of the Soviet Union,
which clashed with the values-based counter-propaganda coming from the
West The central role played by the communist ideology ultimately rendered
Soviet propaganda weak and ineffective, and ultimately such ideological
narratives only appealed to left-leaning political groups or countries.
The US Department of State's, Bureau of Public Affair's, "Special Report
on Soviet active measures"from I981, summarizes some of propaganda
setbacks of the Soviets stating that: "Soviet use of Marxist-Leninist ideology
to appeal to foreign groups often turns out to be an obstacle to the promotion
of Soviet goals in some areas; it is now being deemphasized though not
completely abandoned"
In order to offset these setbacks, the Soviets adopted the concept of active
measures (aktivnyye that refers to operations intended to
affect other nations policies, as distinct from espionage and counterintelligence.
Some Soviet active measures included
• of political operations.''
These methods are summarized by the Active Measures Working Group
the interagency task force, which was formed in I98] in order to counter the
effects of active measures. The organization was initially under the United
States Department of State and then later became part of the United States
until 1989, the AMWG a detailed account of the use of active measures
by Soviet Union.
A very important insight into active measures practices of the Soviet
Union can also be gleaned from the books written by defectors from the
Soviet Union or its satellite socialist states These individuals often had
org/20Measures%
20Disinformation,620Political%200ct0ber6201981L.pdf
+ Ibid
worked inside the disinformation system and had a firsthand glance of its
operations. Ladislav Bittman, Mihai Pacepa, Anatoliy Golitsyn, Stanislav
intimately acquainted practices gave striking Ladislav Bittman was a former StB Czechoslovak intelligence officer,
1968. summarizes were in used during the Soviet era:
Forgeries/.../ are classified into two major categories. The first category
includes misleading information (disinformation) that contributes to poor
policy decisions among government leaders. This type of fake usually does not
require or receive widespread attention of the media. The second type, propagandists
forgery, seeks to mold public opinion in a target country. Propagandistic
forgeries take a number o f different forms: leaflets in the name o f nonexistent
organizations, counterfeit pamphlets circulated to key individuals and
groups, facsimiles and subtle alterations o f official publications, reproduction
and shading o f entire issues o f newspapers and magazines, fake personal
letters, and phony bank statements. Even duplicate best-sellers have been
offered to publishing houses.1
Moscow’s approach application many manipulations, general foreign countries,
complete or partial forgery of media stories, the establishment of bogus
media organizations abroad, and the exploitation of journalists who were
recruited to serve as collaborators in order to influence the policies of their
home nation.
description exactly currently being by deception
and disinformation practices. Fake news and forgeries are essential components
of active measures and are of especial interest. They will discussed
in greater detail later on.
key hierarchy
necessary produce forgeries. system look at how this system was managed in the past. According to the Active
Measure Working group report,
15
15 L. 1985. The KGB and Soviet Disinformation: An Insider’s View. Pergamon
Press, p. 96. [Bittman 1985]
148 YEVHEN FEDCHENKO
Levchenko, and Vasili Mitrokhin were all with the
active measures of the Soviet Union and evidence.
who defected to the West in 1968 He summanzcs some of the methods that
era
Forgeries/.. / disinformation) receive propagandistic
Propagandistic
of forms. in of nonexistent
of of of houses."
Moscow s included the of instruments related to
media such as control of the media in countries,
nation
The above is illustrative because it enumerates the
same set of tools that is used the Kremlin in its components
be Another factor is the existence of a chain of command and the hierarchy
that is to fake news and forgeries In order to find
the mastermind behind this elaborate it is worthwhile to take a closer
Masure ' Bittman, KG Insider's
Depending on its sensitivity and importance, approval for a forgery may
be obtained from the leadership, the International Department o f the
Central Committee o f the Communist Party, or the Secretariat o f the Central
Committee itself. KGB specialists prepare the forgery under the supervision
o f the active measures section o f the First Chief Directorate 1
“Soviet War’ 1988-
1991” International The IDD was divided into 6 sectors organized around geographical and functional
lines. Each sector employed about half a dozen professionals, who
determined the themes, arguments, and information used in Soviet foreign
propaganda and the treatment o f international affairs in the Soviet press.
After these were decided upon, the IID and its successors would hold regular
meetings to issue their guidance on international information issues to
Novosti, TASS, Radio Moscow, Radio Peace and Progress, and other leading
Soviet media.11
management
it occupation,
Ukraine.
responsibilities
targeted.
16 Soviet Active Measures: Focus on Forgeries. Foreign Affairs Note, United States Department
of State Washington, D.C. April 1983, <http://insidethecoldwar.org/sites/default/files/
documents/Department%20of%20State%20Note%20Soviet%20Active%20Measures%20
Focus%20on%20Forgeries%20April%201983.pdf> (accessed January 30, 2016). [Soviet
Active Measures 1983]
11 <http://intelht.muskingum.edu/russia_folder/ pcw_era/sect_03.htm> (accessed February 01,
2016).
KREMLIN PROPAGANDA 149
KGB of of of of of KGBs Directorate."
According to the Soviet Active Measures in The Post-Cold War' Era 19881991
Report, it was the Intemational Information Department (IDD) of the
CPSU Central Committee that was tasked with the manufacture of fake news
and forgeries. An examination of its internal organizational chart could offer
some guidance as to how the system might be organized today:
functional
of press
regular
Moscow, media,
When past methods are compared to current operations, then it must be
concluded that there does in fact exist an effective hierarchical system of
management that coordinates the production of fake news and disseminates
it, across multiple platforms, throughout the world. Without such a management
system, it would be impossible to achieve the high level of cohesion
between active measures, policy making, the military and the diplomatic
corps, and to coordinate and obfuscate events such as the Crimean occupation,
and the war in the Eastern Ukraine
If the Soviet model of command is used as a template then the KGB
would be replaced with the FSB and the SVR, who divide their responsibilities
according to their spheres of competence and whether the Russian
domestic audience or international audience respectively are being targeted
And the GRU, which is in charge of foreign military intelligence, must also
Soviet Department
C org/2001%200n%pdf> 2016) -intellit.muskingum.pew_era htm (0I,
2016)
be deeply involved in the planning and conducting of active measures, especially
Department Department
Party replaced by meaning currently Ponomarev, deputy:
That role is played by Putin’s deputy of staff, Alexei who calls
in chief editors to coordinate the Kremlin line. Gromov distributes the to the mainstream media in Moscow, /.../ and his orders are as strict as any
in the army.18
Further pro proof of the Kremlin orchestrating this system of management
messages by Anonymous high-ranking working Presidential
Administration, the Government and the ruling United Russia Party are
involved in the planning and conducting of media-related active measures.
Vyacheslav Prokopenko, Arkadiy
Shlegel others19 20.
leadership, always their active measures, the current Russian leadership also justifies its actions
superiority:
The KGB’s active-measures doctrine improbably insisted that its influence
operations were ‘radically different in essence from the disinformation to
which Western agencies resort in order to deceive public opinion’: the KGB
disinformation operations are progressive; they are designed to mislead not
the working people but their enemies - the ruling circles o f capitalism - in
order to induce them to act in a certain way, or abstain from actions contrary
to the interests o f the USSR; they promote peace and social progress; they
serve international détente; they are humane, creating the conditions for the
noble struggle for humanity’s bright future.10
18 <http://europe.newsweek.com/pushing-kremlin-line-251581?rm=eu> (accessed February
20, 2016).
19 <http://tsn. ua/special-projects/liar/> (accessed February 20, 2016).
20 Andrew, C. 2006. The World Was Going Our Way: The KGB and the Battle for the the
Third World - Newly Revealed Secrets from the Mitrokhin Archive. Basic Books, p. 188.
[Andrew 2006]
150 YEVHEN FEDCHENKO
especially
as the Russian Ministry of Defense conducts its military operations.
The International and the International Information of the Central Committee of the Communist would be the
Kremlin itself that the Kremlin must direct and coordinate
active measures. Newsweek quotes Ilya an opposition Duma
Putin s chief Gromov, orders
in Moscow, /. / army."
comes from the text hacked International. The texts
show that several Kremlin officials in the Presidential
These individuals include Volodin, Timur Dvorkovich, Robert as well as others!
Just as the Soviet insisted on the defensive character of
in the same manner and invokes its moral KGB s 'opinion': of way, of progress, d~tente; humanity s future."
Is newsweek.com/line.251587m=2016)
? 2016)
C p. 188
151
superiority public
contemporary propaganda, Dmitry with typical brio, argued that East and West appeared to be trading places. In
Russia we now take full advantage offreedom o f speech, whereas in the West
political correctness, or political expediency in the name o f security, have
become arguments against freedom o f speech.11
speech, invoking high ground information
offering points ‘media’ concepts propaganda.
legacy past. Putin’s speech opening Spanish 1 broadcasting Argentina July stated:
Your nation is now getting a reputable and, most importantly, reliable source
o f information developments worldwide.
The right to information is one o f the most important and inalienable human
rights.21 22 23
by disguised conducting very
being caught lying already disprove:
Although the fabricators are aware that once a document appears in print
the supposed author will promptly deny its authenticity, the Soviets calculate
that a denial will never entirely offset the damage from news stories based
on the forgery11.
stories are by intended
publisher composite completely
complete fiction.
‘news’ alternative
investigative
journalist “Active 21 <http://europe.newsweek.com/pushing-kremlin-line-251581?rm=eu> (accessed February
20, 2016).
22 <http://en.kremlin.ru/events/president/news/46162> (accessed January 15, 2016).
23 Soviet Active Measures 1983.
KREMLIN PROPAGANDA
The same idea of moral can be found in views of one of the faces of Russian Kiselev, who
[In
of freedom of of of speech
The ideas of freedom of the moral in the information
battle with the West, and access to alternative of view
via the Russian media have become cornerstone of Kremlin propaganda.
This was inherited from the Soviet In Putin's for
the of the RT 24/7 in in 2014,
he stated
our of on the events and in Russia and worldwide
of rights.
The statements are however belied the dissemination of more fake news
as real news. The individuals these activities care little about as the audiences will have consumed
the material, thereby making it very difficult to disprove
forgery
To make sure that fake news stones arc taken at face value bv the mtcndcd
audiences, the will create a story that is not false but rather combines some of factual information with fiction
This mixture of actual facts and mistruths, together with some irrelevant
details to make 'news looking more realistic creates stories from an alterative
reality that aligns with the overarching goals of the Kremlin. The investigative
Andrei Soldatov describes it as follows: "Active measures
1 europe.newsweek.com/line.251587m=2016)
kremlin.ru/events/president/news/46762> 2016)
2 1983
percent targeted disinformation.24”
important comparative perspective respective scales. forgeries by inter-agency Working
Group totaled only 4 cases in 1980, 1 in 1981, 9 in 1982, and 12 in 198325.
Although during the late Soviet period the number of forgeries increased
from year to year, the output never came close to the levels of contemporary
measures. just years, by StopFake.org of the reason for this disparity can attributed to expense. According to
the Institute for National Strategic Studies (INSS) at the National Defense
University (NDU),
conducting more intense disinformation campaign was expensive for the
Soviet Union, with estimated spending o f about $3 to 4 billion per year in
hard currency at the beginning o f the 1980s. By the end o f the decade, some
insiders believed that the Soviet Union was spending three to five times that
much. 26
In addition to extensive outlay, believability and deniability were also essential
components of Soviet propaganda. Moreover in order to ensure that fake
information appeared more credible and trustworthy, and to avoid direct
responsibility, or if necessary, to go so far as to use it in a false flag operation
Soviet propaganda would actively employ Communist proxy newspapers to
deliver their propaganda messages. Ideally - non-Communist media would
also propagate the message. Very often information would be attributed
to newspapers such as The Morning Star (British socialist newspaper),
L’Humanite (daily newspaper of French Communist party), and Rude Pravo
(the newspaper of the Communist party of Czechoslovakia). After being
printed in one or several of these papers, the Soviet propaganda outlets could
then ‘quote’.
Ladislav Bittman explains why it was important to do it this way:
to maintain an aura o f authenticity, disinformation must first appear through
a mass medium not openly identifiable as pro-Communist. A journalist-agent
24 Soldatov, A. 2011. The New nobility of the KGB. Public Affairs, p. 184. [Soldatov 2011]
25 <http://ndupress.ndu.edu/Portals/68/Documents/stratperspective/inss/Strategic-Perspectives-
11.pdf> (accessed February 10, 2016).
26 Ibid.
152 YEVHEN FEDCHENKO
were based on 95 pcrcent objective information to which something was
added to turn the data into information or disinformation."
Also for a between the Russian and
Soviet active measures is an evaluation of each their scales The
Soviet detected the Active Measures 7 1983Although
Russian active measures In 2 the number of fake news stories
that were debunked org amount to more than 500 cases. Part
be of S3 of By of much."
essential
L Humanite bemg
quote
of ' 2011 s ndu.edu/strat perspective/Perspectives-
IL.pdf> I0, 2016)
6 /bid
working for a reputable publication is usually supplied with disinformation
and told how to write the story. In most cases, the initial appearance of
sensational materials is enough to start a chain reaction o f further publicity
as other media outlets become interested in the subject. Local communist
newspapers are left out o f the game to act according to their ideological bias
and editorial decision. Even the reaction ofPravda, /.../ does not provide the
key for understanding the real purpose o f the KGB Strategy.27
modern well. it: “‘Death Squads’ Exterminate
Eastern Ukraine” “the Eastern Ukraine” by fighting alongside the Ukrainian army in the eastern part of the country28.
22nd, Russia’s “harassment.” (RFI), coverage29.
Russia’s Ukraina.ru, International
Agency, (formerly published story
by relatively Smith.
21 Bittman 1985, p. 89.
28 <http://www.stopfake.org/en/russian-media-falsely-cite-new-york-times/> (accessed
25, 2016).
29 <http://www.stopfake.org/en/zvezda-falsely-cites-radio-france-internationale-for-sexualharassment-
report/> (accessed February 25, 2016)
KREMLIN PROPAGANDA 153
of in of of Pravda, of Strategy
Manipulation of foreign media is a widespread technique of modem active
measures as well If Russian propaganda is unable to place their doctored
stories in Western mainstream media, then they will simply invent fake
citations.
In 2015 several Russian web-based media outlets (including the fake
Kharkov News Agency, which is actually based in Russia) distorted an actual
New York Times article by titling it; "Nazi Terrorist Death Squads' Exterminate
Ethnic Russians in the Eastem Ukraine" The article falsely cited a
nonexistent article from the New York Times about "the extermination of
ethnic Russians in the Easter Ukraine"bv Ukrainian volunteer battalions.
The actual New York Times article was about three Chechen battalions
castem country
On October 22, 2015 the Russia's Ministry of Defense television network
Zvezda posted a false report on its website claiming that the "Ukrainian
Prime Minister Arseniy Yatsenyuk accuses the leader of the Batkivshchyna
political party, Yulia Tymoshenko, of sexual harassment." It was claimed that
the original source for the story was an interview given by Yatsenyuk to a
journalist of the Russian service of Radio France Internationale Elena
Servettaz. The RFI Russian service, however, immediately denied that it had
made any such report and condemned Zvezda for both making up the sexual
harassment story and involving RFI in its distorted coverage
During the initial stages of Russia's intervention in Syria, the Russian
website Ukrainaru, which belongs to the MIA Rossiaya Segodnya International
Information RIA Novosti) a written a unknown American author named Jack Smith
The story argued that Russia was an important player in Syria, and that
p. 89
8 stopfake.org/media-falsely-February ° www.stopfake.intemationale-sexualharassment-
154 Journal30.
“revolution” by journalist’s involvement.
Kremlin’s narrative
“Ukraine”, journalists knowledge):
thing documentary (Russian) NTV channel
spread by Sputnik it’s by (French)
CANAL+ - that’s quite another pair o f shoes31.
‘use’ the necessary
countries. countries.
“War’ 1988-1991”, “disinformation”. ‘item’ ‘creating’ part biological development. 30 <http://www.stopfake.org/en/fake-using-foreign-policy-s-banner-to-tell-a-pro-russianstory/>
(accessed February 26, 2016).
31 <http://m.day. kiev.ua/ru/article/media/specoperaciya-la-francaise> (accessed February 5,
2016).
YEVHEN FEDCHENKO
Washington was obliged to treat it as an equal. The site presented the story as
if it had been published in the prestigious Foreign Policy Magazine, whereas
in fact, the cited article had only appeared on an obscure private web site
called Foreign Policy Journal
The documentary "Ukraine: Masks of revolution"by the French journalist
Paul Moreira can be considered another example of the Kremlin security
apparatus manipulating foreign media, however, in this particular instance it
occurred without the journalist s prior knowledge or deliberate involvement
The film was commissioned and shown recently by the French commercial
TV channel CANAL+, and included many factual mistakes and irregularities
which unintentionally were in complete alignment with the Kremlin's narrative
of events in Ukraine. According to Galya Ackerman, Executive Director
of the Paris-based "European Forum-Ukraine", this is a good example of
active measures, conducted in the classical Soviet tradition, wherein Western
joumalists are exploited (without their knowledge)
It is one when like this is shown on Russian) NT channel
or by International, but when it s broadcasted CANAL that s of shoes
The Soviet legacy of exploiting journalists and their narratives was often
taken a step further. In order to use'the foreign media to plant the desired
fake stories, the USSR found that they would need to create and sustain their
own alternative media. The Soviet government would use any means necessary
to control, buy or gain access to journalists in foreign countries Often
this was done by simply supporting media establishments in other countries
For example, according to the report "Soviet Active Measures in The
Post-Cold War' Era 1988 1991, the Soviet Union helped to launch the
Indian newspaper the Patriot "with KGB funds in order to spread Soviet
propaganda and disinformation" This newspaper was later used to break one
of the most infamous 'news item in the history of Soviet active measures,
by alleging that that the US government was involved in creating' AIDS
as of its warfare research and Later the same
o stopfake.org/russianstory>
2016)
ua/2016)
“northern Iraq32”.
1985. “Strategic Warfare”. activities,
“identified ‘Abraham’
Opperskalski33”. publishing regular RT.”34
era. media.
summarized
Post. children’s right
“Camps”. Moreover, website, writers35.
32 <http://intellit.muskingum.edu/russia_folder/pcw_era/sect_09a.htm> (accessed February
24, 2016).
33 Waller, J. M. (ed.) 2009. Strategic Influence: Public Diplomacy, Counterpropaganda, and
Political Warfare. Institute of World Politics Press, p. H2.
34 <https://www.rt.com/op-edge/188416-ukraine-special-status-cold-war/> (accessed February
H , 2016).
35 <http://www.stopfake.org/en/russian-and-separatist-media-continue-citing-anonymousblogs-
as-official-media/> (accessed February 24, 2016).
KREMLIN PROPAGANDA 155
newspaper "falsely claimed that the U.S. was encouraging Turkey to seize
norther Iraq
Another example of Soviet influence of a foreign media outlet is the
German Magazine Geheim,which was founded by Michael Opperskalski
in 1985, Although there is no evidence of a direct connection between
Opperskalski and the Soviets, Herbert Romerstein ( a member of the Active
Measures Working Group) advances some troubling findings in his book
Strategic Influence: Public Diplomacy, Counterpropaganda, and Political
Warfare" He quotes Hubertus Knabe, a leading German expert on Stasi activities,
who identified the publisher of Geheim with the code name Abraham
as Michael Opperskalski Opperskalsi closed his magazine in 1992 but then
resumed in 2002. He is now a contributor to RT."H
Another difference between the Soviet and Russian active measures is
that the Kremlin now takes full advantage of the Internet and social media
in order to disseminate their message. These platforms were not available in
the Soviet era Their advent now allows Russia to create and use anonymous
sources to spread fake news stories that will later be picked up by mainstream
media
For example, on August 30, 2015 RT published a translated, anonymous
post from the blog, Blauer Bote (Blue Courier), in which the writer summarized
an article from the Kyiv Post The original article was about an Azov
Battalion children's training camp. Yet while the Kyiv Post article is neutral,
the anonymous writer of the German blog deliberately exaggerated and
subjectively radicalized the report in his recounting. The writer also included
a collection of news stories on the controversial topic of Ukrainian far night
nationalists. The exaggerated piece was then picked up by Russia Today. It
was presented under the headline "Blauer Bote: Kyiv Newspaper Boasted
of Hitler Youth Camps" - Moreover, RT erroneously described some of the
material therein as opinion pieces originating from reputable German media
outlets. The wcbsite, however, offers neither contact information nor the
names of the wniters"
n muskingum.O9a.htm> 2016)
(ed,) 172
4 rt.com/February
27, 2016)
www.stopfake.org/anonymousblogs-
2016)
The current disinformation campaign is simply a continuation of
policies began during throughout era. away. During Reagan-Gorbachev and Gorbachev responded by saying “no more lies, no more disinformation36”.
According Report Congress by Agency “Soviet Glasnost” published 1988,
Since the December 1987 summit, state-controlled Soviet media have falsely
suggested the United States manufactured the virus
in a U.S. military facility at Fort Detrick, Maryland [Radio Moscow, Feb.
13, 1988]; the United States is manufacturing an ethnic weapon that kills
only non-whites Jan. 9, 1988; January 1988 Novosti Military Bulletin;
Radio Moscow, Feb. 5, 19881; the FBI assassinated Rev. Martin Luther King
[Literaturnaya Gazeta Jan. 20, 1988]; the head o f the U.S. delegation to the
U.N. Human Rights Commission conference in Geneva, Armando Valladares,
was jailed in Cuba for bombing stores [Izvestia, Feb. 6, 1988]; 2 the CIA
assassinated Swedish Prime Minister Olof Palme, Indian Prime minister
Indira Gandhi, and attempted to assassinate Pope John Paul II [Moscow
Television, Feb. 9, 1988].
37
Working group monitoring 1989. reports summarizing “Operations” predicted that:
there is every reason to believe that the Soviet leadership will continue to make
heavy investments o f money and manpower in meddlesome and disruptive
operations around the world. While Soviet active measures can be exposed, as
they have often been in the past, the Soviets are becoming more sophisticated,
especially in forgeries and political influence operations. Unless the targets of
Soviet active measures take effective action to counter them, these activities
will continue to trouble both industrialized and developing countries.
38
36 Waller, J. M. (ed.) 2007. The Public Diplomacy Reader. Lulu.com, p. 355. [Waller 2007]
37 <http://insidethecoldwar.org/sites/default/files/documents/Soviet%20Active%20Measures%20
in%20the%20Era%20of%20Glasnot%20March%201988.pdf> (accessed February 24, 2016).
38 <http://insidethecoldwar.org/sites/default/files/documents/Soviet%20Active%20Measures%
20Forgery,%20Disinformation,%20Political%20Operations%20October%201981.pdf>
(accessed January 28, 2016).
156 YEVHEN FEDCHENKO
the that the Soviet era and endured the
Perestroika and Glasnost era In short, Soviet active measures never actually
went the summit in 1986, USIA Director
Charles Wick confronted Gorbachev personally about Soviet disinformation
no disinformation
to A to the United States Information
"Soviet Active Measures in the Era of Glasnost"published in March
claimed or that: AIDS US Maryland Moscow, Feb
[TASS, Martin of US. UN. Feh. 1988] Minister Moscow
Feb, The Active Measures tasked with Soviet active
measures ceased their activities in I989. After this date there were no further
annual the Soviet activities in this field.
But another Report to Congress titled, "Soviet Active Measures Forgery,
Disinformation, Political Operations"predicted that
of 2007 com, -org/ sites default files documents/Soviet620Active620Measures620
in 620the620Era62001%20Glasnot620March%pdf> 2016)
org/20Measures%
20Disinformation,620Political%20Operations%200ct0ber6201981L.pdf
Gorbachev’s writes:
there was, however, a hidden dimension to perestroika, which passed largely
unnoticed by the Western media and by Western political leaders: the restructuring
o f the “active measures” apparatus. In contrast to the “restructuring”
of the economy, the perestroika of the overt and covert propaganda apparatus
o f the Soviet Union was considerably strengthened and made more sophisticated
under Gorbachev. 39 40
Russia’s 2000s:
When the First Chief Directorate was renamed the Foreign Intelligence
Service, its Section A was renamed the Section o f Assistance Operations. In
the early 1990s, the CIA had asked the foreign intelligence service to stop
carrying out ‘active measures ’ that undermined the national security o f the
United States. As a result, the section was given a new name, but its methods,
structure, and employees were retained4
International
Department of the Central Committee of the Communist Party of
reform. dissemination
Under capitalism information is the main commodity and you need to sell
this commodity. I f the government does this - it’s doomed to fail. need to
create a state-public company subordinate to the Communist party Central
Committee that will combine the Novosti Press agency APN, TASS, the State
TV and the Radio Committee, the State Publishing Committee, the State
39 Crozier, B. 1996. The Other Side of Perestroika. The Hidden Dimension of the Gorbachev
Era. - Demokratizatsiya: The Journal of Post-Soviet Democratization, Vol. 4, No. 1 / Winter
1996. <https://www2.gwu.edu/~ieresgwu/assets/docs/demokratizatsiya%20archive/04-1_Crozier.
PDF> (accessed February 01, 2016).
40 Soldatov 2011, p. 184.
KREMLIN PROPAGANDA 157
The Perestroika historian Brian Crozier also identified a troubling feature of
this interim period. During Gorbachev's Perestroika there were disturbing
aspects of the Soviet government that the West simply overlooked in its
excitement. He writes
by restructuring
of "measures restructuring
of sophisticated
Gorbachev•
Andrei Soldatov, an expert on Russian security and Russia's intelligence
apparatus, also confirms that the Soviet Union continued their active measure
operations into the 2000s
When of Assistance 'measures'that of retained
Instead of being dismantled, the Soviet propaganda apparatus was carefully
revitalized in order to make it more modern and more effective. Valentin
Falin, the head of the Novosti Press Agency, and later the head of the International
the Soviet Union, was one of the architects of this reform It was he who
envisioned the innovative methods for propaganda manufacture and dissemination
which would later become actualized in the creation of RT and Sputnik
International. Falin writes:
If it s We Demokratizatsiya -gwu.edu--ieresgwu/assets.docs demokratizatsiya%Crozier.
PDF> 0I, 2016)
Soldatov p.
Cinema Comittee, and the Union o f Journalists. The Central Committee
should start its own TV channel, TV Pravda and also a global video news
agency.41
In the case o f Russia’s ongoing campaign in Ukraine, for example, hyperintense
Russian propaganda has cultivated unrest inside the country by
sowing enmity among segments o f Ukrainian society and confusing the West
with waves o f disinformation, while Russian proxy forces and covert troops
launch just enough military offensives to ensure that the Ukrainian government
looks weak. The point is not to occupy territory - Russia could easily
annex rebel-held eastern Ukraine - but to destabilize Ukraine psychologically
and advance a narrative of the country as a “failed state”, thus destroying the
will and support inside Ukraine and internationally for reforms that would
make Kiev more independent from Moscow. 42
4Ds:
Russia’s narrative can be viewed as an offensive weapon: Its effect is to
discredit the West and shift the blame for the Ukraine crisis onto Western
shoulders. When it comes to defending Russia, different tactics are used. They
can be summed up in four words: dismiss, distort, distract, dismay.43
Mohyla instructive.
41 Фалин, В. Конфликты в Кремле. Сумерки богов по-русски. <http://mreadz.index. php?id=274462> (accessed February 2, 2016), c. 48.
42 <http://www.theatlantic.com/international/archive/2015/12/war-2015-china-russiaisis/
422085/> (accessed February 9, 2016).
43 <http://www.cepolicy.org/publications/anatomy-info-war-how-russias-propagandamachine-
works-and-how-counter-it> (accessed February 05, 2016).
158 YEVHEN FEDCHENKO
of agency."
Russian active measures and fake news in Ukraine
Peter Pomeratsev describes the influence of Russian propaganda on Ukraine
as follows:
of Russia s in hyperintense
by
ofU krainian of disinformation, government
yweak, "state',thus Moscow•
Ben Nimo describes anatomy of Russian info-war against Ukraine with the
concept of 4Ds
Russia s dismay
To better understand the content of the media-related active measures, an
examination of materials, researched by the fact-checking project Stopfake.
org, which was launched in March 2014 by faculty, students and alumni of
the Mohvla School of Journalism in Kyiv, Ukraine is instructive
Since its inception the Stopfake team has been augmented by journalists,
editors, programmers, translators, and others who are concerned about the
proliferation of propaganda. The main purpose of this Project is to check
" pa., B KOb.Kr B Kpee. Cy MepKH 6oro IO-pyCCKH. mreadz com/new/
c. 48
www.theatlantic. com/war-russiaisis/
4 cepolicy.org/propagandamachine-
counter-
organization. government. information.
years Governmentcontrolled
- control).
e. it them.
1. d ’état Western-2. ‘fascist state’
3. ‘failed state’
4. army
6. Volunteer battalions
Internally 9. ‘claims’ 11. by private
12. 13. International 14. 15. 16. MH17
17. AIDS/ZIKA/ other disease stories
KREMLIN PROPAGANDA 159
facts, verify information, and refute verifiable disinformation about the events
in Ukraine that are being covered by the media. The StopFake team does not
represents, nor supported by any particular political party, or commercial
organization This also includes the Ukrainian government The project is
solely focused on maintaining journalistic standards of distributing accurate
In its 2 ycars of its existence Stopfake.org has analyzed, fact-checked and
debunked more than 500 stories from Russian media sources (this includes
TV, print and internet media, as well as social media, both Governmentcontrolled
and private which is essentially under quasi-governmental
control)
The debunked stories can be divided into different types and categories
depending on the themes, the means (text, photo, video, meme) and the target
audience, i.c. whether it for the Russian domestic audience, the Ukrainian
audience, the US/European, or the rest of the world/global audience. We also
differentiate stories based on the platforms used to spread them
By analyzing 500 items of debunked disinformation (fake news stories)
we have been able to identify 18 major fake narratives themes that are
commonly used by Russian propaganda. They are as follows:
I. Coup d'~tat and Wester-backed junta
2 Ukraine as a fascist state
3 Ukraine as a failed state
4 Russia is not a part of the occupation/war
5. The Ukrainian armv
7. Intemally displaced persons (IDPs) and refugees to Russia
8. Territorial disintegration of Ukraine
9 ·Territorial claims from neighboring countries
10. Fake legitimization of Crimea annexation and occupation of Donbass by
foreign governments, international organizations or foreign media
I. War in Ukraine is actually conducted the US, NATO or contractors
12 Decline of Western support for Ukraine
3 Intemational organizations manipulated
14 Ukraine and the EU
I5. Disintegration of the EU, decay of the US and West in general
MHl7
I7. stones
18. Ukraine/Turkey/Syria/ISIS
In order to gain a better perspective of the 18 main disinformation themes, it
is also worthwhile to do a more detailed analysis of those current propaganda
patterns. way of depicting post-Maidan Ukraine was to describe events in terms of
a coup d ’état, that is to say a Western-backed group (mostly US-backed
junta) seizing power and implementing fascism as the defining ideology of
emerging regime in Ukraine.
d’état junta
The ouster of the president (Yanukovych) and his government was the most
propaganda and manipulation prone events of the entire Maidan movement44.
The Russian media characterized as a Coup d ’état or an illegal overthrow
of a legitimate president. The regime leaders who were removed
and then fled the country, were harbored in Russia where they were used
for further propaganda purposes. While residing there, they had numerous
appearances in the Russian media and were subsequently proclaimed as the
“Ukrainian government exile”.
According to evidence gained from the text messages hacked by Anonymous
International, the main disinformation theme characterizing the maiden
movement as a US-backed junta of radicals and banderites, could actually traced back to the Kremlin itself and Alexey Gromov in particular, who is the
Deputy Chief of Staff of the Presidential Administration of Russia. The characterization
was propagated and supplied to various media outlets by Timur
Prokopenko, the head of the Kremlin internal affairs department45.
This disinformation theme was picked up by all Russian mainstream
media and social media and became a frame of reference for the depiction of
years.
One author who was instrumental in creating this perception is Valentin
Zorin. Zorin was one of the most influential propagandists from the
Soviet era and is now in his 90’s. He still occasionally works for the RIA
and still publishes inflammatory articles. In one article that appeared in a
government-owned outlet he decried the US government’s complicity in the
Ukrainian ‘coup’ stating:
44 <https://www.rt.com/news/159664-italy-protest-nazism-ukraine/> (accessed February 27,
2016).
45 <http://tsn. ua/special-projects/liar/> (accessed February 20, 2016).
160 YEVHEN FEDCHENKO
it
messages that echo the earlier Soviet propaganda patterns The most common
d'~tat, The Coup d'~tat and the Western-backed movement"
it '~tat Ancient Ukrainian in exile"
Anonymous
be
characterization
intemal department'
Ukraine-related events over the next two 90'articles government's 'coup'stating:
com/naz ism-ukraineb> 2016)
" 2016)
From the very beginning, Washington DC was in charge o f the coup d ’état in
Kiev and relied on extreme nationalistic forces, and banderites who had made
oaths to Hitler and committed atrocities against Russians, Jews, and Poles46 47.
2014-mobilize
separatists’ world.
Anti-American propaganda campaigns are the easiest to carry out. A single
press article containing sensational facts o f a ‘new American conspiracy ’
may be sufficient. Other papers become interested, the public is shocked,
and government authorities in developing countries have a fresh opportunity
to clamor against the imperialists while demonstrators hasten to break the
American embassy windows.
41
Russia’s early January produced documentary
“The Extremism” o f Spain film clips o f U.S. military operations in Libya,
followed by o f by (the party Ukraine],
riots in Central Asia, fighting in Azerbaijan, and demonstrations in Lithuania.
The narrator suggested that the U.S. government would soon try to organize
underground political movements in Central Asia in order to cause the
collapse o f the Soviet Union.48
46 <http://ria. ru/coumns/20150526/1066579933.html#ixzz41BRM17eo> (accessed February
27, 2016)
47 Bittman 1985, p. 23.
48 <http://intellit.muskingum.edu/russia_folder/pcw_era/sect_09a.htm> (accessed February
24, 2016).
KREMLIN PROPAGANDA 161
of d'~tat Poles"
Although this was written in 2014--2015, it is impossible to differentiate
between these contemporary talking points and the ideological verbiage of
the former Cold war era. The purpose of portraying the Euromaidan events
as the upshot of US involvement, with Cold War terminology was to mobilize
the Russian domestic audience, radicalize audiences in the Eastern and
Southern Ukraine (which was planned by Kremlin to be transformed into
wider Novorossia separatists entity) and sow suspicion among Europeans
and the rest of the world
As Ladislav Bittman notes,
of 'conspiracy'
in Soviet propaganda made use of precisely the same language and visuals in
their depictions of US involvement in the potential breakup of the Soviet
Union. Almost 30 years later depictions of the US meddling with Ukraine
within Russia's exclusive sphere of influence are still present. For example,
in of 1991 Soviet Television a 40-minute documentarv
titled The Faces of Extremism" that showed
shots of terrorism in Lebanon, Northern Ireland, and pain were mixed
with of US Grenada, Panama, and scenes of a rally held by Rukh democratic in Ukraine]
Lithuania
US in in of Union."
« 201 50526/html#ixzz41BRMI7eo> p. + musk ingum.edu/htm> 2016)
produced ‘documentary’ titled “Ordinary
Fascism: Ukrainian Variant49”, the intent of which was to create an analogous
“The Extremism” did 1990s.
‘documentaries’ governmental
institutions are accused of engaging in direct and indirect actions
to disrupt the Soviet/Russian influence. For example, in 1991, according to
the US Congressional Report, the Soviet Defense minister Yazov “joined
S. S. USSR50”.
This historic rhetoric is similar to the rhetoric that the Kremlin now
organizations being ‘foreign agents’. case of StopFake.org when opponents want to denigrate the project, they
involvement51.
motif to connect the numerous fake news stories and pictures that it uses
to characterize the events in Ukraine. It alleges that a Ukrainian junta, as
the puppets of America (Washington DC, the White House), usurped power
‘undemocratic’ lackeys US. by project
form in fake photos such as the one titled “Kyiv Residents Kneel before Biden52”,
or the fake news story “Biden Proposes to Federalize Ukraine53”, or another
fake photo titled “Ukrainian Soldier Kisses the American Flag54”.
49 <http://www.ntv.ru/video/964481/> (accessed February 27, 2016).
50 <http://intellit.muskingum.edu/russia_folder/pcw_era/sect_09a.htm> (accessed February
24, 2016).
51 <http://tvzvezda.ru/news/vstrane_i_mire/content/201602132031-tzwp.htm> (accessed February
23, 2016).
52 <http://www.stopfake.org/en/photo-fake-kyiv-residents-kneel-before-biden/> (accessed
February 22, 2016).
53 <http://www.stopfake.org/en/fake-biden-proposes-to-federalize-ukraine/> (accessed February
22, 2016).
54 <http://www.stopfake.org/en/photo-fake-ukrainian-soldier-kisses-american-flag/>
(accessed February 22, 2016).
162 YEVHEN FEDCHENKO
In 2014 the NTV channel a similar documentary 'titled "Ordinary
Variant", perception of the events in Ukraine among the Russian domestic audience,
much as The Faces of Extremism"did in the 1990s
In both 'documentaries the US government and western non-governmental
joined
in the anti-U.S. and anti-democratic chorus, accusing the U.S. National
Endowment for Democracy, which aids democratic groups worldwide, of
trying to influence events in the USSR"
very uses, which accuses of foreign agents'. Even in the
immediately point to the donor support from the National Endowment for
Democracy as evidence of US government and CIA involvement"
Just as the Soviet Union once did, Russia makes use of an overarching
Washington using undemocratic procedures and forced the Ukrainian people into the
role of for the US Most of the fake stories encountered the still support this narrative strand in one for or another. It is encapsulated
Kyiv Biden"
"Biden Ukraine", Ukrainian Flag"
ru/96448 1/> 2016)
so musking um.edu/pew_Oa.htm> 2016)
-ru mire content/htm (February
2016)
9 stopfake.org/bidenb> 2016)
8-www.org/en fake-February
2016)
'' stopfake.org/2016)
propaganda depicts having coup d’état. necessary homophobia, xenophobia exploited by Ukraine.
‘fascist narrative’ is history. Western propaganda points
pretexts occupy justify
aggression army Ukraine.
“Putin. War”, ‘fascist narrative’: “projected political exposed authorities
‘banderite’ ‘Nazi’ by propaganda got struggle fascists55 56”.
it’s reports concerning gatherings, wearing memorials
mongering speech.
April 20th, Russia’s private falsely
reported regional wearing George ribbons flags commemorating
Army’s victory) forthcoming Victory Day’s May 9th 56.
persons destroyed plaques commemorating
55 Report “Putin. War”. Edited by Illya Yashyn and Olga Shorina. <http://www.putin-itogi.
ru/putin-voina/> (accessed February 27, 2016).
56 <http://www.stopfake.org/en/kharkiv-forbids-veterans-from-wearing-st-george-ribbons/>
(accessed on February 27, 2016).
KREMLIN PROPAGANDA
Ukraine as a fascist state
163
Russian Ukraine as been transformed into de facto
fascist state as a result of the d~tat. All attributes of fascism
such as anti-Semitism, racism, are the
propaganda and are the core of the active measures deployed against Ukraine
The fascist narrative'is one of the most important themes as it connects
Ukrainian events with the World war II narrative of, which is a heroic chapter
in former Soviet, and now Russian It has become the bedrock of the
whole anti-Ukrainian and anti-Wester effort and its main have been used as to Crimea and have been used to the of Russian in Eastern Ukraine
The Report Putin. War", prepared by the Russian opposition, explains
why it was important for Kremlin to use the fascist narrative "Rhetoric of
war was to current news. This Ukrainian authorities
as banderite and Nazi Kremlin and Russia involved
in the same cause as in 1941-45 - with fascists"
WWII (or the Great Patriotic war as it's called in Russian historiography)
has very strong associations for the people of Ukraine, especially for those
who fought in it. Russian propaganda often exploited this association in order
to further its aims. Fake mistreatment of WWII veterans
in Ukraine, such as the revocation of their benefits, bans on celebrations or
bans on the of medals, and the demolition of war memorials
were often circulated. There were even reports of some veterans being
beaten. The main purpose of these distorted reports was to incite unrest and
foster war and the dissemination of hate speech
On 20, 2015 Russia's tabloid Lifenews TV channel that the head of the Kharkiv council had forbade Second
World War veterans from wcanng St. nbbons and (commemorating
the Red Army's at the Day's march
on 9.86
On September 3, 2015 Russian REN TV and Channel 5 falsely reported
that unknown had memorial Soviet soldiers in Kharkiv.
Putin. War" by putin-itogi
2016)
% kharkiv-gcorge-ribbons>
2016)
The news was accompanied by an amateur video uploaded to YouTube.
The video shows two men dismantling the memorial plaques and taking them
away to an undisclosed location. However, when the spokesperson for the
Kharkiv city council was contacted was in fact confirmed that the plaques
had simply been removed for renovation57.
30th, 2015 celebration of the anniversary of the Declaration of Ukrainian Independence
in Kherson. At a small event in the city’s center, young people gathered to
read the Declaration aloud and to sing the national anthem. The manipulated
report was titled “Nationalists Swear Allegiance to Hitler in Kherson58”.
In April 2015 the Zvezda TV channel and REN TV published a false
report about an unfinished concentration camp financed by “pro-American”
group incarcerate “of terrorism separatism
by ruling regime Ukraine.” report footage
taken by a war correspondent who was standing at the construction site of
what was actually an uncompleted prison in the city of Zhdanovka, in the
Donetsk region. The correspondent opines: “It is very convenient place to
keep prisoners wouldn’t you say? Eastern European
Guantanamo59!”
On May 18th, 2015 the government-owned Russia 24 network dedicated
a news program to focus exclusively on alleged anti-Semitism in Ukraine.
“Vesti at 23:00” aired a report that was followed by a discussion entitled “The
new exodus of Jews from Ukraine: Jewish organizations accuse Brussels of
keeping the problem of neo-Nazism in Ukraine quiet”. StopFake debunked
this escalating Russian disinformation narrative and Vyacheslav Likhachev,
the head of a prestigious Monitoring group for the rights of ethnic minorities at
Association of the Jewish Organizations and Communities of Ukraine (VAAD)
confirmed the falseness of the Ukrainian anti-Semitism and neo-Nazi claim60.
Fascism is not a new invention, nor is it as prevalent as alleged, but it has
certainly been one of the most exploited themes of Soviet active measures.
The Russian government has used the term to smear \ policymakers in various
57 <http://www.stopfake.org/en/fake-memorial-plaques-to-soviet-soldiers-destroyed-in-kharkiv/>
(accessed February 27, 2016).
58 <http://www.stopfake.org/en/fake-nationalists-swear-allegiance-to-hitler-in-kherson/>
(accessed February 27, 2016).
59 <http://www.stopfake.org/en/fake-concentration-camp-for-separatists-under-constructionin-
donetsk-region/> (accessed February 27, 2016).
60 <http://www.stopfake.org/en/jewish-monitoring-group-expert-debunks-russia-24-claimabout-
neo-nazis-and-anti-semitism-in-ukraine/> (accessed February 27, 2016).
164 YEVHEN FEDCHENKO
You Tube
Kharkiv city council was contacted it was in fact confirmed that the plaques
renovation
On June 30, the LifeNews TV channel used a video from the
city's anthem "Nationalists Kherson
a pro-American"
that had been built to mcarccratc those ··accused oftcrronsm and separatism
the in Ukraine." The was based on "of war here, wouldn't There is such an Easter Europcan
Guantanamo"!"
18, Ukraine
Vesti 23.00" "The
nco-quiet". Vwacheslay Likhachey,
claim".
$-www.stopfake.org'en kharkivb>
2016)
s stopfake.org/nationalists-2016)
www.stopfake.org/constructionin-
2016)
«<stopfake.org/claimabout-
ukraineb> 2016)
as postwar Germany, Italy or Austria.
‘fascism’-
themed Saddat:
(KGB) Service A ’s active measures against Sadat made much o f his early
enthusiasm for Adolf Hitler. Sadat himself acknowledged in his autobiography
that, as a fourteen-year-old when Hitler became Chancellor o f Germany, he
had been inspired by the way the Führer set out to ‘rebuild his country’/.../
As late as 1953 he said publicly that he admired Hitler ‘from the bottom of
my heart’. The KGB claimed the credit for inspiring publications with titles
such as ‘Anwar Sadat: From Fascism to Zionism’, which portrayed him as a
former Nazi agent who had sold out to the CIA.61
Ion Mihal Pacepa, a high-ranking defector from the Romanian security
‘fascism’ WWII. “Fascism”. ‘to frame’ XII,
‘Nazi collaborators’.62
‘human stories’. ‘fact’ it63.
61 Andrew 2006, p. 840.
62 Pacepa, M. 2013. Disinformation. WND Books.
63 <http://insidethecoldwar.org/sites/default/files/documents/Soviet%20Influence%20Activities%
20Active%20Measures%20and%20Propaganda%20August%201987.pdf> (accessed
10, 2016).
KREMLIN PROPAGANDA 165
parts of the world, and has even used it put pressure on entire countries such
Austna
The Intelligence historian Christopher Andrew describes how a fascism'themed
narrative was used to undermine the reputation of Egyptian President
Saddat
As of for in of by Fhrer 'country'/. /
'heart' 'Sadat Zionism', (14_6
lon services, gives a detailed account of how the 'fascism' narrative was an
instrumental component of active measure against the Catholic Church after
WWII The Soviets were relentless in "faulting the Catholic church for its
role in the rise of Fascism". The same tool was also used to compromise, or
as it was called within active measures procedures, to frame Pope Pius XII
the Croatian Cardinal Stepinac and the Ukrainian Cardinal Slipyj who were
characterized as Nazi collaborators'
If monikers such as US-backed junta and fascists are not enough to scare
an audience who might not be avid followers of politics, Russian active
measures effectively uses what is known as human interest stories'. Most of
them will be about different diseases and the fact that they were invented by
the US government. The purpose of planting such a story is two-fold: first,
to scare as many people as possible by playing on their most basic fears, and
second - to blame the US for the spread of infections and fuel the new wave
of anti-Americanism, which is by default the overall objective of Soviet/
Russian active measures.
The classical example of this would be Operation Infektion, which sought
to accuse the United States of deliberately creating the AIDS virus in a
government laboratory and then spreading it
p. 840
« pacepa, I. Books
6 -insidethecoldwar.org sites default files documents/Soviet«20Influence620Activities%
February
In 1983, shortly after its founding, the Indian newspaper The Patriot, broke
a story blaming the U.S. military in creating the AIDS virus and releasing
as a weapon. This story appeared first in minor Soviet-controlled outlets.
Then in 1985 was picked up by the Soviet weekly newspaper, Literaturnaya
outlets:
In 1987 alone, it appeared over 40 times in the Soviet-controlled press and
was reprinted or rebroadcast in over 80 countries in 30 languages. The AIDS
virus was terrifying and not well understood at the time, so this piece o f Soviet
disinformation was especially damaging to the U.S. image.64 65
The US government put a lot of pressure on Kremlin and Gorbachev
personally to make sure that Soviet Union would stop disseminating such
fake stories. All medical research cooperation between the US and USSR was
suspended before Moscow finally dropped the story:
The Soviets stopped using the AIDS disinformation story. It became clear, /.../,
that they would back off when the cost of their lies became too much for them.
As the new disinformation stories appeared, we pressured the Soviets on their
failure to carry out Gorbachev’spromise.66
But this story did not disappear entirely. It was recently revived in another
form more recently when a tweet appeared saying that the Ukrainian army in
Donbas was firing AIDS infused shells in order to spread it among the local
population. This was compounded with accusations asserting that the ZIKA
originated government facilities:
An outspoken former chief Russian sanitary inspector has suggested that the
United States could be infecting mosquitos with the Zika virus in the Black
Sea area as a form o f biological warfare against Russia. In comments to
the BBC Russian Service on February 15, Gennady Onishchenko said that
Russian scientists have identified a surge since 2012 in the kind o f mosquito
that carries the virus in Abkhazia, a breakaway Georgian region that borders
Russia on the Black Sea coast. “This worries me because about 100 kilometers
from the place where this mosquito now lives, right near our borders,
there is a military microbiological laboratory o f the army o f the United
States.66
64 <http://ndupress.ndu.edu/Portals/68/Documents/stratperspective/inss/Strategic-Perspectives-
11.pdf> (accessed February 10, 2016).
65 Waller 2007, p. 355.
66 <http://www.rferl.org/content/former-russian-health-chief-suggests-us-plotting-zikaattack/
27555365.html> (accessed February 22, 2016).
166 YEVHEN FEDCHENKO
it outlets
it Gazeta where it was published many other outlets
of US image."
stories •../,
them
Gorbachev s promise."°
saymg Ukrmman m
Don bas Al DS virus from US facilities
in of I5, of " I00 kilometers
is of of States."
6 ndu.edu/Perspectives-
IL.pdf> 2016)
" p. « zikaattack/
html> 2016)
On January 26th, 2016 the website Pravda.ru ran a news item claiming
hospitalized deadly
Kharkiv.“Doctors
medicine”, spokesman Eduard Basurin. On January 22nd, the same Basurin announced
press hospital suffering “that laboratory
Shelkostantsia”.
thereby gaining greater among Ukraine’s armed
forces nor did the Ukrainian Defense Ministry have any information about
illness.67
Conclusion
continuation
reality propaganda rejuvenated,
applied contemporary
contemporary propaganda
measures.
used.
By analyzing stories StopFake years, possible identify separate originating from Russian state- and privately owned media. Many of them are
historiography.
deny propaganda command connecting their respective ‘media’ outlets to the Kremlin. Nor
67 <http://www.stopfake.org/en/fake-20-soldiers-die-from-leaked-mysterious-virus/>
(accessed February 2016).
KREMLIN PROPAGANDA 167
26, that 20 Ukrainian soldiers died and 200 were with the California flu virus outside the eastern Ukrainian city of Kharkiv.Doctors
have recorded an unknown virus causing extremely high temperatures which
cannot be brought down with any medicine, - claimed DNR separatist
22, at a conference that Ukrainian soldiers had been admitted to a Kharkiv
from a virus "that leaked from an American located in the village of Shelkostantsia
None of these fake stories were accompanied by facts or photos and over
a period of several days, the two stories gradually melded into each other,
traction on the web and social media.
There was no mass illness or viral infection Ukraine's amed
any such mass illness."
Although Russian propaganda reached its apex during war in Ukraine, it must
be kept in mind that it is not a new phenomenon and it is actually a continuation
of Soviet propaganda that never truly disappeared even after the collapse
of the Soviet Union. In modern Russian is a rebuilt and transformed version that has been to the situation with increased effectiveness. The Russian system and the Soviet system both share the same objectives. The former
borrows the same techniques from the latter in its application of active measures.
Yet they differ in quantity, quality and the instruments that are used
the more than 500 stones that StopFakc has debunked over
last two ycars, it was to 18 scparate disinformation themes,
variations of the Soviet paradigm, and are built on anti-Americanism, their
own moral superiority and falsified historiography
Most Russian journalists, editors, media managers or policymakers will
the existence of or the existence of a vertical chain of
media 6 stopfake.org/20-20, 2016)
will they acknowledge the conduction of active measures. When Margarita
why RT distorted information in their piece titled: “Putin Will Bring Down
Western Economies”68 she attributed to incompetence and lazy journalism.
Simonyan explained that usually the twisting or falsification of facts does
not arise from evil intentions, but rather can be attributed to the publishing of
information from a source without fact checking it first. Others media outlets
then republish the also without bothering to check the information:
There is a huge competition, everybody wants to be the first, quicker, interesting. All this is done to get more audience. I f you are the first to publish
something - it will attract audience, that’s why you are doing this. I t’s too long
to verify information - someone might be quicker to publish it before you do.69
Unfortunately, this is not a sufficient explanation for the hundreds and
hundreds of fakes and forgeries coming from Russian media system. They are
not results of bad journalism but the result of well-preserved and refurbished
system of active Soviet measures used to manipulate media on a global scale
and to supplement military and diplomatic efforts.
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170 YEVHEN FEDCHENKO
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Dr YEVHEN FEDCHENKO, Director, School of Journalism
org
Annex 1029
Patrick Thornberry, The International Convention on the Elimination of All Forms of Racial
Discrimination: A Commentary (2016)
The International
Convention on the
Elimination of All Forms of
Racial Discrimination
A Commentary
PATRICK THORNBERRY
OXFORD
UNIVERSITY PRESS
Contents
Table of Cases xi
Table of Legislation xviii
List of Abbreviations xxviii
I. Introduction
2. The Convention: Genesis and Background 5
A. Race: Sorcerers and Apprentices 5
B. Race and Colonialism 9
C. Race and the Slave Trade 13
• D. Race, Mandates, Minorities 14
E. Comment 17
3. Towards the Convention 19
A. Development of Standards 19
B. The Universal Declaration of Human Rights 21
C. Disenchanting Race 22
D. Racial Prejudice, Religious Intolerance 24
E. Te Declaration on the Elimination of Racial Discrimination 29
F. From Declaration to Convention 30
G. Comment 32
4. The Convention and the Committee 34
A. Introduction 34
B. Traaux Pr~paratoires 37
C. Practice 43
D. Comment 64
5. Title and Preamble 71
A. Introduction 72 . l' B. Tavaux Pr~paratoires 73 C. Practice 81
D. Comment 92
6. Article 1: Definition of Racial Discrimination 97
A. Introduction 97
B. Travaux Pr~paratoires IOI
C. Practice 105
D. Comment 131
viii Contents
7. Article 1, Paragraphs 2 and 3: Discrimination and Non-Citizens 140
A. Introduction 140
B. Travaux Pr~paratoires 142
C. Practice 144
D. Comment 155
8. Article 2: Obligations to Eliminate Racial Discrimination 160
A. Introduction 160
B. Travaux Pr~paratoires 163
C. Practice 168
D. Comment 197
9. Special Measures under the Convention: Definitions and Obligations 204
A. Introduction 204
B. Travaux Pr~paratoires 208
C. Practice 217
D. Comment 23l
10. Article 3: Segregation and Apartheid
A. Introduction
B. Travaux Pr~paratoires
C. Practice
235
235
243
246
D. Comment 259
11. Article 4: Racist Hate Speech 267
A. Introduction 267
B. Travaux Pr~paratoires 27l
C. Practice 278
D. Comment 296
12. Article 5: Introduction and Drafting 306
A. Introduction 307
B. Travaux Pr~paratoires 308
C. Practice 314
13. Article 5: Civil and Political Rights 315
5(a) Equal Treatment before Tribunals and all other
Organs Administering Justice 317
5(b) The Right to Security of the Person and Protection by the
State Against Violence or Bodily Harm, Whether Inflicted by
Government Officials or by any Individual, Group, or Institution 321
5(¢) Political Rights: Elections, Government, Public Affairs,
Public Service 326
Consultation and Consent 33l
Contents ix
Self-Determination 334
5(d) (Other) Civil Rights 336
14. Article 5: Economic, Social, and Cultural Rights 364
5(e)(1) The Rights to Work, to Free Choice of Employment, to
Just and Favourable Conditions of Work, to Protection Against
Unemployment, to Equal Pay for Equal Work, to Just and
Favourable Remuneration 365
5(e)(i) The Right to Form and Join Trade Unions 368
5(e)(ii) The Right to Housing 369
5(e)(iv) The Right to Public Health, Medical Care, Social Security,
and Social Services 374
5(e)(·) The Right to Education and Training 378
5(e)(vi) The Right to Equal Participation in Cultural Activities 383
5(f) Access to Public Places and Services 388
Coda 390
15. Article 5: Comment and Conclusions 392
16. Article 6: Remedies for Racial Discrimination 399
A. Introduction 399
B. Travaux Pr~paratoires 404
C. Practice 407
D. Comment 425
17. Article 7: The Role of Education in Combating Racial Discrimination 430
A. Introduction 430
B. Travaux Pr~paratoires 434
C. Practice 436
D. Comment 449
18. Article 20: Reservations 456
A. Introduction 456
B. Tavaux Pr~paratoires 460
C. Practice 462
D. Comment 466
19. Article 22: Role of the International Court of Justice 472
A. Introduction 472
B. Travaux Pr~paratoires 473
C. Reservations and Declarations 474
D. Practice 474
E. Comment 481
Contents
20. The Convention on the Elimination of All Forms of Racial
Discrimination: A Summary Reflection 484
A. General 484
B. The Adoption of the Convention 485
C. External Developments 487
D. Emblematic Developments in the Life of the Convention 489
E. Coda 501
Appendix. International Convention on the Elimination of All Forms
of Racial Discrimination 503
Select Bibliography 512
Index of Names 523
Subject Index 527
184 Ar. 2: Obligations to Eliminate Racial Discrimination
Convention and ensure that the principle of self-governance of local and regional bodies
does not hamper its human rights obligations to promote economic, social and cultural
rights of disadvantaged or discrimination groups, as per the Convention'.'
Discussions in the travaux clarified that 'public institutions' is wider than 'public
authorities'. In Hagan v Australia, the State party claimed that the sports trust which
owned the stadium which exhibited an offensive racial sign was 'a private body rather than
a public authority or government agent', the acts of which therefore fell outside 2(1)(a)
which did 'nor deal with private acts of discrimination. Tie was contested by the
petitioner, who pointed out that the trustees were appointed and could be removed by a
minister and that their function was 'to manage land for public (community) purposes
and that the trust was 'therefore a public authority or institution for Convention
purposee,> Te Committee did not comment on the Article 2 point in its reference
to 'displaying a public sign considered to be racially offensive'.' I, light of the general
understanding of 'public institutions' in the drafting of Article 2, the more open interpretation
of the sub-paragraph coheres better with the letter and spirit of the Convention.
VII. Article 2(1)(b) Not to Sponsor, Defend or Support Racial
Discrimination by any Persons or Organizations
The trope of negative statements of obligation in Article 2 continues in Article 2(1)(b),
which shifts the emphasis from discrimination by organs of State and 'public institutions'
towards discrimination by actors backed by the State, though an expanded reading of
'public institutions' in 2(1)(a) suggests an overlap between the two sub-paragraphs. NonState
actors, or 'private' persons or organizations are not explicitly identified as the focus of
the text: the reluctance of the drafters to qualify persons or organizations by 'private' will
be recalled.' Lerner discerns a 'gradual system of undertakings' in Article 2, moving
from negative statements in the first two sub-paragraphs to explicit statements of positive
action" 2(1)(b) in his view, 'simply intends to prevent persons or organizations engaged
in racial discrimination getting the official support of the Ste? Te provision
complements the other reference to persons and organizations in Article 2, and the
proscription of racist organizations in Article 4(b). The negative phraseology does not
rule out an active stance by the State vis-~-vis the fulfilment of its obligation: in terms of
the typology of obligations referred to above, Ruggie lists 2(1)(b) and 2(1)(d) as aspects of
'the obligation to proteee.
pd
4 pr. 4.5.
' pr. 5.4.
6 p. 8.
7 Te commentary on the International Law Commission's Draft Ariles on Seate Responsiblity for
Internationally Wrongful Acts notes that 'the general rule is that the only conduct attributed to the Seate at the
international level is that of its organs of government or of others who have acted under the direction, instigation
or control of those organs, ie. as agents of the State': <http://legal.un.org/legislativeseries/documentBsoo/k 25/
Book25_par!_ch2' pdf>, commentary on chapter II, par. 2. CEDAW GR 28, par. 13, recalls the due
diligence obligation on States parties to prevent discrimination by private actors, adding that the acts of some
private actors may be attributed to the State under general international law.
98 7%e lterrational Convention, p. 37,
» pd
200 upping State Obligations for Corporate Acts: An Examination of the UN Human Rights Treaty System,
Repon No. 1 Ierational Convention on the Elimination of All Forms of Racial Discrimination, 18 December
2006, p.4.
THORNBERRY
Practice 185
Regarding the verbs in the sub-paragraph, 'sponsor' overlaps with 'support' and may be
understood in terms of contribution to costs, taking responsibility for the acts of another,
or generalized support for a person or organization. " 'Support' is wider and may include
assistance, encouragement, or approval as well as financial support; in a related sense it
may include 'endure' or 'tolerate.R 'Defend' has an altogether more active significance,
and, when too active, may be a good candidate to engage proscriptions such as those in
Article 4. Regarding the potential application of 2(1)(b), Lerner's examples are those of
'an official publishing house that prints a racist book, or a local government that gives
financial support to a school engaging in racial discrimination' Meron comments that
support' may (arguably) encompass 'not only the extension of benefits as a positive action
but also the failure to impose obligations that are required of other persons or organizaions',
instancing the granting of tax-exempt benefits to a private organization that
discriminates on account of mace" Ie view of the extensive interpenetration and blurring
of boundaries between public and private activities in modern States, including the
financial nexus, the sub-paragraph potentially opens up a broad prospectus. The subparagraph
is under-litigated in Article 14 cases. Along with 2(1)(a), the citation of 2(1)(b)
was dismissed as irrelevant by the State party in BJ. v Denn" eeause that case did
not involve State-promoted discrimination. In Hagan v Australia, the State party simply
denied that the establishment of the sports ground trust in question, its continued
existence, or its response to the claim by Hagan, engaged the sub-paragraph in any
manner, a claim that was not commented upon by the Committee?
2(1)(b) is relevant in principle to discrimination in any field covered by the Convention:
activities of individuals as well as collective action are caught by the provision, and
the term 'persons' includes legal persons such as corporations as well as natural persons.
Cases include organizations close to the apparatus of governance as well as those removed
from it. Egregious cases of State support for organizations in close proximity to governance
would include, inter alia, private militias supported by the State, and funding for
political parties. In concluding observations on the Russian Federation, CERD expressed
concerned at information that Cossack organizations had engaged in acts of violence
against ethnic groups, were used by local authorities to carry out enforcement operations,
and enjoyed State funding. The Committee recommended that the State party ensure that
no support would be provided 'to organizations that promote racial discrimination', and
that Cossack paramilitary units be prevented from carrying out law enforcement functions
against ethnic groups. Te Committee interrogated the Cossack question in later
observations, concerned by information 'that voluntary "Cossack patrols" began to appear
in 2012...to carry out law enforcement functions alongside the police. Belgium was
201 Concise Oxford English Dictionary (th edn, Oxford University Press, 2004), pp. 1394--5.
202 pd, p. 1448.
pd
204 rMeron, The Meaning and Reach of the Inerational Convention on the Elimination of All Fors of
Racial Discrimination, AJIL 79 (1985), 283-318, 295.
20' pa. 4.3.
206 pa. 4.5.
27 CERD/C62/CO/7, pun. 16.
2+ CERDIC/RUS/CO/20-22, par. 14.
THORNBERRY
186 Ar. 2: Obligations to Eliminate Racial Discrimination
requested to provide information on a law of 1998 on withdrawing financial support to
political parties that incite racism or racial hostility."
Corporations, whether acting territorially or extraterritorially, ave increasingly
been drawn into the orbit of Article 2, notably in connection with despoliation of
indigenous lands and territories, including sacred sites. The Committee is critical of
arrangements for resource exploitation such as permissions for tourism developments, or
concessions and licences for mining and logging operations, granted without the free,
prior, and informed consent of the indigenous peoples concerned.'R 23 summarized
the seriousness of situations where 'indigenous peoples have been, and are still being,
discriminated against and deprived of their human rights...and in particular that they
have lost their land and resources to colonists, commercial companies and State enterprisee.
Te concluding observations of the Committee provide examples of many
cases involving indigenous peoples, which are, as noted, accorded a prominent place in
the Committee's early warning procedure. In some instances, State bodies are implicatedArticle
2(1)(a)--while many cases concern the activities of private corporations enjoying
sundry forms of state support and approval. Notable early warning 'decisions' of the
Committee include Decision 1(68) regarding the Western Shoshone, and a series
regarding resource exploitation in Suriname." Letters of concern at the activities of
corporations are more numerous than decisions: instructive illustrations of the Committee's
approach include communications to Canada (2008 and 2009); France (2009);
Niger (2009 and 2010); Papua New Guinea (2011); Peru (2010); The Philippines
(2007--12); and Tanzania (2009.13), Te Committee may link its censuring of
corporate activity to 2(1)(d) rather than 2(1)(b) without the implication that such activity
is sponsored, defended, or supported by the State.
VIII. Artide 2(1)(c) Review Policy, Amend, Rescind, Nullify
Discriminatory Laws and Regulations
Continuing the logic of Article 2, instances of State-based and State-supported discrimination
referred to in the first two sub-paragraphs require modifications of existing law
and policy. The accumulation of verbs suggests an obligation to mount a holistic assault
on defective legal structures and institutions. The travaux evidence some difficulties with
terminology including the claimed redundancy of 'nullify' following 'rescind'; both were
retained in order to satisfy the variety of concepts among legal systems. The injunctions to
act are arranged more or less sequentially in that before action is taken, the policy
architecture (including laws that express that policy) should be 'reviewed', followed by
necessary amendments to laws and regulations, including their rescission. Lerner cites the
maaux for the view that 'nullify' is equivalent to 'suppress entirely', which may add
0» CERD/C60/COD2, pan. 14.
10 ge remarks on extraterritorial activities of corporations in the present chapter.
ta some cases, the concerns have related to thc activities of non-indigenous individuals who trespass on
indigenous territories, rather than corporations: see for example the series of letter sent to Brazil regarding the posa Serra do Sol: <http://www2.ohchr.org/english/bodies/cerd/early-waring. ham>.
GR23, pa. 3.
A/61/18 pp. 7-10.
+ Decision 1(67), A/60/18, pp. 9--10, 1(69), A/61/18, pp. 10-11.
' [dividual letters may be found on the Committee's web page: <http://www2.ohchr.org/english/bodies
cerd/early-warning.hum>.
THORNBERRY
316 Ar. 5: Civil and Political Rights
as other references, and might suggest a certain narrowing of conception. De Schutter
comments that, while 'equality before the law' is 'addressed to law enforcement authorities',
whether executive or judiciary, 'equal protection of the law is addressed to the
lawmaker." On the other hand, the scope of 'equality before the law', which was adopted in
part to cover the alleged vagueness of 'equal justice before the law', was not discussed to any
great extent and appears to have been accepted as a principle that was not to be interpreted
narrowly.' In practice, 'equality before the law does nor appear to be highlighted by the
Committee with any frequency and, in any case, represents only one aspect of the vision of
equality in Article 5, which also accounts for 'equal treatment before the tribunals', 'equal
suffrage', 'equal access to public service', 'equal pay for equal work', and 'equal participation
in cultural activities'. On one reading, the deployment of multiple references to equality in
Article 5 may express little more than an accumulation of tautologies; an alternative, more
persuasive reading is that its message of equality implicates wider, more generous meanings
than a simple focus on the institutions of justice.
Enough has been said elsewhere in the present work to underline the point that, in its
work on Article 5 and other articles, the Committee deploys broad understandings of
equality, with an overall focus on active, positive notions of equality that transcend formal
statements of principle. Many variants on the equality theme have been referred to,
including 'formal equality', 'de facto equality'," 'equality of rights', 'equality in the
enjoyment of rights' of various groups," 'effective equality','' 'the values of equality
and non-discrimination'' 'racial equality',' 'equality of women and girds'," 'substancve
equality','and so on.
Compared with Article I, the list of 'grounds' in the chapeau of Artide 5 is reduced
from five to four with the omission of 'descent', an omission that has not inhibited the
Committee from applying the framework of Article 5 to descent-based groups, nor to
other groups on the basis of intersectionality. General Recommendation (GR) 29 on
descent-based discrimination names a spectrum of civil, political, economic, social, and
cultural rights drawn from this article that have special resonance for the groups in
question." As noted in Chapter 12, the drafting records of Article 5 do nor illuminate
the reasons for the elision of 'descent' from the list of grounds. Article 5 also uses
' 0.de Schumer, Inerational Human Rights Law (Cambridge University Press, 2012), p. 577; he phrase 'equal
protection of the law' incorporates 'a general prohibition of discrimination on forbidden grounds... whenever it
manifests itself in law':P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, 1991), p. 285,
and references therein. See also W. Vandenhole, Non-Discrimination and Equality in the View of he UN Homa Bight
Tray Bodies (latersventda, 2005), Chapter II [henceforth Non-Discrimination and Equality].
" Id, p. 596. CE Ar&de 26 ICCPR. see discussion in Chapter 12.
" GR 32, par. 6. Se Chapters 6, 7, and 9 for further discussion.
Concluding observations on Bolivia, CERD/C/BOL/CO/17-20, par. 14; Guatemala, CERD/CIGTMI
CO/12-13, para. 5.
Concluding observations on Laos, CERD/C/LAO/CO/16-20, para.15 (gender equality); Portugal
CERD/CIPRT/CO/12-14, par.18 (gender equality) United Arb Emirates, CERD/C/ARE/CO/17, pan
1 (equality between' citizens and non-citizens).
'Concluding observations on Serbia, CERD/CI/SRB/CO/I, pan. 16 (Roma, Ashlali, and Egyptians).
Concluding observations on Moldova, CERD/C/MDA/CO/8-9, par. 17.
Concluding observations on Uruguay, CERD/C/URU/CO/16-20, para. 16.
M Concluding observations on he Cech Republic, CERD/CICZE/CO/8-9, par. 18.
' Concluding observations on Mauritius, CERD/C/MUS/CO/1519, para. 14, special measures directed
towards the achievement of substantive equality: see also GR 32, para. 6. se Chapter 6.
THORNBERRY
Ar. 5(a) 317
'distinction' rather than 'discrimination', whereas 'distinction' is only one member of the
typology of discrimination in Article 1.' In practice, 'discrimination' and 'distinction' are
treated as interchangeable: GR 20 on 'non-discriminatory implementation of rights and
freedoms' refers simply to the obligation of States under Article 5 to guarantee the
enjoyment of rights 'without racial discrimination'.""
5(a) Equal Treatment before Tribunals and all other
Organs Administering Justice
The guidelines for 5(a) request information on measures taken to ensure that actions by
States parties in the fight against terrorism do not involve racial discrimination and that
individuals 'are not subjected to racial or ethnic profiling or stereotyping'.' The request
footnotes the Committee's 2002 statement on racial discrimination and terrorism in
which it was stated, inter alia, that the principle of non-discrimination is to be observed
'in particular in those [matters] concerning liberty, security and dignity of the person,
equality before the courts and due process of law, as well as international cooperation in
judicial and police matters' in these fielde."
Background standards on fair trials include Articles IO and 1H of the UDHR, Article 14
of the ICCPR, and many of the UN human rights treaties, including the Convention
against Torture (CAT), de Convention on the Rights of the Child (CRO), he
Convention on Migrant Workers (CMY), and the Convention on the Rights of
Persons with Disabilities (CPRD), as well as the leading regional treaties. The
standards are amplified by such as General Comment (GC) 29 of the Human Rights
Committee, and have been regarded as of jus cogens quality; in terms of derogability under
the ICCPR, fair trial standards, even if not explicitly listed as non-derogable, 'create
safeguards for those norms that are explicitly listed...such as the right to life and the
prohibition against torture'." On he equality aspect, Shah summarizes the analogous
situation under the ICCPR in terms of derivation from Article 26, and implying equal
access to courts, equality of arms, and the right to be treated without discrimination.
The Committee has been greatly exercised in its lifetime by racial disparities in the
justice system, including matters of prison sentencing," the death penalty, the treatment
see Chapter 6.
GR 20, pan. 1
' (RD/C/2007/1; the 5(a) guidelines also request States parties to ensure that claims of racial discrimination
are investigated thoroughly, that claims against officials are subject to independent and effective
scrutiny, and that GR 31 should be implemented. ° )/57/18, Chapter XI.C par. 6.
Aride 15.
Arile 40.
Article 18.
' Aide 13.
' For a fuller list, see S. Shah, 'Detention and trial', in D. Moeckli, S. Shah, and S. Sivakumaran (eds),
International Homan Rights Law (2nd edn, Oxford University Press, 2014), pp. 259-85, pp. 270-1
1ad, p.271.
pd, p. 273.
Concluding observations on the US, CERD/C/USA/CO/6, pars 20 and 21, the lamer with regard to
disproportionate use of life sentences without parole against young offenders from racial, ethnic, and national
minorities; also CERD/C/USA/CO/7-9, paras 20, 21, 22, and 23, on criminal justice issues more broadly.
3 CERD/CIUS/CO/6, pan. 23; CERD/C/US/CO/7-9, par. 20.
THORNBERRY
318 Ar. 5: Civil and Political Rights
of young offenders, the plight of indigent accused," disproportionate numbers of minorities
in the prison system as a result of structural discrimination, ere The problem of
racialization of justice systems is not confined to criminal processes and extendstc o ivil
processa nd other areas of justice administration, though the Committee hasd evoted greater
r, , 1o .n \.0) · space to tribunals that judge criminal cases. The statement in GR 35 on the importance of
p" « independent, impartial, and informed judicial bodies in justice systems will be recalled
this advice, promoted in the context of combating racist hate speech, is applicable across the
spectrum of rights and institutions called upon to address issues of racial discrimination.
GR 31 on racial discrimination in the criminal justice system, adopted by the Committee
in 2005, represents its broadest treatment of justice issues. The recommendation
implicates Article 5 but also Articles I and 6, as well as calling to mind other CERD
general recommendations" and a swathe of human rights instruments. In addition to
advocating legislative and policy strategies to address racism in the justice system, the
recommendation outlines a series of essential steps to be taken at all stages, from access to
law and justice, reporting of racist incidents, initiation of judicial proceedings, arrest and
detention, through to trial and judgment, sentencing and punishment.°
Issues arising from State responses to the threat of terrorism have been of concern,
particularly since the events of 11 September 2001. The Committee has acknowledged
the national security concerns of States but insists that human rights obligations condition
the security responsesT. he treatment of non-citizens under anti-terrorism legislation has
occasionemd any comments. GR 30--the recommendations of which straddle various
paragraphs of Artile --recommends that States parties ensure 'that non-citizens
detained or arrested in the fight against terrorism are properly protected by domestic
law that complies with international human rights, refugee and humanitarian law'.
Stereotyping of certain groups as associated with terrorism has been the subject of
criticism. Practices such as identity, entry, and residence checks on foreigners, extradiion,"
and the spectre of non-refoulement have all engaged attention," as well as
legislation providing for the indefinite detention of non-nationals suspected of terrorism
without charge or trial. The application of loosely drafted anti-terrorism legislation
pd, pan. 22.
Concluding observations on Colombia, CERD/C/COL/CO/14, pan. 21, Afro-Colombian and indigenous
persons. See also concluding observations on Mexico, linking the high numbers of indigenous in prison
with shortcomings in the justice system, particularly with regard to the shortage of interpreters and qualified
bilingual justice officials: CERD/C/MEX/CO/16-17, para. 14.
pa. 18, further discussed in Chapter IH.
4/60/18, chapter IX; further discussion in Chapter 16.
M Te three GRs (27, 29, and 30) regarding, respectively, the Roma, descent-based groups, and non-citizens.
% Te reporting guidelines envisage the blanket implementation of GR 31.
gentencing practices where foreigners found guilty of crimes under Belgian law received more severe
sentences than Belgians were highlighted by the Committee: CERD/C/BEL/CO/15, para. 14.
4/59/18, ch. VIII, para. 20; see also Chapter7.
Concluding observations on Australia, CERD/C/AUS/CO/15-17, para. 12, concerning the collection of
biometric data of applicants for Australian visas in certain countries.
Concluding observations on Albania, CERD/C/ALB/CO/1, para. 25.
picussed, infra, in relation to Article 5(b).
Concluding observations on the United Kingdom, CERD/C/63/CO/11, par. 17. The Committee has
also recommended avoiding arbitrary detention: concluding observations on Australia, CERD/C/AUS/CO/1517,
para. 24; New Zealand, CERD/CNZL/CO/18-20, para. 20 in the case of Israel, the Committee asserted a
violation 'under international human rights law' with regard to practices of administrative detention, CERD/Cl
ISR/CO/14-16, par. 27.
THORNBERRY
320 Ar. 5: Civil and Political Rights
issue was the right under 5(a) to equal treatment before the tribunals: '(a) applies to all
types of judicial proceedings, including trial by jury'." In the event, the Committee took
the view that the competent judicial bodies of Norway had examined the issue, that it was
not for the Committee to interpret the relevant rules on disqualification of jurors, and it
was not possible to conclude that a breach of the Convention had occurred. The
Committee nonetheless made the recommendation that 'every effort should be made to
prevent any form of racial bias from entering into judicial proceedingstahda t in
criminal cases 'duaett ention be given to the impartiality of juries'.'Te strictures
logically extend t o proceedings for war crimes, which should be 'effectively investigated
and prosecuted, irrespective of the ethnicity of the victims and the perpetrators
involved',"
Access to justice also implicates legal aid and support for programmes of test cases to
clarify the rights of minorities and other disadvantaged groups. In individual sets of
observations on justice issues, the Committee has expressed concern regarding the high
standards of proof required of indigenous claimants in land rights litigation that inhibits
their ability to secure the recognition of their right." Preference has been expressed in a
number of cases for alternative dispute mechanisms and negotiation to achieve outcomes
acceptable to indigenous groups and to States" and the Committee has criticized aggressive,
overly adversarial litigation strategies pursued by States in such contexts."
The development of cultural integrity norms has influenced justice mechanisms as
much as other areas of action. Traditional authorities and justice systems and customary
law are subject to the non-discrimination critique: 'respect for customary law and
practices should not be ensured through a general exception to the principle of nondiscrimination,
but should rather be implemented through positive recognition of cultural
rights'. The principle that customary and religious systems are required to respect
the non-discrimination standard may have particular salience where systems run the risk
of multiplying the forms of discrimination experienced by women. The Committee has
insisted on a number of occasions that the principle of free choice of system must be
applied in order, inter alia, to protect 'Particularly marginalized and vulnerable persons
such as women in traditional societies'. The approach resonates with that adopted by
the Human Rights Council's Expert Mechanism on the Rights of Indigenous Peoples
(EMRIP) in a study pointing out that indigenous juridical systems are not static and
CERD/C/44/D/3/1991 (1994), pan. 9.2.
8» pd, par. 9.5.
pd, par. 10.
Concluding observations on Croatia, CERD/CIHRV/CO/8, par. 15.
CERD/IC.CAN/CO/18, par. 26; CERDIC/CAN/CO/19-20, pan. 21.
CERD/IC/AUS/CO/15-17, pan. 18.
CERD/C/CAN/CO/18, pan. 22.
« CERDIC/CAN/CO/19-20, pan. 20.
6 fditonal' justice mechanisms pertaining to indigenous peoples and other groups are discussed in
Caper 16 on Arial 6.
Concluding observations on Zambia, CERD/CI'ZMB/CO/16, par. 9
" concluding observations on Ethiopia, CERD/CIETH/CO/7-16, para. 12. In the same paragraph, the
Committee 'welcomed the...information that the application of religious and customary laws practised by
some ethnic groups is subject to the consent of the concerned individuals or groups'. In the case of Namibia, it
was recommended that the State party introduce 'a system which allows individuals a choice between customary
law systems and the national law while ensuring that the discriminatory aspects of customary law are not
applied': CERD/CINAMICO/12, para. IL.
THORNBERRY
Ar. 5(b) 321
unchanging but dynamic and capable of demonstrating respect 'for both the legal
autonomy of indigenous peoples and international human rights law',° including the
demand 'that women's dignity and physical integrity be respected'.
5(b) The Right to Security of the Person and Protection by
the State Against Violence or Bodily Harm, Whether
Inflicted by Government Officials or by any
Individual, Group, or Institution
Background standards regarding violence and bodily harm are many and various in
international human rights law, stemming from Article 3 of the UDHR, which enshrines
rights to life, liberty, and security of person, and Article 5 which provides that no-one
'shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Core protections include the right to life and freedom from torture and ill-treatment, as
well as protection from the violence associated with genocide and crimes against humanity,
and war crimes. The right to life is protected by treaty and customary international law
and implicates the issue of application of the death penalty. The prohibition of torture has
generated a specific convention (the CAT) as well as a Sub-Committee on the Prevention
of Torture, and is treated as a prohibition to be respected under customary international
law as well as ju cogens." Issues of violence are briefly addressed in the Inter-American
Convention on Racism and Racial discrimination. Among groups implicated in CERD
recommendations, issues of life, liberty and security' are addressed in Article 7 of the
UNDRIP, while 'force' is referred to in the context of prohibiting forced assimilation or
population transfer, and forcible removal from lands," [LO Convention 169 also
supplies relevant standards." Violence against women is also the subject of considerable
current attention at the international level, particularly following the Declaration on the
Elimination of Violence against Women, adopted by the General Assembly in 1993, and
the establishment of the mandate of a Special Rapporteur on violence against women in
1994; the adoption by CEDAW of GR 19 also stands as a landmark development.
Specific instruments also address the issue, including the 1994 Inter-American Convention
on the Prevention, Punishment and Eradication of Violence against Women (Convention
of Bel~m do Par4)," and the Council of Europe Convention on Preventing and
Combating Violence against Women and Domestic Violence.'
The wide orbit of the paragraph covers sources of violence whether pro public or private; its I / i ic«dig « Lame, 'oavonid y dinc@ion in he pro«con oil
' Sadly of Access to Justice in the Promotion and Protection of the Rights of Indigenous Peoples, ANH RC/27/65,
par, 23.
6 pad, citing R Sieder and M.T, Serr, 'Indigenous Women's Access to Justice in Latin America',
Christian Michelsen Institute Working Paper No. 2010.2 (CMI, 2010)
67p%ea concise review of relevant international norms and standards see N. Radley, 'Integrity of the Person',
in Moeckdi et al., International Human Right Law, pp. 174.94, the chapter provides an extensive account of
hard' and 'soft' legal provisions as well as a concise reading list and a list of relevant websites.
fe particular, Artile 4.
gee in particular Artiles 8 and I0.
" Especially Ariles 9, 10, and IL. For minorities, see Article 6 of he FCNM.
7 33 1LM 1534 (1994)
' CETS No. 210 (2011)
THORNBERRY
322 An. 5: Civil and Political Rights
against any violence, whoever inflicts ie'.' Article 5 is complemented in this respect by
Article4u , nder Eich acts of violence are to be declared as offences." The sweep of the
protected right also recalls the references in Article 2 to discrimination by persons, groups,
and organizations. Reporting guidelines for 5(b) request a wide spectrum of information,
including on measures to prevent violence and to ensure no degree of impunity for
perpetrators, to prevent illegal use of force by police, and encourage communication and "s" 'ewesm ag as o soma an«i @sr oon._The
(guidelines also refer to encouraging police recruitment of personnel from groups protected
So ,, es under the Convention and to ensuring that non-citizens 'are not returned to a country or I"'' mritory where they are at risk of being subject to serious human rights abuses, including
er torture,' etc. " p Searching the term 'security' in CERD practice throws up multiple references to
national security concerns, notably in the context of measures against terrorism," to
\o social security," and even to 'private security personnel'." Tere is ample practice D regarding security of persons, as might be expected in light of the everyday nature of
discrimination against groups leading to violence, frustrating the aspiration voiced in the
preamble to 'peace and security among peoples'. The need for 'security of person',"
'security and integrity'," 'legal security'," 'security and freedom'," have all been referred
to by the Committee in many contexts, some of which stand outside the spectrum of
violence." Besides measures set out in the guidelines, measures to guarantee freedom of
worship, legal documentation, and regularization of migration programmes, larger-scale
restoration of peace and security, police force training, and resolute action to punish
perpetrators of violence, are all standard CERD recommendations. The approach is
holistic in that personal security may be threatened by a variety of discriminatory practices
that require complex, multifaceted responses on the part of State authorities.
Allegations of killings and violence, including allegations of torture," punctuate the
Committee records, whether of members of particular ethnic groups through interethnic
violence or otherwise, and of human rights defenders. Concerns expressed may
7> N Lerner, The lnerational Convention on the Elimination of All Fors of Racial Discrimination (Sijthoff
and Noordhoff, 1980), p. 57. " see Chapter 11.
' CERD/C/2007/1, p. 9, section B.
"~ Dicussion of Article S(a) in the present chapter.
7 picussed below in relation to Aridle (e)(iv).
7 Concluding observations on Nigeria, CERD/CINGA/CO/18, par. 19.
7' Caaduding observations on Kore, CERD/C/63/CO/9, para. 10, with regard to migrunt workers.
caduding observations on Iuly, CERD/CIITA/CO/16-18, para. 18, of non-citizens and Roma and
Siar.
" Caoncduding observations on Rwanda, CERD/CIRWA/CO/13-17, para. 14, predictability and legal
security required of a criminal law, with respect to legislation on 'the ideology of genocide'
" Concluding observations on Yemen, CERD/C/YEM/CO/17-18, para. 16, security and freedom of
worship.
f%duding the reference to 'nutritional security' in concluding observations on Guatemala, CERD/C/
GTM/CO/12-13, pa. 12.
coacluding observations on Kyrgyzstan, CERD/CIKGZ/CO/5.-7, para. 7
' sundry examples include concluding observations on Venezuela, CERD/C/VE/CO/19-21, par. 17,
murder and killings of the Yupka people; Mexico, CERD/C/MEX/CO/16-17, para. 12, human right
defenders; Kenya, CERD/CIKEN/CO/1-4, par. 15, post-election violence; Australia, CERD/C/AUS/CO/
15-17, par. 23, Assaults on Indian students; Pakistan, CERD/C/PAK/CO/20, paras 16 and 17, against
foreigners, and Baluchi and minority women; China, CERD/C/CHN/CO/13, para. 17, inter-ethnic violence.
THORNBERRY
Ar. 5(e() 381
Stares parties have been treated to compendium recommendations on minority education
regarding resources, staffing, and curriculum content,' recommendations for
which may be highly specise.' Many recommendations to ratify the UNESCO Co%.
vention on Discrimination in Education have been made by the Committee, which has
also counselled States to follow the guidelines on education from the UN Forum on
Minority lssee! And the Expert Mechanism on the Rights of Indigenous Peoplee."
The stress in these instruments one ffective participation of groups in the development of
educational policies and strategies, a concept amply validated by international standards,
isechoed in a gftofCERD recommendations to_States parties.' Consistent attention has
been paid to access to education for groups under the protective umbrella of the Convention,
segregation,'? and the cultural/linguistic component of educational practice.
The Committee has been notably concerned with barriers to access, insisting, as it does
throughout the normative spectrum of the Convention, on 'effective accese' all levels
of education, a proposition repeatedly referred to in the case of the Rona.' atiers may Tei a variety of factors,' including poverty,' and States have been invited to
address the educational consequences of such poverty through school subsidies or scholarships
for poorer segments of the population or other meane.' [[literacy has also been
identified as a barrier requiring strong measures to reduce or eliminate ie'? Liked to the
notion of access is that of educational segregation.' An active approach to desegregation
Concluding observations on Kazakhstan, CERD/CKAZ/CO/4-5, para. 9: referring to ensuring the
adequate quality of the minority schools, adequate funding and resources 'particularly for schools using
languages of smaller ethnic groups', the provision of 'adequate professional staff and minority language
textbooks', and improved access to university education for students of all ethnic groups without discrimination,
including through the adoption of special measures'; the recommendation 'that school textbooks include
appropriate consideration of the cultures, traditions and history of minorities and their contribution to Kazakh
sociesy', also flows from Aride 7.
? Such as the recommendation to New Zealand to include references to the Treaty of Waicangi in the final
version of he New Zealand Curriculum, CERD/CNZL/CO/17, para. 20. A Waitangi chapter is included:
hp'pl/nacurriculum.tki.org.n/The-New-Zealand-Curriculum>.
" Concluding observations on Slovakia, CERD/C/SVK/CO/6-8, para. 16.
" Concluding observations on Paraguay, CERD/CIPRY/CO/1-3, para. 14.
saadry examples of consultation/participation recommendations include those for Argentina, CERD/C/
65/CO/, par. 19, Australia, CERD/C/AUS/CO/15-17, para. 21; Colombia, CERD/C/COL/CO/14, par
22; Cech Republic, CERD/CICZE/CO/8-9, par. 12; and Ukraine, CERD/C/UKR/CO/19-21, par. 14; the
Rage of consultation with stakeholders may be used, and on the use of cultural mediators.
See discussion of Article 3 in Chapter 10
The education of women and girls belonging to minorities, in light of phenomena of double discriminaion,
is a regular subject of recommendations: for example, concluding observations on Burkina Faso,
CERD/CIBFA/CO/12-19, pan. 9 Turkmenisaa, CERD/C/CO/12-19, para. 20.
8 Concluding observations on Albania, CERD/C/ALB/5-8, para. 16.
4 Concluding observations on Belarus, CERDIC/BLR/CO/18-19, par. 16; concluding observations on
he Russian Federation, CERD/C/RUS/CO/20-22, par. 17.
$$ p recommendations of the UN Forum on Minority Issues on education refer to three overlapping
dimensions of access: discrimination, physical accessibility, and economic accessibility; the recommendations
also refer to 'cultural, gender and linguistic barriers' that may have equivalent access-denying effects: A/HRC/
I0/11/Add.I, 5S March 2009, section IV, 'Equal Access to Quality Education for Minorities'. The Forum
recommendations in this respect are adapted from GC 13 of CESCR.
1 CERD/CIZAF/CO/3, par. 20.
17 Concluding observations on India, CERD/CIND/CO/19, par. 25.
1% caacduding observations on China, CERD/CICHN/13, par. 23.
1» (Apter 10 of the present work.
THORNBERRY
382 Ar. 5: Economic, Social, and Cultural Rights
has been called for in some casee,' and policies of segregation, de facto or otherwise,
roundly criticized as incompatible with equal access of all to quality education. As noted
earlier,' the over-representation of Roma in specialized classes or schools is a problem to
be vigorously addressed, replacing the segregation by integration into mainstream educaet.'
The Committee has also issued anti-segregationist strictures on mono-ethnic
schools in some contexts, or schools of two (ethnically-based) classes under one roof,
physically separated and following different curricula." Te methods by which integration
may be achieved have been placed in context with regard to travelling families of
Roma and others: States parties have been recommended to 'find appropriate solutions'
for integrating the children of travelling communities, 'aking into account the community's
lifestyle', or more accurately, their culture! Ae Committee also recognizes the
importance of 'culturally sensitive education'.'?
The limitation of the teaching medium to a particular language or languages may_also
create educational barrier, I jjh regard to special needs schools, the Committee was
implicitly critical of the use of language as the criterion for assignment to such schools,
supporting State initiatives to reject such a criterion and requesting information on its
implementation." Te linguistic medium may also function to limit access to education
in cases where pedagogical practice does not make adequate allowance_for_minority or
indigenous languages. to the disadvantage of children or other learners from chose
communities. As the reporting guidelines suggest, concern with language in education
is broader than the question of access. Recommendations have emanated from the
Committee for bilingual and multilingual education, as well as multicultural_and intercurl
educa6et.I6T conten is daces@cally that of finding a way fowrd_for
minority or indigenous groups to preserve and sustain their own languages and cultures
while accessing the lang of the majorit , often coterminous with the national or
of icial language, In this light, bilingual education may be a mechanism for achieving a
non-assimilationist objective, while its abolition, especially in the case of threatened
languages, is treated as a matter of serious concern."
As evidenced by the foregoing, education questions are prominent in the work of the
Committee and its recommendations are copious and increasingly detailed. While
6o Concluding observations on Namibia, CERD/C/NAM/CO/12, para. 13; USA, CERD/C/USA/CO/6,
par, 17.
6l (apter 10 on Article 3, discussion of 'segregation'
Concluding observations on Slovakia, CERD/C/SVK/CO/9-10, para. IM. In addition to D.H. v Cech
Republic, and Orur Croatia, discussed in Chapter 10, analogous ECHR cases include Horvath and Kiss v
Honga, App. No. 11146/11 (2013); Lvida and Or v Greece, App. No. 7923/10 (2013); Sampanis nd Or
Greece, App. No. 32526/05 (2008); Sumpis and Or Greece, App. No. 59608/09 (2012)
6 Concluding observations on Bosnia and Herzegovina, CERD/CIBIH/CO/6/Add.1, par. 23.
6 can.duding observations on Norway, CERD/C/NOR/CO/19-20, par. 20.
16' (eluding observations on Colombia, with regard to Afro-Colombian and indigenous children,
CERD/IC/COL/CO/14, pan. 23
66 Concluding observations on Mauritius, CERD/C/MUS/CO/115-19, para. 20.
6 Concluding observations on Austria, CERD/C/AUT/18-20, par. 17.
on 5e the brief discussion of terminology in Thornberry, 'Education', pp. 328--30.
6 (ucluding observations on Australia, CERD/C/AUS/CO/15-17, para. 2I: in response to the abolition
\\ of bilingual education in the Northern Territory of Australia, the Committee recommended 'programmes to
revitalize indigenous languages and bilingual and intercultural education for indigenous peoples, respecting
cultural identity and history'. CE. the recommendation for language revitalization to EI Salvador, CERD/CI
SLV/CO/14-15, pan. 21.
THORNBERRY
Ar. 5(e(i) 383
practice is more coherent than a wilderness of single instances, the Committee has not
issued a dedicated general recommendation to subsume the main issues into an integrated
text.
5(e)(vi) The Right to Equal Participation in Cultural Activities
The cultural participation right in ICERD connects closely with Article'27 of the UDHR
on 'participation in the cultural life of the community'. The UDHR standard on cultural
participation is notably taken forward by Article 15 of the ICESCR, Article 13 of
CEDAW, Article 31 of he CRC, and Articles 43 and 45 of the CMW, which open
out participation from the 'life of the community' (singular) in the UDHR to 'cultural
life'; ICERD is similarly broad in referring to 'cultural activities'. Regional provisions on
culture and participation in culture include Articles 17 and 22 of the ACHPR, Article 14
of the Additional Protocol to the ACHR on Economic, Social and Cultural Rights, and
Ariles 25 and 42 of the Arab Charter on Human Rights. Key instruments recognizing
the identity rights of particular groups are replete with cultural references in line with basic
understandings of 'minority' and 'indigenous peoplee, 7O
As expressed in Artide 5 of the Convention, the culture sub-paragraph overlaps
significantly with Article 7 and with the immediately foregoing provision in Article 5
on education, as well as, inter alia, the 'civil rights', particularly participation, freedoms of
thought, conscience, and religion, and freedom of opinion and expression. While CERD
has not issued a general recommendation on participation in cultural activities, culture in
a broad sense functions as part of the intellectual scaffolding of a Convention focused on
ethnicity and allied concepts, and informs the body of general recommendations and
concluding observations.'
Reporting guidelines for Article 5 request information on 'participation in cultural life,
while at the same time respecting and protecting cultural diversity', and on measures to '
'encourage creative activities' by persons belonging to protected groups, and measures to
enable such persons 'to preserve and develop their culture'. Information is also requested
on facilitating access to media and establishment of own media, measures to 'prevent racial
hatred and prejudice in competitive sports', and 'on the status of minority, indigenous and
to Te definition of 'minority by UN Special Rapporteur Capotorti, cited in Chaper 6, is one of many
informal definitions in the international canon that focus on culture, traditions, religion and language': Study on
the Right of Persons belonging to Ethic, Religious and Linguistic Minorities (United Nations, 1991), para. 568;
the culture reflex is built into Aride 27 of he ICCPR, which includes for persons belonging to minorities 'the
right... to enjoy their own culture', and to the UNDM, in addition to referring to the protection of identity in
Aride I-essentially cultural identity--refers throughout to cultural elements to be recognized and enjoyed;
the Council of Europe'+ FCNM i similarly suffused with cultural concerns throughout its length. Equally,
indigenous rights are essentially about the survival of discrete and distinctive groups, whose rights as expressed in
LO Convention 169 or the UNDRIP re culturally based; the very concept of indigenousness is culturally
bounded. Among a raft of publications, for basic accounts of the development of international standards with
regard to minorities, see Thornberry, Internati o nal Law and the Rights of Minoritier, Weller (ed.), Universal
Mioriny Right (Oford University Press, 2007) for indigenous peoples see, inter alia, S.J. Anaya, Indigenous
People in International Law (Oxford University Press, 1996), and P. Thornberry, Indigenous Peopler and
Human Righ (Manchester University Press, 2002). Extensive further references appear in the bibliography
to the present work.
7 Among the general recommendations, see in particular Nos 5, 21, 27, 30, 32, 34, ad 35. For a rare,
explicit reference to the right, see Hagan v Australia, CERD/C/62/D/26/2002 (2002), paras 1, 4.16, nd 5.7.
THORNBERRY
384 Ar. 5: Economic, Social, and Cultural Rights
other languages in domestic law and in the media. Te schedule of requested information
pictures culture as a complex of creative activity, institutions, and ways of life
pertaining to a plurality of communities, with language presented as a prominent marker of
community identity.' Insofar as 'cultural activities' may suggest mere 'manifestations' of
culture or cultural 'events', organized or otherwise, any such limitations have been
subsumed by the Committee into the broader, organic metaphor of 'cultural life'.
The sub-paragraph has not been developed to any significant extent in the communications
procedure under Artile 14. According to the petitioner in Hagan v Australia, the
presence of a racially offensive sign at a football ground carried the consequence of an
inability on his and his family's part to attend the ground, thus impairing their right to
equal participation in cultural activities;' the specific point was not commented upon by
the Committee.
Whereas 'participation' in Article 5(c) is, ex facie, focused on political processes and
public service (albeit interpreted more broadly),'? 5(e)(i) links with an undefined
prospectus of 'cultural activities'. The understanding of 'participation' and 'taking part'
set out in CESCR GC21 implies activity and engagement through the use of phrases such
as 'act freely', 'to choose', 'to identify or not' (with communities), 'to take part', 'to
engage', 'to express oneself' (in the language of choice), to 'know and understand', 'to
learn', 'to follow a way of life', 'to be involved', etc; issues of access and contribution
to cultural life are also regarded as intrinsic to the concept."" I CESCR and ICERD, the
envisaged active citizenship in political life is paralleled by choice, freedom, and opportunity
in cultural life. 'Equal' participation must be assumed to carry its standard meaning
in practice, requiring action on the part of the State to secure the effective enjoyment of
the right. In particular contexts, participation may become a particularly demanding
obligation on governments, intensified by the right to self-determination of indigenous
peoples, and the right of persons belonging to minorities, recognized in a variety of
instruments, to participation in decisions affecting them.'As is evident from the present
and immediately preceding chapter, the theme of 'participation' runs though the specrum
of rights in Article 5 as a whole.
The influence of the work of the Committee on Economic, Social and Cultural Rights
(CESCR) on the practice of CERD in this respect is notable. In the words of the former
Committee, culture 'is a broad, inclusive concept encompassing all manifestations of
e human existence. The expression "cultural life" js an explicit reference to culture as a
' living process, historical, dynamic and evolving, with a past, a present and a future.'
CERD/C2007/1, pp. 11-12
'Te reference to racial hatred in competitive sports is more closely attuned to Articles 4 and 7: CERD
GR35, pun. 43
7 Ha v Australia, par. 5.7;the cause is discussed at greater length in Chapter 17. In response to the point
on (e)(v), the State parry observed, par. 4.16, that it was beyond the Committee's mandate to ensure that the
tight was established; the mandate was rather to monitor its implementation once granted on equal terms, ' se Chapter 13.
76 (sCR GC21, pars 14 and 15. See also Advisory Committee on the Framework Convention for the
Protection oNf ational Minorities, Commentary on the Effective Participation of Persons belonging to National
Minorities in Cultural, Social and Economic Life and in Public Affairs, ACFC/31DOC(2008)00. pcussed in the preceding chapter.
7 CNo. 2I on the Right of Everyone to Take Part in Cultural Life (Article 15(1)() of he International
Covenant on Economic, Social and Cultural Rights), E/C12/GC/21 (2009), para. 11. Sec also, ibid., pars 12
and 13.
THORNBERRY
Annex 1030
A.E. Antoniuk, National Coordinator of International Center for the Study of the Preservation
and Restoration of Cultural Property in Ukraine, Letter No. 12 (April 2018)
April 27, 2018 No. 12
The Assembly of the Crimean Tatar People
Ref. No. _________
Experts of the International Center for the Study of the Preservation and Restoration of
Cultural Property (ICCROM) of Ukraine have reviewed the matter concerning the restoration work
at the Palace of the Crimean Khans complex (Khan Palace) in Bakhchysarai in the Autonomous
Republic of Crimea.
Numerous photographs of the work and a description of them were submitted.
In addition, archival documents from the UkrNDIprojektrestavratsia Institute [Ukrainian
Restoration Research and Design Institute], which performs scientific studies of the Khan Palace
complex dating from 1960, 1962, 1965, 1987, 1988 and 1994 and subsequent years, were studied.
In general, it is important to note the high professional level of the studies and decisions
made regarding conservation, restoration and renewal of many historical elements of the buildings
and the rehabilitation of their authenticity. Guided by the principles of the long-standing school of
Ukrainian restoration and by the requirements of international charters on the protection of
historical and cultural treasures, the design decisions adopted methods that preserve to the utmost
both individual building elements and the historical and artistic appearance of the entire ensemble.
The structural elements typical for Tatar Khanate construction in the 16th-18th centuries were
preserved to the utmost. Changes or repairs were made to only a portion of the wooden structures.
Later layers were removed to return the original paintings and other artistic elements of the period.
Unfortunately, the work being currently done is typical for new construction. The largescale
replacement of wooden structural elements with modern materials is not consistent with the
construction principles of the Crimean Tatar khanate, subverts the historical accuracy of the entire
ensemble, and causes irreparable damage to the history and culture of the Crimean Tatars as a
nation.
-..
IS!I International Center for the Study of
the Preservation and Restoration of
Cultural Property (ICCROM)
0101$.yix, Lvtlt, 9,
+J40 44406-63 $6
+180 444064119
+)$067-20%$0$7
atoy 2ntolt ggnlto
As an illustration of this, one may present the example of the complete replacement of the
tiling with new ones. The leakage in certain areas of the roof was the result of damage to sealed
joints, since the tiling was made of plastic clay, which dried out over many years and cracked
because of the deformation of the wooden load-bearing elements of the roof. Obviously, the tiling
should be removed and cleaned, with some damaged elements replaced, and reinstalled on a new
watertight layer.
The wooden beams are being unjustifiably replaced with industrial composite beams
instead of repairing intact structures. The use of reinforced concrete structures in such historical
buildings contributes a genuine dissonance to their authenticity.
The additional loading on the wall and base of the buildings poses a tremendous danger
and may lead to an increase in strains and, as a result, to an emergency situation.
It is important to note that in 2003 before the Russian Federation’s occupation of Crimea,
the Khan Palace in Bakhchysarai was nominated for inclusion in the previous UNESCO World
Heritage List. In 2012 the site “Historical Milieu of the Capital of the Crimean Khans in
Bakhchysarai” for nomination to that same list included the Khan Palace. According to current
rules, these sites are subject to special preservation requirements. All restoration work must be
approved by governmental monument protection authorities. And it is also necessary to inform the
UNESCO World Heritage Center of this work.
National Coordinator
ICCROM in Ukraine [signature] A. E. Antoniuk
Annex 1031
Center of Monument Studies, "Restoration" of the Great Khan Mosque (Biyuk Khan-Djami) in
Bakhchisaray: On the Tile Roofing (14 March 2018)
[letterhead in Ukrainian:]
NATIONAL
ACADEMY
OF
SCIENCES
OF UKRAINE
UKRAINIAN
HISTORICAL
MONUMENTS
PRESERVATION
SOCIETY
CENTER OF MONUMENT STUDIES
Vul. Lavrs’ka, 9, Building 19, Kiyiv-15, 01015 Ukraine
Registration ID 16295925, r/r 35220005000277, MFO 820019, APPB “Aval’”
Phone: 8-044-2807879, 8-044-2807127, Phone/Fax: 8-044-0280-6463
Email: m-center@ukr. net, [email protected]
Document ID No. 33/02
Version of 03/14/2018
“Restoration” of the Great Khan Mosque (Biyuk Khan-Djami)
in Bakhchisaray: on the tile roofing.
Expert opinion
The issue of the barbaric restoration of the Khan’s palace complex in
Bakhchisaray has appeared numerous times in mass media and social networks [see the
Crimean Tatars video of 02/07/2018; Crimean Tatars video of 02/15/2018]. Recently,
the focus has been on the Biyuk Khan-Djami (the Great Khan Mosque), where so-called
“renovation and restoration” work has been underway that is openly destroying this
architectural monument. The mosque’s roof tiles have been removed and the wooden
beams sawed up. A wooden earthquake support has been replaced with one of reinforced
concrete and instead of authentic “tatarka” tiles, they plan on laying down Spanish tiles
of another technology that differ substantially from the original [The Khan’s Palace in
Crimea: destruction masked as restoration in 2017. 2.07-2.20].
This situation forces us to explore the history of the restoration of the Biyuk
Khan-Djami’s roof, describe the technology used in the production of “tatarka” roof tiles,
show the ill-advised actions and incompetence of the project planners who decided to
replace the entire roof of the mosque with a new product that differs greatly from tatarka.
The Great Khan mosque is one of the earliest buildings of Bakhchisaray, built in
the 4th decade of the 16th century. In the chronicle of Sakhib I Geray, describing the
construction of the new capital of the Crimean Khanate, a statement reads “The Khan
ordered the construction of a beautiful mosque next to the palace” [Gaivorononskiy,
2016].
In the mid-17th century, the Turkish traveler Evliya Chelebi describes it as
Sakhib Geray-Khan’s most important mosque [Evliya Chelebi 2008, p. 105].
In 1736, during the war of the Crimean Khanate with the Russian Empire,
Bakhchisaray was seized by the troops of Field Marshall Christoph von Münnich, who
ordered the Khan’s capital and palace be burned to the ground. However, before doing
this, he ordered Captain Manstein to
make a description of the palace (which has been preserved to this day) and only
after this did they burn the Khan’s residence [Gaivoronskiy 2004, p. 68]. The fire
destroyed most of the buildings, after which a new era began for the palace.
After the Russian forces under von Münnich left (1736) and Lassi (1737),
architects and artists were sent from Constantinople to restore the palace and construction
materials were provided. The restoration began under Khan Selyamet-Giree (1737-
1743), documented by a stone tablet mounted over the central entrance to the Khan
Mosque from the riverbank. It states that the Khan “built” (“binaqladi”), not “restored,”
the mosque. However, this situation is likely due to the fact that the fire destroyed nearly
the entire building except for its stone foundation. It was restored by Selyamet II Geray
and already given a new appearance [Gaivoronskiy 2016]. Thus, according to the tablet,
the Biyuk Khan-Djami was first restored in 1740 [Sergeyeva 2015, p. 258]. It was then
that the mosque was covered with “tatarka” tiles that until recently were a part of its roof.
The next restoration work carried out on the roof was in the 1770s and these
were completed before Empress Catherine the Great visited Bakhchisaray [Osmanov
2014, p. 28-29].
The 1820s-30s represented a new phase in the restoration and reconstruction of
the roof of the Biyuk Khan-Djami. This work was ordered in time for the arrival in
Crimea of Russian Emperor Alexander II and carried out under the supervision of the
architect I.F. Kolodin. He wrote that there had been a project to redo the floor, ceiling
with beams, walkway, and roof [Osmanov 2016, p. 82].
In the 1890s, the subject of restoring the Khan’s palace was raised once again,
and this included rebuilding the minarets of the Biyuk Khan-Djami [Osmanov 2015, p.
14].
In 1909 and 1912, while inspecting the mosque and connected galleries, the
engineer Sadovskiy discovered that the roof in many places was leaking, the tiles were
old, the frame and lathing had rotted, the wooden hood was hanging over the main
entrance, which was covered in tiles and sagged, risking collapse. In 1914 this work was
extended in order to partially replace the tiles over the galleries, and a temporary wooden
awning was installed over the entrance to the mosque [Osmanov 2015, p. 14-15].
In 1917 at the Khan’s Palace a National Museum for the Crimean Tatars
2
was established. More attention began to be paid to the monuments. As a result of the
work of the director of the palace museum, U. Bodaninskiy, in 1923-1924 the tiles were
replaced on the roof of the Biyuk Khan-Djami and all doors and windows were reinforced
[Osmanov 2015, p. 15].
The next restoration and reconstruction work to replace the tile roofing of the
Great Khan Mosque took place in the 1950s and 60s [Osmanov 2013, pp. 97, 100;
Osmanov 2014a, p. 241].
All the tile replacements described above were carried out using “tatarka” tiles
under protection from the 15th/16th centuries until the mid-20th century. In this regard, it
is essential to pay particular attention to the technologies involved in manufacturing
“tatarka” tiles based on the structure of the tile and its morphological characteristics.
Unfortunately, there are practically no special writings on this type of tile. There
is an investigation by I.R. Gusach and D.A. Moiseyev published in the form of small
presentation texts at a conference. These describe the production of these items. We shall
note that this work is based on the materials in the Bakhchisaray Palace and the Azak
Turkish fortress (City of Azov, Rostov Oblast, Russian Federation) [Gysach, Moiseyev,
2017].
The “tatarka” tile was manufactured in a special process. They used a wooden
frame, which they set down on a flat surface. Then, they threw an absorbent on top. After
this, the master poured the clay mixture and spread it out, running his hands through the
clay (slurry) and spreading out the surface with his hands to ensure it was smooth. He
then transferred the material into a semi-cylindrical mold which gave the tile its shape.
He then brought the mold to the dryer. After drying out, the product was fired. The outer
tile surface was smooth after firing, but the inner surface was rough. A very similar
method for manufacturing roof tiles was used in Sicily in the mid-20th century, and this
can be seen in a mini-film shot in 1951 [Production of tiles and bricks in the Campidano
of Oristano, 1951 [translator’s note: Oristano is in Sardinia].
What resulted was a nearly rectangular shape (more trapezoid-like), which was
curved out in the middle, thereby forming an arch. The curved form was either semicylindrical
or wedge-like with a slightly turned down left edge, and this reflects the
manufacturing technology applied. It appears the master threw the product onto the mold
from left to right. It is also typical for the arch height of the tatarka tile to increase moving
down from the top edge to the bottom.
3
Often in the lower part of the tile you will see two to three perpendicular grooves made
by hand, so-called “finger spreads” (Figures 1-2). With the help of cylindrical shapes that
form as a result of these finger spreads, the tile could be affixed to the roof’s earthen
underlayer, creating the roof’s layout (Fig. 3). Sometimes the “tatarka” would be covered
with a slip or glaze both on the outer surface (typical for the Biyuk Khan-Djami) and
inner side. We can see separately a stamp on the tile (Figures 4-5) and insignia with
snakes (Fig. 6). Similar products were found on the roof of the oldest construction of the
palace complex, the Sara Gyuzel’ baths (Fig. 6). We have yet to clarify what these
decorations mean and their semantic significance. As for the stamps, these are unique to
medieval tiles. They will be essential especially in subsequent investigations. The
“tatarka” with stamps was discovered in old Bakhchisaray (Figures 4-5) from where the
tiles to restore the Bakhchisaray palace complex were taken in the 19th and 20th centuries.
The tiles with insignia and stamps are presented because similar shapes with ornaments
might have been present on the Biyuk Khan-Djamia, but after the “restorations” of 2017-
2018 this information has been lost forever.
I.R. Gusach and D.M. Moiseyev identified technological uniqueness in the
manufacturing process of “tatarka” tiles, allowing us to categorize their production into
several periods. The main period markers are the linear measurements of the tile and the
gradient of the upper right corner. According to investigators’ observations, the linear
measurements of the “tatarka” tile, in particular its length, tended to decrease from 46-
48 cm (the longest being 67 cm) in the 16th century to 33 cm by the turn of the 20th
century. A second significant period marker for dating the tile is the gradient of the upper
right corner, which ovth century
to an obtuse angle (110 – th and 20th centuries [Gusach, Moiseyev 2017,
p. 17].
An important characteristic of the “tatarka” tile is the color and structure of its
body. The color ranges from light red to almost brown, while the structure is either solid
or brittle with a dash of lime, gruss, and iron particles both small and large.
The particularities of the tile body and technology applied in the tile’s
manufacture indicate several production centers that have not yet been discovered. It is
most likely that these were located within the Pontiisk region, as it is unlikely the tile
was brought from afar for building and renovating roofs. One of these production centers
4
supposedly was locaetd in the Crimea (there is evidence that one of the sites was
discovered not far from the village of Liubimovka on the Kache river, but this
information has not been officially published). The tiles may have been specially ordered
for renovating the roof of the Biyuk Khan-Djami in the 18th and early 20th centuries. The
renovations undertaken in the 20th century were probably undertaken with tiles from
destroyed buildings in the old part of Bakhchisaray that could not be restored.
Thus, an analysis of “tatarka” tiles taken from the Biyuk Khan-Djami with their
temporary serial IDs gave us valuable information on the periods of the mosque’s
restoration (which parts of the building’s roof and when it was restored). Moreover, such
a high volume of for the most part still usable material, along with its typology, designs,
and stamps, made it possible to reconstruct the ceramic production process in the Crimea
and beyond, providing information on social, economic,and political contacts the
peninsula’s population enjoyed from the 16th to the early 20th centuries. In fact, an entire
layer of the local ethnic population’s cultural history had been lost from the late medieval
period to the modern age.
They are proposing to replace the authentic “tatarka” roof tiles on the Biyuk
Khan-Djami in a “safety upgrade” project with Spanish tiles manufactured by the
company VEREA [The Khan’s Palace in Crimea: destruction masked as restoration in
2017 2.07-2.20]. According to the tile manufacturer’s official website, their tiles are
rectangular with a semi-cylindrical arch of equal height along its entire length. The inner
and outer surfaces are smooth. The body is a red, solid structure without any visible
tincture. The tiles are neither glazed nor do they exhibit finger spreads or a stamp (Figures
7-8). The manufacturers are offering various sizes and colors for their semicylindrical
tiles. For the “restoration work,” tiles were selected measuring 40x17, model color
“AÑEJA” [VEREA premium clay tiles. Official website] (Fig. 9). The tiles are
manufactured along a production belt, i.e. the clay is pressed out through an extruder
shape and cut at the appropriate length.
Thus, the Spanish tile proposed as a replacement for the “tatarka” tile appears to
differ significantly in its external appearance from the “tatarka.” Below is a table
comparing the tiles, showing the individual differences between the authentic tile and the
new tile proposed for the project:
Qualitative properties and
manufacturing
technology
“Tatarka” tile Tile manufactured by
the Spanish company
VEREA
5
Tile color Light red to brown red
Body structure Solid or brittle solid
Tinctures on the body Dash of lime, gruss, and
iron particles both small
and large
No visible tinctures
Tile surface Outer tile surface is
smooth, while the inner
surface is rough.
Smooth on both outer and
inner surfaces
Size Length decreased over
time from 46-48 cm in the
16th century to 33 cm by
the early 20th century.
40x17
Shape and cut Semi-cylindrical or
trapezoidal, wedge-like
with a slightly turned
down left edge. Typical
increase in arch height
from the top edge to the
bottom edge. The gradient
of the top right corner
over time increased from a
the 16th century to an
obtuse angle (110 –
in the 19th and 20th
centuries.
rectangular with a semicylindrical
arch of eaqual
height along its entire
length. All corners
Glaze and decoration Some tiles are covered
with a light slip or glaze.
Some were found to have
snake designs, typical for
tiles of the 16th and 17th
centuries, or a stamp (end
of the 19th – early 20th
centuries).
There are no glaze, finger
spreads, or stamps.
Manufacturing method To manufacture the tiles a
wooden frame was used,
which they set down on a
flat surface. Then, they
threw an absorbent on top.
After this, the master
poured the clay mixture
and spread it out, running
his hands through the clay
(slurry) and spreading out
the surface with his hands
to ensure it was smooth.
He then transferred the
material into a semi-
The tiles are manufactured
along a production belt,
i.e. the clay is pressed out
through an extruder shape
and cut at the appropriate
length. Thereafter, they
are dried and fired.
6
cylindrical mold which
gave the tile its shape. He
then brought the mold to
the dryer. After drying
out, the product was fired.
With such significant differences in manufacturing methods, qualitative
characteristics, and sizes, with no glaze on the roof tiles, if the Spanish tiles are used, it
will result in a loss of authenticity for the cultural monument that is the Biyuk Khan-
Djami.
In conclusion, we would like to note that the proper way to upgrade the safety of
the roof on the Great Khan’s mosque would include the following:
1) number the “tatarka” tiles before removal;
2) carry out a scientific study in order to reconstruct the historical events surrounding the
restorations and renovations carried out from the 18th -20th centuries;
3) analyze the degree of integrity of th e”tatarka” tiles and select those tiles that could be
used as roofing material.
4) select museum pieces with designs and stamps and give these to the museums as
especially valuable items;
5) restore lost details with the help of tiles manufactured with a technology similar to
that of the “tatarka”;
LIST OF REFERENCES AND LITERATURE
1. Gaivoronskiy, O. The Crimean Polity. The Crimean Khanate in people
and events. Book 1. Simferopol: Dolya, 2004.
2. Gaivoronskiy, O. Khansaray. Part 1: THE Great Khank’s Mosque
[digital resource] // Avdet. 01/07/2016, 1st edition. Access:
https://avdet.org/ru/2016/01/07/hansaraj-chast-1-bolshaya-hanskaya-mechet/.
3. Gusach, I.R., Moiseyev, D.A. Manufacturing technology of the
Crimean “tatarka” tile in the late middle ages and modern age: preliminary findings //
In: Bakhchisaray scientific readings in the memory of E.V. Veimarn. For the 100-year
anniversary of the Bakhchisaray Museum: thesis, papaers, and notifications.
Bakhchisaray. 2017. pp. 16-18.
7
4. Osmanov, E.E. Restoration and renovations on the Khansaray
architectural complex from 1944-1990 // Scientific writings from V.I.Vernadskiy Tavriz
National University. Series: “Historic studies”. 2013. T.26(65). No. 2 pp. 96-111.
5. Osmanov, E.E. Biyuk Khan-Djami (The Khan’s Mosque in
Bakhchisaray) // Modern Scientific Thought. 2014. No. 4. pp. 26-37.
6. Osmanov, E.E. Restoration of the structures of the Khan’s Plaace from 1960-
1964. // Krimean Historical Review. 2014a. No. 2. pp. 218-230.
7. Osmanov, E.E. The mosques of old Bakhchisaray: on the history of
renovations and restoration. // Modern Scientific Thought. 2015. No. 4. pp. 12-27.
8. Osmanov, E.E. Mosques of Bakhchisaray in the 19th and early 20th
centuries (from the State Archive of the Republic of Crimea) // Modern Scientific
Thought. 2016. No. 2. pp. 79-89.
9. Sergeyeva, O.I. Architectural monuments and urban construction
[Digital resource] // [in Ukrainian:] “Review of historic monuments and culture of
Ukraine. Crimean Autonomous Republic.” Digital resource. K. 2015. pp. 232-268.
Access: http://history.org.ua/LiberUA/MatZvidKrym_2015/ MatZvidKrym_2015.pdf.
10. Evliya Chelebi. Book of travels: Turkish author Evliya Chelbi on the
Crimea (1666-1667)// Translated from Ottoman Turkish and comentary by Ye. V.
Bakhrevskiy. Simferopol, 2008.
11. The Khan’s Palace in the Crimea: destruction masked as restoration
[Digital resource] // YouTube.ua. 12/27/2017. Access:
htpps://www.youtube.com/watch?v=cBhNtYnwLwY.
12. Crimean Tatars. Video. [Digital resource]. 02/07/2018. Access:
https://www.facebook.com/crimeantatars.club/videos/1072358882912041/?hc_ref
=ARRSPLqRdZ5jWU-7VjBGy53k1D-KNSCD3AFrguepeFfxXz0OrbchtW9wcvCMm5h1y4.
13. Crimean Tatars. Video. [Digital resource]. 02/15/2018. Access:
https://www.facebook.com/crimeantatars.club/videos/1077256885755574/?hc_ref
=ARTcu8WRPsX6dezxPhPrHByMefCO4mJMEfmXtPLZu3RWoSSxRVFJJP4IZV4y
Ej5P8mE&pnref=story.
14. [Italian:] Production of tiles and bricks in the Campidano of Oristano, 1951
[Digital resource]. Access: https://www.youtube.com/watch?v=Zvus5bKre2U.
15. VEREA premium clay tiles. Official website. Access:
https://www.ceramicaverea.com/en/barrel-roof-ti.
8
This expertise was conducted at the Center of Monument Studies at the Ukrainian
Academy of Sciences and Ukrainian Historical Monuments Preservation Society
(UOOPIK).
Director of the Center of Monument Studies
Ukrainian Academy of Sciences and UOOPIK,
DPhil in History,
Lecturer, honorary contributor to Ukrainian culture [signature] Ye. N. Titova
9
[stamp in Ukrainian:]
UKRAINE
KIYIV
Center of Monument Studies
Ukrainian Academy of Sciences and
Ukrainian Historical Monuments Preservation Society
Reg. ID: 16295925
Fig. 8. Tiles manufactured by the Spanish company TEJAS BORJA (screenshot from a video by the “Krym.Realii” company.)
Bakhchisaray
Fig. 6. A “tatarka” tile with “snake” designs from the Sara-Gyuzel’ baths.
Fig. 4. A “tatarka” tile with stamp from the old part of Bakhchisaray.
•
4
Fig. 9. Tiles from the
[Spanish] company [text cut
off] in Bakhchisaray (photo by
[text cut off] from Facebook.
Access:
https://www.facebook.com
[cut off]
• E I . . .
%
I
•
• I
i 4017 COVER
" gPFe TILES ON_PALLET. 624 AO ML 2 .9'.grew a2e1«
N9PER.9E, Pu.Lr: oo:
3. Example of a “tatarka” tile layout. Bakhchisaray Palace Complex.
Fig. 1. “Tatarka” tile from the roof of the Biyuk Khan-Djami.
- " -
Fig. 7. Tiles manufactured by the Spanish company TEJAS BORJA in the guidebook of the Bakhchisaray Museum of History
and Culture (screenshot from a video by the “Krym.Realii” company).
Bakhchisaray
Fig. 5. Insignia on a “tatarka” tile from the old part of Bakhchisaray
Fig. 2. “Tatarka” tile from the roof of Biyuk Khan-Djami
Annex 1032
G. Verdirame, “The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals”, 49
International and Comparative Law Quarterly (2000)
Citation:
Guglielmo Verdirame, The Genocide Definition in the
Jurisprudence of the Ad Hoc Tribunals, 49 Int'l & Comp.
L.Q. 578 (2000)
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AD HOC TRIBUNALS
GUGLIELMO VERDIRAME*
1. THE definition' indubitable
Rwanda.3 determinative
by 4 * University of Nottingham.
1. CONF.183/9 (adopted in I.Draft Code of Crimes Against Peace and Security adopted by "Redefining Kuper, I.I.I-95-10). THE GENOCIDE DEFINITION IN THE JURISPRUDENCE
OF THE VERDIRAME
I. INTRODUCTION
THE permanence of the genocide definition1 over more than five decades
is remarkable considering how much criticism has been directed against it
since the adoption of the Genocide Convention in 1948.2 The existence of
a stable internationally agreed definition of genocide presents indubitable
advantages, particularly if compared with the lasting uncertainties
in the definition of other international crimes, such as crimes against
humanity. However, the genocide definition is also characterised by a
number of problematic aspects and unresolved interpretative questions,
some of which have been addressed in the decisions of the ad hoc
Tribunals for the Former Yugoslavia and for Rwanda.' Divergent
approaches to the mens rea requirement, to the definition of the four
protected groups against whom genocide can be committed, or to the
identification of acts that constitute genocide had been confined to an
exclusively academic ambit until not long ago, but can now be determinative
of an acquittal or conviction. With the exception of one decision the
ICTY,4 all other judgments on genocide have come from the ICTR, in
whose custody are some of the most prominent members of the interim
University of Nottingham.
The definition was first contained in GA Res. 260 (III), which adopted the
Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277
[hereinafter Genocide Convention]. It has been confirmed in other international law
instruments since then, most notably the Statutes of the two ad hoc Tribunals, infra n.3, and
the Statute of the International Criminal Court, UN Doc. A/CONF.183/9 17 Jul.
1998), (1998) 37 l.L.M. 1999 [hereinafter ICC Statute]. The only exception is the 1954
of Mankind, the International
Law Commission, which opted for a non-exhaustive enumeration of genocidal acts. The
1991 and the 1996 Draft Codes have reverted to the Convention definition.
2. For example, see Chalk, Genocide", and "Theoretical Issues
Relating to Genocide: Uses and Abuses", in G. J. Andreopoulos (Ed), Genocide:
Conceptual and Historical Dimensions (1997).
3. The crime of genocide is part of the subject matter jurisdiction of both the Rwandan
and the Yugoslavia Tribunals. Art. 2, International Tribunal for Rwanda, SC Res. 827, 25
May 1993, (1993) 32 l.L.M. 1203 [hereinafter ICTR]; Art. 4, International Tribunal for the
Former Yugoslavia, SC Res. 995, 8 Nov. 1994, (1994) 33 1.L.M. 1602 [hereinafter ICTY].
4. Prosecutor v. Jelisic (ICTY-1--95-10). The ICTY has, however, considered aspects of
genocide law in a number of important decisions under Rule 61, and in decisions confirming
indictments.
578
The Definition of Genocide
government and of the militias accused of having organised and carried
out the 1994 Rwandan genocide.5
In examining the application of the genocide definition by the two
Tribunals, this article focuses on the development of a purposeful
approach to the definition. This tendency has been signalled, for example,
by the recognition that rape and sexual violence can amount to genocide
in the Akayesu case,6 and by a more innovative approach to collective
identities and membership of the four protected groups in the ICTR
decisions Ruzindanda and Kayishema and Rutaganda, and in the Jelisic
case decided by the ICTY.7
The first section of this article discusses the Convention definition and
outlines some of the theoretical problems underlying it. In the following
section, the mental element and its application by the two Tribunals is
analysed. Thirdly, the article considers a thorny issue, which has perhaps
received unduly scant attention to date: the determination of the
membership of the four protected groups (national, ethnical,8 racial or
religious). It is argued that the approach based on the idea that
membership of these collective groups is a "social fact" has progressively
been superseded by a better approach, which recognises that membership
of these groups is a "social construct" and that the perceptions of the
victims and of the alleged perpetrators must be taken into account. The
article concludes by examining the recognition of particular acts, such as
ethnic cleansing and systematic rape, as amounting to genocide in the
jurisprudence of the two Tribunals.
tt. THE DEFINITION OF GENOCIDE
ART. II of the Genocide Convention 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:
5. The Prime Minister at the time of the genocide, Jean Kambanda, and the Deputy
Head of the interahamwe, Georges Rutaganda, have already been convicted of genocide by
the ICTR. No less than 14 ministers and high-ranking civil servants, together with many
military commanders and militia leaders, are still awaiting trial. Some trials of prominent
"genocidaires" have taken place in Rwanda; at the time of writing, the trial of the former
Minister of Justice, Agnes Ntamabyaliro, accused of being one of the organisers of the
genocide, has commenced in Kigali. On the Rwandan genocide, see African Rights, Death,
Despair and Defiance (1995, 2nd ed.), and Human Rights Watch/F~d6ration Internationale
des Ligues des Droits de l'Homme, Leave None to Tell the Story (1999).
6. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, in part reported at (1998) 37 I.L.M.
1399.
7. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, available on the
ICTR web-site www.ictr.org.
8. The term "ethnical", instead of ethnic, is used in the Genocide Convention, probably
the result of a solecism that has featured in the legal definition of genocide since then.
JJUULLYY 2200000]0] The Definition of Genocide 579
government and of the militias accused of having organised and carried
out the 1994 Rwandan genocide.5
In examining the application of the genocide definition by the two
Tribunals, this article focuses on the development of a purposeful
approach to the definition. This tendency has been signalled, for example,
by the recognition that rape and sexual violence can amount to genocide
in the Akayesu case," and by a more innovative approach to collective
identities and membership of the four protected groups in the ICTR
decisions Ruzindanda and Kayishema and Rutaganda, and in the Jelisic
case decided by the ICTY.7
The first section of this article discusses the Convention definition and
outlines some of the theoretical problems underlying it. In the following
section, the mental element and its application by the two Tribunals is
analysed. Thirdly, the article considers a thorny issue, which has perhaps
received unduly scant attention to date: the determination of the
membership of the four protected groups (national, ethnical,8 racial or
religious). It is argued that the approach based on the idea that
membership of these collective groups is a "social fact" has progressively
been superseded by a better approach, which recognises that membership
of these groups is a "social construct" and that the perceptions of the
victims and of the alleged perpetrators must be taken into account. The
article concludes by examining the recognition of particular acts, such as
ethnic cleansing and systematic rape, as amounting to genocide in the
jurisprudence of the two Tribunals.
II. THE DEFINITION OF GENOCIDE
ART. II of the Genocide Convention 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:
5. The Prime Minister at the time of the genocide, Jean Kambanda, and the Deputy
Head of the interahamwe, Georges Rutaganda, have already been convicted of genocide by
the ICTR. No less than 14 ministers and high-ranking civil servants, together with many
military commanders and militia leaders, are still awaiting trial. Some trials of prominent
"genocidaires" have taken place in Rwanda; at the time of writing, the trial of the former
Minister of Justice, Agnes Ntamabyaliro, accused of being one of the organisers of the
genocide, has commenced in Kigali. On the Rwandan genocide, see African Rights, Death,
Despair and Defiance (1995, 2nd ed.), and Human Rights Watch/F~d~ration Internationale
des Ligues des Droits de !'Homme, Leave None to Tell the Story (1999).
6. Prosecutor v. Akayesu, Case No. ICTR--96-4-T, in part reported at (1998) 37 I.L.M.
1399.
7. Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, available on the
ICTR web-site www.ictr.org.
8. The term "ethnical", instead of ethnic, is used in the Genocide Convention, probably
the result of a solecism that has featured in the legal definition of genocide since then.
580 International and Comparative Law Quarterly VOL. 49
bodily physical (e) Forcibly transferring children of the group to another group.
This definition represented the minimum common a very broad consensus was reached in the noteworthy that, in spite in the Convention-in to Art. no United States is the country declaration to Art. 11. The most aspect the infliction of serious mental amount to an act of Were a similar for mental faculties ICTR. " impairment
it." this conclusions will be endorsed by the members of the Assembly 1) ... ethnical,
racial, It in whole or in substantial acts in Article 11.
That the term 'mental harm' in It 10. v. ICTR-96-3-50: ICTR-96-13-1, a of for all women and sexual are can result in a women 580 International and Comparative Law Quarterly [VoL. 49
(a) Killing members of the group;
(b) Causing serious bodily harm 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;
Forcibly This definition represented the minimum common denominator on which
a very broad consensus was reached in the aftermath of World War II. It is
noteworthy that, in spite of the numerous reservations made to other
provisions in the Convention-in particular to Art. IX which establishes
the jurisdiction of the ICJ-no reservations were made to Art. II. The
United States is the only country to have attached an interpretative
declaration to Art. II." The most problematic aspect of the US declaration
is the requirement that the impairment of mental faculties as a result of
the infliction of serious mental harm (Art. II, b) be permanent, for it to
amount to an act of genocide. Were a similar approach applied to torture,
for example, the infliction of mental suffering could be considered to
constitute torture only if it had led to the permanent impairment of the
mental faculties of the victim. This approach appears inopportune, and
has been correctly rejected by the ICTR." Indeed, whether the impairment
is permanent or not often depends on the victim's reaction and
coping strategy. In addition, a criminal conduct should not be qualified
simply on the basis of the victim's psycho-social reaction to the trauma
engendered by it.11 The United States tried to propound the view
underlying this interpretative declaration in the preparatory commission
for the ICC on the elements of crime, but the Working Group, whose
conclusions will be endorsed by the members of the Assembly of State
9. It reads: "(1)... the phrase 'intent to destroy, in whole or in part, a national, ethnieal,
racial, or religious group as such' appearing in Article II means the specific intent to destroy,
in whole or in substantial part, a national, ethnical, racial or religious group as such by the
acts specified in Article II.
(2) That the term 'mental harm' in Article II (b) means permanent impairment of mental
faculties through drugs, torture or similar techniques".
10. Prosecutor v. Rutaganda, ICTR--96--3--T, at para.50: "The Chamber is of the opinion
that 'serious harm' need not entail permanent or irremediable harm". See also Prosecutor v.
Musema, ICTR--96-13-I, at para.156.
11. This is particularly so since rape and sexual violence can constitute genocide either as
"killing of members of the group" (Art. II, a) in those cases where the woman is killed, or as
a way of "causing serious bodily or mental harm to members of the group" (Art. II, b). While
for all women rape and sexual violence arc undoubtedly traumatising experiences, which
can result in a "permanent impairment of mental faculties", under the US declaration, those
women who have coped with the trauma of rape without developing a permanent mental
impairment would never be considered victims of an act of genocide.
The Definition of Genocide
Parties once the Statute enters into force, has preliminarily decided not to
include the US proposal in its first draft. 2
One of the most contentious aspects of the genocide definition is the
exclusion of political and social groups from the list of protected groups.
In its first resolution on genocide, the General Assembly had initially
opted for a broader definition based on the notion of "denial of the right
of existence of entire human groups". 13 But GA Res. 260 (III), which
adopted the current text of the Genocide Convention, took into account
the concerns of States about the inclusion of political and social groups.
As pointed out by Chalk, the exclusion of political and social groups from
the protection of the Genocide Convention has important consequences,
in particular it means
ignoring the 15 to 20 million Soviet civilians liquidated as "class enemies"
and "enemies of the people" between 1920 and 1939; (...) neglecting the
roughly 300,000 mentally impaired and mentally ill Germans and others
murdered by the Nazis as "life unworthy of life"; (...) overlooking the
thousands of homosexuals killed by the Nazis because of their sexual
orientation; (...) disregarding the million or more Khmer murdered by the
state and the Communist party of Kampuchea in the years from 1975 and
1978.'4
Although these massacres cannot be subsumed under the Genocide
Convention, they remain acts prohibited under other international
norms. Some authors have, in fact, questioned the importance normally
attributed to the exclusion of political and social groups from the
Genocide Convention, arguing that human rights and humanitarian law
provide adequate ancillary protection.1 5 For others, however, the failure
to protect political and social groups constitutes the "Genocide Convention's
blind spot", but one that is obviated by the emergence of a jus
cogens prohibition of genocide "broader than the Convention's prohibition".
6 While this latter view may have some theoretical validity, the
jurisdiction of the ad hoc Tribunals and of the International Criminal
Court is limited to the Convention-based definition of genocide. As a
result, the international machinery for preventing and for punishing
12. Art. 9 of the ICC Statute states that "elements of crime shall assist the Court in the
interpretation and application of Articles 6,7, and 8", which deal respectively with genocide,
crimes against humanity and war crimes.
13. GA Res. 96 (I). This formulation was very close to the one theorised by the French
jurist Lemkin in the 1930s and 1940s (Axis Rule in Occupied Europe (1944)).
14. Chalk, supra n.2 at 50. The list could continue with the extermination of hundreds of
thousands of Communist militants in Indonesia, and the political massacres in Maoist China.
15. Rend Beres, "Genocide and Genocide-Like Crimes", in S. Bassiouni, International
Criminal Law, Vol. I, International Crimes, at 271.
16. van Schaack, "The Crime of Political Genocide: Repairing the Genocide Convention's
Blind Spot", (1997) 106 The Yale Law Journal 2261-2262.
JJUULLYY 22000000]] The Definition of Genocide 581
Parties once the Statute enters into force, has preliminarily decided not to
include the US proposal in its first draft.12
One of the most contentious aspects of the genocide definition is the
exclusion of political and social groups from the list of protected groups.
In its first resolution on genocide, the General Assembly had initially
opted for a broader definition based on the notion of "denial of the right
of existence of entire human groups.' But GA Res. 260 (ID), which
adopted the current text of the Genocide Convention, took into account
the concerns of States about the inclusion of political and social groups.
As pointed out by Chalk, the exclusion of political and social groups from
the protection of the Genocide Convention has important consequences,
in particular it means
ignoring the 15 to 20 million Soviet civilians liquidated as "class enemies"
and "enemies of the people" between 1920 and 1939; ( ... ) neglecting the
roughly 300,000 mentally impaired and mentally ill Germans and others
murdered by the Nazis as "life unworthy of life"; ( ... ) overlooking the
thousands of homosexuals killed by the Nazis because of their sexual
orientation; (...) disregarding the million or more Khmer murdered by the
state and the Communist party of Kampuchea in the years from 1975 and
1978.14
Although these massacres cannot be subsumed under the Genocide
Convention, they remain acts prohibited under other international
norms. Some authors have, in fact, questioned the importance normally
attributed to the exclusion of political and social groups from the
Genocide Convention, arguing that human rights and humanitarian law
provide adequate ancillary protection.' For others, however, the failure
to protect political and social groups constitutes the "Genocide Convention's
blind spot", but one that is obviated by the emergence of a jus
cogens prohibition of genocide "broader than the Convention's prohibition"."
While this latter view may have some theoretical validity, the
jurisdiction of the ad hoc Tribunals and of the International Criminal
Court is limited to the Convention-based definition of genocide. As a
result, the international machinery for preventing and for punishing
12. Art. 9 of the ICC Statute states that "elements of crime shall assist the Court in the
interpretation and application of Articles 6, 7, and8, which deal respectively with genocide,
crimes against humanity and war crimes.
13. GA Res. 96 (I). This formulation was very close to the one theorised by the French
. jurist Lemkin in the 1930s and 1940s (Axis Rule in Occupied Europe (1944)).
14. Chalk, supra n.2 at 50. The list could continue with the extermination of hundreds of
thousands of Communist militants in Indonesia, and the political massacres in Maoist China.
15. Rene Beres, "Genocide and Genocide-Like Crimes", in S. Bassiouni, International
Criminal Law, Vol. I, International Crimes, at 271.
16. van Schaack, "The Crime of Political Genocide: Repairing the Genocide Convention's
Bind Spot", (1997) 106 The Yale Law Journal 2261-2262.
in cannot enforce prohibition.
The effectiveness has been the the ability of the State-centred to act a
crime that in almost all situations "is committed or with
condonation or 7 Hurst the failure of States to bring cases to the International Court of Justice
"relating to the and fulfilment of the ...
Convention, including those to the of genocide" under Art. IX.' 9 To the Bosnia case cases the Federal of ten countries in alia based on Art. IX of the Convention, and the case against the Federal Republic of Yugoslavia." In spite of these developments,
the commission Convention
a affected State, the in 2'
of Art. IX should not be underestimated, doubts on the dispute settlement mechanism under the Convention cannot be 17. 18. In [1996]
C.J. 20. Yugoslavia France, Germany, 1999] 38 I.The are a common interest, i.e. "the [1951] C.J. See erga omnes Barcelona [C.J.
582 International and Comparative Law Quarterly
[[VVoOiL. . 4499
genocide currently in place cannot enforce the putatively broader jus
cogens prohibition.
The effectiveness of the Convention regime for preventing and
punishing genocide has been the object of critical analysis. Leo Kuper
questioned the ability of the State-centred UN system to act against a
crime that in almost all situations "is committed by governments or with
governments' condonation or complicity". 17 Hurst Hannum condemned
the failure of States to bring cases to the International Court of Justice
(ICJ) "relating to the interpretation, application and fulfilment of the ...
Convention, including those relating to the responsibility of a State for
genocide (Art. IX)." In this respect, Bosnia's application against
Yugoslavia in 1993 has signalled the belated beginning of inter-State
litigation under Art. IX." To the Bosnia case one now needs to add the
cases brought by the Federal Republic of Yugoslavia (FRY) against the
ten NATO countries in the course of the Kosovo war, which were inter
alia based on Art. IX of the Convention, and the case brought by Croatia
against the Federal Republic of Yugoslavia." In spite of these developments,
Hannum's remarks still retain some validity: in the cases now
pending before the ICJ, the applicant State is the State directly affected
by the alleged commission of genocidal acts. There is to date no example
of "altruistic" inter-State litigation brought under the Genocide Convention
by a non-directly affected State, reflecting the erga omnes nature of
the obligations in the Convention.21
While the importance of this litigation originating from the "discovery"
of Art. IX should not be underestimated, doubts on the effectiveness of
the dispute settlement mechanism under the Convention cannot be easily
17. Kuper, supra n.2 at 36.
18. In particular, Hannum remarked that in the case of the Cambodian genocide "the
failure of any state thus far to institute proceedings before the Court is an indefensible
abdication of international responsibility" ("International Law and Cambodian Genocide:
The Sounds of Silence", (1989) 11 Human Rights Quarterly 82 at 84).
19. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]) (Merits) (1996)
I.CJ. Rep. 595.
20. Legality of the Use of Force (Federal Republic of Yugoslavia v. Belgium, Canada,
France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom, United States)
(Request for Interim Measures) [1999) 381.L.M. 950; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Croatia v. Yugoslavia) (Proceedings
instituted on 2 July 1999) www.icj-cij.org.
21. The ICJ has emphasised that the obligations deriving from the Genocide Convention
arc non-contractual and that the Convention is not characterised by competing interests but
by a common interest, i.e. "the accomplishment of those high purposes which are the raison
d'etre of this Convention", based on moral and humanitarian principles ( Reservations to the
Convention on Genocide (1951) I.CJ. Rep. 15). Sec also the well-known dictum of the ICJ
on the erga omnes nature of obligations outlawing genocide in the Barcelona Traction case
(Barcelona Traction, Light and Power Co. ·Case (Belgium v. Spain) (Merits) (1970] I.CJ.
Rep. 3, at paras33-34).
The Definition of Genocide
dismissed. First, many States have made reservations to Art. IX excluding
the jurisdiction of the ICJ. For example, had a State brought a case against
Rwanda during the 1994 genocide, the ICJ would have had no basis for
jurisdiction because of a Rwandan reservation to Art. IX.
Secondly, in terms of the effectiveness of prevention, notwithstanding
the Court's ever bolder use of interim measures," it is hardly conceivable
that a government that is committing or condoning a genocide would
comply with the interim measures of the ICJ. Ultimately, the question of
an effective prevention of genocide cannot be separated from that of the
legality of humanitarian intervention, and/or of the availability in these
situations of the system of collective peace-enforcement under Chapter
VII. Indeed, in the course of a genocide, the use of force-either by an
individual State or group of States, or by the Security Council using its
Chapter VII powers-is often the only method that can effectively stop or
limit the commission of genocidal acts.
Finally, with regard to the effectiveness of the dispute settlement
system of the Convention for punishing-rather than preventinggenocide,
it must be observed that the determination of the responsibility
of States by the Court would not only be belated in most cases, but also
inappropriate if the government responsible for the genocide has been
replaced by a new one. For example, in the case of the two most horrific
genocides of the last two decades, Cambodia and Rwanda, the "genocidal"
authorities remained in power respectively for three years and for
four months-less than a judgment of the ICJ on the merits would have
presumably taken. The case of the Federal Republic of Yugoslavia
appears different, as the authorities accused by Bosnia-Herzegovina and
by Croatia of committing acts of genocide are still in power. Furthermore,
in this case the genocide was allegedly perpetrated in the territory of
another State. The determination of the responsibility of the FRY may
thus have legal consequences on the plane of State responsibility,
regardless of the political vicissitudes in this country.
The issues covered by the ICJ judgments on the merits of these cases
may to some extent overlap with issues already addressed by the ad hoc
Tribunals. But, as far as individual criminal responsibility is concerned,
the case-law of the ad hoc Tribunals is destined to remain unique at least
until the International Criminal Court becomes operative. On questions
on which the res judicata of the ICJ and of the ad hoc Tribunals in part
coincides, the risk of legal or factual findings that are in contradiction with
each other cannot be completely ruled out; it is a risk typical of an era
22. See, for example, Case Concerning the Vienna Convention on Consular Relations
(Germany v. USA) (Order of 3 Mar. 1999), in which the Court adopted interim measures
inaudita altera parte.
JJUULLYY 220000001] The Definition of Genocide 583
dismissed. First, many States have made reservations to Art. IX excluding
the jurisdiction of the ICJ. For example, had a State brought a case against
Rwanda during the 1994 genocide, the ICJ would have had no basis for
jurisdiction because of a Rwandan reservation to Art. IX.
Secondly, in terms of the effectiveness of prevention, notwithstanding
the Court's ever bolder use of interim measures,22 it is hardly conceivable
that a government that is committing or condoning a genocide would
comply with the interim measures of the ICJ. Ultimately, the question of
an effective prevention of genocide cannot be separated from that of the
legality of humanitarian intervention, and/or of the availability in these
situations of the system of collective peace-enforcement under Chapter
VII. Indeed, in the course of a genocide, the use of force-either by an
individual State or group of States, or by the Security Council using its
Chapter VII powers-is often the only method that can effectively stop or
limit the commission of genocidal acts.
Finally, with regard to the effectiveness of the dispute settlement
system of the Convention for punishing-rather than preventinggenocide,
it must be observed that the determination of the responsibility
of States by the Court would not only be belated in most cases, but also
inappropriate if the government responsible for the genocide has been
replaced by a new one. For example, in the case of the two most horrific
genocides of the last two decades, Cambodia and Rwanda, the "genocidal"
authorities remained in power respectively for three years and for
four months-less than a judgment of the ICJ on the merits would have
presumably taken. The case of the Federal Republic of Yugoslavia
appears different, as the authorities accused by Bosnia-Herzegovina and
by Croatia of committing acts of genocide are still in power. Furthermore,
in this case the genocide was allegedly perpetrated in the territory of
another State. The determination of the responsibility of the FRY may
thus have legal consequences on the plane of State responsibility,
regardless of the political vicissitudes in this country.
The issues covered by the ICJ judgments on the merits of these cases
may to some extent overlap with issues already addressed by the ad hoc
Tribunals. But, as far as individual criminal responsibility is concerned,
the case-law of the ad hoc Tribunals is destined to remain unique at least
until the International Criminal Court becomes operative. On questions
on which the res judicata of the ICJ and of the ad hoc Tribunals in part
coincides, the risk of legal or factual findings that are in contradiction with
each other cannot be completely ruled out; it is a risk typical of an era
22. See, for example, Case Concerning the Vienna Convention on Consular Relations
(Germany v. USA) (Order of 3 Mar. 1999), in which the Court adopted interim measures
inaudita alter parte.
584 International and Comparative Law Quarterly [VOL. 49
characterised by the proliferation of international judicial and semijudicial
bodies.
III. THE MENTAL ELEMENT
In all likelihood, the decisions on the merits in the ICJ cases brought
under the Genocide Convention will involve some consideration of
intent, albeit not for the purposes of determining individual criminal
responsibility, but in order to ascertain whether a State has breached its
obligations under the Convention. In its order of 2 June 1999 on the
FRY's request for interim measures, the ICJ gave an indication of how it
may proceed on the merits in these cases. The Court made a kind of prima
facie factual finding, noting that it did not appear that the NATO
"bombings entail an element of intent, towards a group as such". 23 From
the point of view of criminal law, it probably makes little sense to
determine whether a certain conduct has been characterised by a
particular intent without considering whose intent is to be determined. In
fact, intent being the subjective element of crime,24 it can only in principle
be determined in relation to the mens rea of an individual. However,
having to establish, for example, whether genocide was committed in
Bosnia by the FRY, the ICJ need to ascertain whether the actions of
certain groups were characterised by an intent to destroy, in whole or in
part, a particular group, and whether such actions are imputable to the
FRY. 5
The ad hoc Tribunals have clarified some of the issues pertaining to
intent, in particular the quantum and the proof of intent. In A kayesu, the
Trial Chamber of the ICTR pointed out that "intent is a mental which is difficult, even to determine", a
confession of the accused, intent can only be "inferred from a certain
23. See, for example, Legality of the Use of Force (FRY v. UK), supra n.20, at para. 35, and
Legality of the Use of Force (FRY v. France), supra n.20, at para.27. However, in its the Bosnia Genocide Application case, the ICJ had not reached a prima facie factual
determination in the same terms with respect to the question whether the acts of (Serbia and Montenegro) in Bosnia were characterised by intent to destroy a group. But, the Court acknowledged the existence of a grave risk that acts of been committed and emphasised that "Yugoslavia and Bosnia-Herzegovina, whether or not
any such acts in the past may be legally imputable to them, are under a clear obligation to all in their power to prevent the commission of any such acts in the future" (the Convention on the Prevention and Punishment of the Crime of Genocide Bosnia and
Herzegovina v. Yugoslavia [Serbia and Montenegro]) (Order) [I.C.J. Rep. 3, para.45).
24. In the words of the IC1'Y in the Jelisic case, intent is the "616ment moral de
l'infraction" (Prosecutor v. Jelisic, supra n.4, para.62).
25. In the Legality of the Use of Force cases, since it is the actions not of paramilitary
groups but of States that are at stake, the ICJ will mainly have to determine NATO bombings constituted a genocidal act. A problem of imputability could arise only
with regard to those NATO countries that did not campaign, but limited themselves to lending political support to it as members alliance.
584 International and Comparative Law Quarterly [VoL. 49
characterised by the proliferation of international judicial and semijudicial
bodies.
Ill. THE MENTAL ELEMENT
In all likelihood, the decisions on the merits in the ICJ cases brought
under the Genocide Convention will involve some consideration of
intent, albeit not for the purposes of determining individual criminal
responsibility, but in order to ascertain whether a State has breached its
obligations under the Convention. In its order of 2 June 1999 on the
FRY's request for interim measures, the ICJ gave an indication of how it
may proceed on the merits in these cases. The Court made a kind of prima
facie factual finding, noting that it did not appear that the NATO
"bombings entail an element of intent, towards a group as such".23 From
the point of view of criminal law, it probably makes little sense to
determine whether a certain conduct has been characterised by a
particular intent without considering whose intent is to be determined. In
fact, intent being the subjective element of crime,24 it can only in principle
be determined in relation to the mens rea of an individual. However,
having to establish, for example, whether genocide was committed in
Bosnia by the FRY, the ICJ need to ascertain whether the actions of
certain groups were characterised by an intent to destroy, in whole or in
part, a particular group, and whether such actions are imputable to the
FRY.3
The ad hoc Tribunals have clarified some of the issues pertaining to
intent, in particular the quantum and the proof of intent. In Akayesu, the
Trial Chamber of the ICTR pointed out that "intent is a mental factor
which is difficult, even impossible, to determine", adding that, failing a
confession of the accused, intent can only be "inferred from a certain
23. See, for example, Legality of the Use of Force (FRYv. UK),supra n.20, at para. 35, and
Legality of the Use of Force (FRY v. France), supra n.20, at para.27. However, in its order in
the Bosnia Genocide Application case, the ICJ had not reached a prima facie factual
determination in the same terms with respect to the question whether the acts of Yugoslavia
(Serbia and Montenegro) in Bosnia were characterised by intent to destroy a particular
group. But, the Court acknowledged the existence of a grave risk that acts of genocide had
been committed and emphasised that "Yugoslavia and Bosnia-Herzegovina, whether or not
any such acts in the past may be legally imputable to them, are under a clear obligation to do
all in their power to prevent the commission of any such acts in the future" (Application of
the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and
Herzegovina v. Yugoslavia [Serbia and Montenegro}) (Order) (1993] I.CJ. Rep. 3, para.45).
24. In the words of the ICTY in the Jelisic case, intent is the "~l~ment moral de
!'infraction" (Prosecutor v. Jelisic, supra n.4, para.62).
25. In the Legality of the Use of Force cases, since it is the actions not of paramilitary
groups but of States that are at stake, the ICJ will mainly have to determine whether the
NATO bombings constituted a genocidal act. A problem of imputability could arise only
with regard to those NATO countries that did not directly participate in the military
campaign, but limited themselves to lending political support to it as members of the
alliance.
26 27 excluding
projects preparing the ground for the massacres. 2
perpetrators".,,29
A kayesu, that that group", ° genocide",3 Taba most cases resulting in the killing of the victims. 3 2
(...) premeditation"." in Akayesu,
injury 523.
Radovan Karadjic (Rule Decision), R61; 18-R61.
524.
(Ibid., 675).
infra JJUULLYY 22000000]] The Definition of Genocide
585
number of presumptions of fact".26 In part relying on the Rule 61
decisions of the ICTY on Karadjic and Mladic,27 the Trial Chamber in
Akayesu considered as circumstances that can be indicative of a genocidal
intent: the scale and the general nature of the atrocities; the fact of
deliberately or systematically targeting victims of a group, while excluding
the members of other groups; the general political doctrine of the
perpetrators of the crime; the repetition of discriminatory and destructive
acts; speeches or massacres.28
Applying these considerations to the facts of the case, the Trial Chamber
found that it was possible to infer Akayesu's genocidal intention "inter
alia, from all acts and utterances of the accused, or from the general
context in which other culpable acts were perpetrated systematically
against the same group, regardless of whether such other acts were
committed by the same perpetrator or even by other perpetrators".29
The context in which the alleged genocidal conduct is said to have
taken place is of great significance. In Akayesu, the Chamber had already
determined "in absolute terms"-that is not in respect of the criminal
responsibility of any individual-that "genocide was, indeed, committed
in Rwanda in 1994 against the Tutsi as a group"," as the massacres aimed
to destroy this particular group. As far as Akayesu's own intent, to be
determined separately from the "collective intent" to destroy the Tutsi
group that unequivocally characterised the massacres in Rwanda, the
Chamber found that Akayesu had made speeches "calling, more or less
explicitly, for the commission of genocide"," and that the systematic rape
of women in Taha commune, over which he had presided, had targeted
Tutsi women, in killing of the victims.32
In Kayishema and Ruzindana, the ICTR specified that "the mens rea
must be formed prior to the commission of genocidal acts", although this
does not mean that "the individual acts themselves ( ... ) require
premeditation" .33 To the factors indicative of intent identified inAkayesu,
the Trial Chamber in Kayishema and Ruzindana added the number of
victims from the group, the use of derogatory language towards members
of the targeted group, the weapons employed and the extent of the bodily
that had been inflicted, the methodical way of planning, and the
26. Akayesu, supra n.6, at para.523.
27. 61 IT-95-5-R61; Ratko Mladic (Rule 61
Decision), IT-95-18-R61.
28. Akayesu., supra n.6, at paras523-524.
29. Ibid., at para.728.
30. Ibid., at. para.126.
31. Ibid., at para.729. On the basis of this, Akayesu was also convicted of direct and public
incitement to commit genocide (/bid., at paras672-675).
32. See Section V Ethnic Cleansing and Sexual Violence as Acts of Genocide.
33. Kayishema and Ruzindana, supra n.7, at para.91.
VOL. killing.34 full details of the genocidal plan or policy.3 5
C16ment considered
First, he was a level".36 genocidal intent.37 Combined with a series of utterances 38
conduct".3 Tutsis"4
prefecture "filth or dirt". In the Complex, the Chamber 586 International and Comparative Law Quarterly [VoL. 49
systematic manner of killing." However, it is not necessary for the
individual to know the plan or policy."
As far as Cl~ment Kayishema was concerned, two facts were considered
particularly indicative of his intent. First, he was a pr~fet during
the genocide, a circumstance of great importance since the "national plan
to commit genocide was implemented at prefecture level." The Chamber
was also persuaded that Mr Kayishema had executed this plan in the
prefecture of Kibuye with efficiency and zeal. Secondly, the sheer
numbers of "Tutsis killed in the massacres, for which Kayishema is
responsible, either individually or as a superior" revealed, in the view of
the Court, his intent." of utterances38
and a persistent pattern of conduct, the two elements above persuaded
the Chamber beyond any reasonable doubt that Kayishema had intended
to destroy the Tutsi as a group.
The other accused in Kayishema and Ruzindana, Obed Ruzindana, was
a businessman, who, in the view of the Tribunal, "displayed his intent to
rid the area of Tutsis by his words and deeds and through his persistent
pattern of conduct" Ruzindana's actions were particularly ruthless. The
Chamber found that, after transporting Hutu extremists to sites where
Tutsis had been gathered, Ruzindana "offered payment in exchange for
the severed heads of well known Tutsis or identification cards of
massacred Tutsis"."
In the Jelisic case, the ICTY considered for the first time the criminal
responsibility of an individual accused inter alia of genocide in the context
34. Ibid., para.93.
35. Ibid., para.94.
36. Ibid., para.528.
37. Ibid., para.531. The Trial Chamber found that around 8,000 people were killed in an
area in Kibuye town known as the Complex (the Catholic Church and Home St. Jean
Complex); between 8,000 and 27,000 were killed in the Stadium; and 4 to 5,500 were
massacred in Mubuga Church. In addition, in the area of Bisesero, in the same of
Kibuye, other massacres took place and "evidence suggests that the number of those who
perished was well into the tens of thousands" (Ibid., para.531).
38. There were numerous testimonies that reported hearing Kayishema refer to Tutsis as
found out that he used a megaphone in the
Complex to read out a message from Kigali encouraging the extermination of the Tutsis
(Ibid., para.539).
39. Ibid., para.541.
40. Ibid., para.544. Obed Ruzindana was sentenced to 25 years of imprisonment, a lenient
penalty according to the Rwandan government that vehemently protested against it. The
reasoning of the Chamber on the sentencing does, indeed, give rise to some doubts,
particularly in the light of the horrific acts of which Ruzindana was found guilty. The
Chamber found that Kayishema deserved more punishment than Ruzindana (Ibid.,
para.26), since the former had been found guilty of four counts of genocide while Ruzindana
had been convicted of "only" one count. The Chamber stressed Ruzindanda's "relative
young age and the goal of rehabilitation in his case" (he was 32 in 1994!). In a sense, having
been tried together with Kayishema may have helped Ruzindana's case by making his
actions look "less horrific" in comparison with those of Kayishema.
genocide.4 fully".4 2 one, the Chamber specified "genocidal selective targeting only group
such".43
destroy Although principle guilty genocide
As stated by the Chamber, "it will be very difficult in practice to prove
genocidal character and alleged supported system".4 Luka.45 unequivocally pointed to his genocidal intent. The picture emerging the testimonies in judges-"an
essentially the basis of a "casual selection", and, on a couple of occasions, inexplicably, Jelisic even conceded a laissez-passer to detainees, including,
pursue partial 46
Adolf", JJUULLYY 22000000]] The Definition of Genocide
587
of the events in the former Yugoslavia. Jelisic was acquitted of the charge
of genocide on the grounds that the Prosecutor had failed to prove
Jelisic's genocidal intent beyond any reasonable doubt. Goran Jelisic had
pleaded guilty to all counts, except 41 The Trial Chamber found
that Jelisic was "not only perfectly aware of the discriminatory nature of
the operation [against the civilian population in Brcko], but that he
adhered to it 42 Before considering whether Jelisic's intention
actually surpassed a discriminatory intent and amounted to a genocidal
that intent can take two forms":
on the one hand, the intent to exterminate a very large number of
members of the group, and, on the other, the intent to pursue a more
destruction certain members of the "because of the impact their disappearance would have on the survival of
the group as such",
The Chamber's conclusion that the existence of a plan to the
Muslim group in Brcko had not been proven by the Prosecutor beyond
any reasonable doubt complicated the proof of Jelisic's intent a great
deal. in an individual may be found of even if no genocidal plan existed, this is an extremely unlikely scenario.
intent of an individual if his actions do not have a massive
if the criminal conduct was not by an
organisation or 44 Numerous testimonies relayed accounts of
Jelisic's brutalities when, in May 1992, he commanded the camp of
45 However, the Chamber did not find that these testimonies
from
revealed-in the view of the three Trial an
disturbed personality". In addition, Jelisic chose his victims on
rather
including,
once, a prominent Muslim leader. The Chamber thus concluded that
"Jelisic's actions did not reveal a firm will to the or total
destruction of a group as such".46
41. The other charged offences were violations of the laws and customs of war (Art. 3,
Statute of the ICTY) and crimes against humanity (Art. 5, Statute of the ICTY).
Throughout May 1992 Goran Jelisic acted as commander of Luka camp, where Serb forces
confined large numbers of Croats and Muslims who had been for the most part expelled
from their homes in the town of Brcko.
42. Jesilic, supra n.4, at para.75 ( original text of the judgment is in French).
43. Ibid., at para.82.
44. Ibid., at para.101 ( and 99-100).
45. In particular, he referred to himself as "Serb Adolf', and reportedly said that he could
not drink his coffee in the morning unless he had executed between 20 and 30 detainees. He
informed detainees in Luka that the vast majority of them (70% according to one testimony,
90% according to another) would be killed. (Ibid., paras.102-108).
46. Ibid., para.107.
VOL. types group is of great importance. The intent to discriminate against, or even
persecute group pursuit physical application of the dolus in genocide has been crystallised by the
the existence genocidal plan genocide given situation are considered. Secondly, the Tribunals examine the
genocidal The identity of the victims is a fundamental element of the crime of
genocide. As mentioned earlier, the systematic extermination of even
tens of thousands on political grounds does not amount to genocide under
the Genocide Convention, to genocide if the perpetrators' intent destroy groups proven. In essence, there are two ways of determining who is a member of
group. objective applied. group can be decided on the basis of subjective identification, either by
the victims themselves or by the perpetrators of the crime. This
having only importance. example, the case of the Holocaust, if objective criteria of membership and identity
were applied, it would be concluded that a genocide was perpetrated only
to the extent that the victims were "really" Jewish. In other words,
persons they perceived Nazis-and were considered Jewish under the Nuremberg laws-would
not be considered victims of a genocide, but, presumably, of a crime
against humanity and/or of a war crime.
groups are nearly always disputed. For example, the question of who is a
Jew is notoriously controversial. The halachic rules on matrilineal descent
and on conversions have been contested at least since the 18th century by
various streams of Conservative, Reformed or Progressive Judaism. The
halacha itself accommodates diverse positions. In the view of at least one
person imputed identity should be entitled to a Jewish burial, and thus become a member
of the group, although posthumously, on the basis of the identification by
his/her murderer. Ethnicity in Rwanda presents at least a similar degree
588 International and Comparative Law Quarterly [VoL. 49
This distinction between different of "hostile" intents against a
to a cannot be considered identical to the intentional
of its annihilation. In addition, a method for the judicial
do/us specialis ad hoc Tribunals. First, contextual elements are assessed. In particular,
of a and the commission of a in a
intent of the individual, which is distinct but yet connected to
the "collective" genocidal intent underlying the plan.
IV. DETERMINING THE MEMBERSHIP OF "NATIONAL, ETHNICAL,
RACIAL OR RELIGIOUS GROUPS"
47 while the extermination of fewer can amount
to one of the four is
a First, criteria can be Second, membership of a
distinction is far from theoretical For in
who were killed because were to be Jewish by the
and would
One problem with objective criteria is that rules on the membership of
author, Maimonides, a killed because of his or her Jewish
47. The argument has been made that the definition of genocide under customary
international law is actually broader than the one based on the Genocide Convention. See
supra n.16. It is an argument that has not been echoed in the jurisprudence of the ad hoc
Tribunals.
The Definition of Genocide
of complexity, although western observers have often failed to perceive
such complexity, or have made the too common mistake of forcing an
European reading of identities in the Rwandan context.48
The groundbreaking case-law of the Rwanda and Yugoslav Tribunal
on these questions shows a progressive shift from the objective position to
one which is predominantly based on subjective criteria of membership,
i.e. identification by others or self-identification. Initially, the Rwanda
Tribunal was reluctant to adhere to the subjective positions, not least
because of the existence of precedents4 9 in which both the Permanent
Court of International Justice and the International Court of Justice had
opted for objective criteria. In addition, reluctance to determine membership
of a group on the basis of subjective criteria can also derive from
criminal law. In fact, mistakes of fact can often be determinative of the
qualification of the crime. For example, in most legal systems, Oedipus'
killing of his father, Laios, would be qualified as murder, and not as
parricide, since Oedipus did not know that the "old man in the chariot",
which had pushed him out of the paved way at a cross-roads, was actually
his father.5 0 In the context of the Rwandan genocide, the rape and killing
of a woman believed to be a Tutsi on the basis of her physical
appearance-while she was in "reality" of mixed origin with a Hutu
father and a Tutsi mother 5 1-would be considered a crime against
humanity and not a genocidal act, if this approach is taken.
The Minorities in Upper Silesia case illustrates the approach based on
objective criteria. Germany sought a declaration from the Permanent
Court establishing "the unfettered liberty of an individual to declare
according to his own conscience and on his own personal responsibility
that he himself does or does not belong to a racial, linguistic or religious
48. The colonial period was a time when Hutu, Tutsi and Twa identities went through a
radical process of transformation, visions of Tutsi superiority were instilled and perceptions
were racialised (G. Prunier, The Rwanda Crisis: History of a Genocide 1959-1994 23-41
(1995)).
49. Rights of Minorities in Upper Silesia (Germany v. Poland), P.C.I.J. Rep. Series A, No.
12; Nottebohm (Liechtenstein v. Guatemala) (Merits) [1955] I.C.J. Rep. 4.
50. Sophocles, Oedipus Rex at lines 800-809. Oedipus may have acted in self-defence
because Laios apparently attacked him after he had hit the driver of the chariot.
51. Patrilineal descent normally determines identity in Rwanda. But "transitions" from
one group to the other were common in pre-colonial Rwanda, especially from the Hutu
group to the Tutsi one through the contract of ubuhake. Under this contract "a Tutsi patron
gave a cow to his Hutu client. Since the Hutu were in theory not allowed to have cattle (...),
it was not only an 'economic' gift, but also a form of upward social mobility. For the cow
could reproduce, and the future calves would be shared (... ). This could be the beginning of
an upward social climb where, once endowed with cattle, the Hutu lineage would become
'tutsified"' (Prunier, supra n.48 at 13-14). See also Verdirame, "Ethnicity, Conflict and
Constitutional Change in Rwanda and Burundi", in Gardner and others (Eds), Creation and
Amendment of Constitutional Norms (forthcoming in 2000).
There were also cases of Tutsis who became Hutus. Two notable examples are Froudald
Karamira and Robert Kajuga, who became leading Hutu extremists, the latter heading the
interahamwe.
JJUULLY 22000000]] The Definition of Genocide 589
of complexity, although western observers have often failed to perceive
such complexity, or have made the too common mistake of forcing an
European reading of identities in the Rwandan context.48
The groundbreaking case-law of the Rwanda and Yugoslav Tribunal
on these questions shows a progressive shift from the objective position to
one which is predominantly based on subjective criteria of membership,
i.e. identification by others or self-identification. Initially, the Rwanda
Tribunal was reluctant to adhere to the subjective positions, not least
because of the existence of precedents" in which both the Permanent
Court of International Justice and the International Court of Justice had
opted for objective criteria. In addition, reluctance to determine membership
of a group on the basis of subjective criteria can also derive from
criminal law. In fact, mistakes of fact can often be determinative of the
qualification of the crime. For example, in most legal systems, Oedipus'
killing of his father, Laios, would be qualified as murder, and not as
parricide, since Oedipus did not know that the "old man in the chariot",
which had pushed him out of the paved way at a cross-roads, was actually
his father." In the context of the Rwandan genocide, the rape and killing
of a woman believed to be a Tutsi on the basis of her physical
appearance-while she was in "reality" of mixed origin with a Hutu
father and a Tutsi mother51-would be considered a crime against
humanity and not a genocidal act, if this approach is taken.
The Minorities in Upper Silesia case illustrates the approach based on
objective criteria. Germany sought a declaration from the Permanent
Court establishing "the unfettered liberty of an individual to declare
according to his own conscience and on his own personal responsibility
that he himself does or does not belong to a racial, linguistic or religious
48. The colonial period was a time when Hutu, Tutsi and Twa identities went through a
radical process of transformation, visions of Tutsi superiority were instilled and perceptions
were racialised (G. Prunier, The Rwanda Crisis: History of a Genocide 1959-1994 23-41
(1995)).
49. Rights of Minorities in Upper Silesia (Germany v. Poland), P.C.I.J. Rep. Series A, No.
12; Nottebohm (Liechtenstein v. Guatemala) (Merits) [1955] L.C.J. Rep. 4.
50. Sophocles, Oedipus Rex at lines 800-809. Oedipus may have acted in self-defence
because Laios apparently attacked him after he had hit the driver of the chariot.
51. Patrilineal descent normally determines identity in Rwanda. But "transitions" from
one group lo the other were common in pre-colonial Rwanda, especially from the Hutu
group to the Tutsi one through the contract of ubuhake. Under this contract "a Tutsi patron
gave a cow to his Hutu client. Since the Hutu were in theory not allowed to have cattle( ... ),
it was not only an 'economic' gift, but also a form of upward social mobility. For the cow
could reproduce, and the future calves would be shared (...). This could be the beginning of
an upward social climb where, once endowed with cattle, the Hutu lineage would become
'tutsified' (Prunier, supra n.48 at 13-14). See also Verdirame, "Ethnicity, Conflict and
Constitutional Change in Rwanda and Burundi", in Gardner and others (Eds), Creation and
Amendment of Constitutional Norms (forthcoming in 2000).
There were also cases of Tutsis who became Hutus. Two notable examples are Froudald
Karamira and Robert Kajuga, who became leading Hutu extremists, the latter heading the
interahamwe.
590 International and Comparative Law VOL. minority". 52 Under the terms of the German-Polish Convention on
Upper Silesia, the protection of minorities in the region had to be secured
inter alia the establishment of schools language of the group. In 1926, the Polish Government decided to
investigate the authenticity of the applications for admissions to these
schools and declared the admission of over 7,000 children to these schools
to be null and void.-3 Before the Court, Germany argued, in part relying
on a provision of its treaty with Poland, that "the question whether a
person does or does not to such a minority (... of the intention of according to Poland this was "a question of fact and not one of
intention"."4
The Court thus held that membership of one of the protected
minorities was primarily a of fact. To a extent this case
hinged on the interpretation of the terms of the German-Polish Convention
and should not be as conclusive a norm of general international law favouring objective criteria for
establishing membership of groups. However, the fact that one in the German-Polish Convention supported the German thesis confirms
the predilection for criteria 5 subjective criteria, the Permanent Court stated that subjective elements
could still be taken into account, particularly since "what is to be
understood as a doubt". 6
Judge Nyholm, dissenting, aware of the intrinsic adopting deceptively objective criteria for what are ultimately social
constructs dependent on changing individual and societal He
warned that there definition of the idea of since ethnical divisions cannot be that "a definition must, for example, allow of an individual from a 52. Minorities 54. 55. Indeed, a racial, linguistic or not be verified or the authorities".
'[he Court this disadvantages ... and not as 34) declaration of the ("Quelle 6lve 590 International and Comparative Law Quarterly [VoL. 49
minority". Under the terms of the German-Polish Convention on
Upper Silesia, the protection of minorities in the region had to be secured
inter alia through the establishment of schools providing instruction in the
language of the group. In 1926, the Polish Government decided to
investigate the authenticity of the applications for admissions to these
schools and declared the admission of over 7,000 children to these schools
to be null and void." Before the Court, Germany argued, in part relying
on a provision of its treaty with Poland, that "the question whether a
person does or does not belong to such a minority( ... ) must be left to the
subjective expression of the intention of the persons concerned", while
according to Poland this was "a question of fact and not one of
intention".54
The Court thus held that membership of one of the protected
minorities was primarily a question of fact. To a large extent this case
hinged on the interpretation of the terms of the German-Polish Convention
and should not be regarded as conclusive evidence of the existence of
a norm of general international law favouring objective criteria for
establishing membership of groups. However, the fact that one provision
in the German-Polish Convention supported the German thesis confirms
the predilection for objective criteria in international law. In regard to
subjective criteria, the Permanent Court stated that subjective elements
could still be taken into account, particularly since "what is to be
understood as a person's tongue is not always clear and beyond doubt."
Judge Nyholm, dissenting, appeared aware of the intrinsic difficulties in
adopting deceptively objective criteria for what are ultimately social
constructs dependent on changing individual and societal perceptions. He
warned that there was "very little object in giving a rigid and objective
definition of the idea of 'minority' since the linguistic, religious and
ethnical divisions cannot be disentangled". Judge Nyholm also observed
that "a definition of minorities solely based on the subjective principle
must, for example, allow of an individual counting himself as one of a
minority from a religious point of view; on the other hand, it should not be
52. Minorities in Upper Silesia, supra n.49 at 5.
53. Ibid., at 10.
54. Ibid., at 32.
55. Indeed, Art. 74 stated that "the question whether a person does or does not belong to
a racial, linguistic or religious minority may not be verified or disputed by the authorities".
The Court interpreted this provision, almost against its literal meaning, as aimed solely at
"the avoidance of the disadvantages... which would arise from a verification or dispute",
and not as requiring "the substitution of a new principle for that which in the nature of things
and according to the provisions of the Minorities Treaty determines membership" (Ibid., at
34) [emphasis added]. According to the Court, such provisions as those formulating the
declaration of the person as "Which is the language of the pupil or child?" (Quelle est la
langue d'un ~l~ve ou enfant?") revealed that the Convention viewed membership of the
minority as a question of fact.
56. Ibid., at 40-41.
The Definition of Genocide
impossible for the same individual to consider himself as belonging to the
minority as regards schools but to the majority in other spheres ..
The ICJ considered similar issues in the Nottebohm case. Although this
dealt with the question of nationality rather than ethnic, religious or racial
identities, its conclusions may be valid for determining individual
membership of other groups too. In Nottebohm, the ICJ stated that
nationality is a legal bond having as its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties. It may be said to constitute the
juridical expression of the fact that the individual upon whom it is
conferred, either directly by the law or as a result of an act of the authorities,
is in fact more closely connected with the population of the State conferring
nationality than with that of any other State [emphasis added]. 8
National identity is thus considered a "social fact", of which the law is a
mere expression. The ICJ disregarded two elements that would appear to
be of greatest significance as far as national identity is concerned: the
self-perception of the individual, and the view of the concerned State. The
reason for disregarding these elements was essentially the belief that
there is something more "objective" than them: the existence of an
authentic and objectively verifiable link between the person and the
country of his or her nationality.
It is therefore not surprising that in Akayesu the Trial Chamber of the
ICTR referred to Nottebohm when grappling for the first time with the
definition of national group.59 In the end, the Chamber settled for that
57. Judge Nyholm's dissenting opinion took careful account of the socio-cultural context.
In particular, he observed that in Upper Silesia "the working class ordinarily and in domestic
life exclusively speaks" neither German nor Polish but a dialect, which is often "the sole
means of expression, to the exclusion of German and Polish, for children up to the time
when the latter begin their school studies". Judge Nyholm added that "a request for the
entry of a child for a minority school cannot be, generally speaking, considered as having as
its aim the denationalisation of a child in reality of Polish nationality. The aim may be
different, for example, that the parent, realising that the child will automatically learn
Polish, wishes for practical reasons to have him instructed in the German language
(Ibid., at 63-64 [diss. op. of Judge M. Nyholm]).
58. Nottebohm, supra n.49.
59. The question of belonging has arisen also in the context of cases on minority rights.
For example, in a communication to the Human Rights Committee, Sandra Lovelace, born
and registered as a Maliseet Indian, complained that the Canadian legislation that deprived
her of her status as a Maliseet Indian for "marrying out" violated her rights under the
International Covenant on Civil and Political Rights, in particular Arts. 2 and 26
(non-discrimination) and Art. 27 (rights of individuals belonging to minorities). The
Committee found that a violation of Art. 27 had occurred, and did not deem it necessary to
examine the issues that had been raised under other provisions in the Covenant. The
reasoning of the Committee combined subjective and objective criteria. The Committee
noted that "persons who are born and brought up on a reserve, who have kept ties with their
community and wish to maintain these ties must normally be considered as belonging to that
minority within the meaning of the Covenant" (Communication No. 24/1977, Sandra
Lovelace v. Canada, at paras. 14 and 17).
JJUULLYY 22000000]] The Definition of Genocide 591
impossible for the same individual to consider himself as belonging to the
minority as regards schools but to the majority in other spheres ... ".57
The ICJ considered similar issues in the Nottebohm case. Although this
dealt with the question of nationality rather than ethnic, religious or racial
identities, its conclusions may be valid for determining individual
membership of other groups too. In Nottebohm, the ICJ stated that
nationality is a legal bond having as its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties. It may be said to constitute the
juridical expression of the fact that the individual upon whom it is
conferred, either directly by the law or as a result of an act of the authorities,
is in fact more closely connected with the population of the State conferring
nationality than with that of any other State [emphasis added]."
National identity is thus considered a "social fact", of which the law is a
mere expression. The ICJ disregarded two elements that would appear to
be of greatest significance as far as national identity is concerned: the
self-perception of the individual, and the view of the concerned State. The
reason for disregarding these elements was essentially the belief that
there is something more "objective" than them: the existence of an
authentic and objectively verifiable link between the person and the
country of his or her nationality.
It is therefore not surprising that in Akayesu the Trial Chamber of the
ICTR referred to Nottebohm when grappling for the first time with the
definition of national group." In the end, the Chamber settled for that
57. Judge Nyholm's dissenting opinion took careful account of the socio-cultural context.
In particular, he observed that in Upper Silesia "the working class ordinarily and in domestic
life exclusively speaks" neither German nor Polish but a dialect, which is often "the sole
means of expression, to the exclusion of German and Polish, for children up to the time
when the latter begin their school studies". Judge Nyholm added that "a request for the
entry of a child for a minority school cannot be, generally speaking, considered as having as
its aim the denationalisation of a child in reality of Polish nationality. The aim may be
different, for example, that the parent, realising that the child will automatically learn
Polish, wishes for practical reasons to have him instructed in the German language ..."
(Ibid., at 63-64 [diss. op. of Judge M. Nyholm])).
58. Nottebohm, supra n.49.
59. The question of belonging has arisen also in the context of cases on minority rights.
For example, in a communication to the Human Rights Committee, Sandra Lovelace, born
and registered as a Maliseet Indian, complained that the Canadian legislation that deprived
her of her status as a Maliseet Indian for "marrying out" violated her rights under the
International Covenant on Civil and Political Rights, in particular Arts. 2 and 26
(non-discrimination) and Art. 27 (rights of individuals belonging to minorities). The
Committee found that a violation of Art. 27 had occurred, and did not deem it necessary to
examine the issues that had been raised under other provisions in the Covenant. The
reasoning of the Committee combined subjective and objective criteria. The Committee
noted that "persons who are born and brought up on a reserve, who have kept ties with their
community and wish to maintain these ties must normally be considered as belonging to that
minority within the meaning of the Covenant" (Communication No. 24/1977, Sandra
Lovelace v. Canada, at paras. 14 and 17).
592 VOL. duties".60 6
' membership
remaining protected groups. factors",62 63
any closely Akayesu's according the protection of any stable and permanent group".6
groups, the Chamber had no other alternative but to force an interpretation
Although the Akayesu approach has not been openly disowned in
subsequent "quiet" subjective approach particular ethnicity, by "imagined" identities 66 entirely dependent variable and contingent perceptions, and not social facts, which are
verifiable in the same manner as natural phenomena or physical facts.
66. International and Comparative Law Quarterly [VoL. 49
definition "as a collection of people who are perceived to share legal
bonds based on a common citizenship, coupled with reciprocity of rights
and duties"." On the ethnic group the Chamber pointed out that the
essential aspect was that its "members share a common language or
culture". 61 Akayesu also confirmed the objective approach to membership
for the two A racial group was thus
found to be "based on the hereditary physical traits often identified with a
geographical region, irrespective of linguistic, cultural, national or
religious factors" ,62 while a religious group was defined as one "whose
members share the same religion, denomination or mode of worship".63
In no case was reference made to subjective identification either in
the form of self-identification or identification by others.
However, it was clear to the Trial Chamber in Akayesu that Tutsis did
not match any of the four definitions. Indeed, although commonly
described as an ethnic group, Tutsis do not share a different language or,
arguably, a different culture: Kinyarwanda, a tonal Bantu language, is
spoken by both Hutus and Tutsis, and there is no difference in the
customary practices of the two groups. In order to classify the massacres
of 1994 and actions as genocidal, the Chamber thus resorted to
an improbable interpretation of the Genocide Convention. It argued that
"it is particularly important to respect the intention of the drafters of the
Genocide Convention, which to the travaux preparatoires was
patently to ensure stable and permanent group".
Constrained by its own restrictive definitions of the four protected
interpretation
of the Convention that seems remote from the text of Art. II and
from the intention of the drafters. In addition, the ideas of permanence
and stability may still be ill-suited to the Rwandan context, also
characterised by some social mobility.
65
cases, a shift towards the has
taken place. The Tribunals are, in other words, beginning to acknowledge
that collective identities, and in are their very
nature social constructs, identities66 on
60. Akayesu, supra n.6, at para.511.
61. Ibid., at para.513.
62. Ibid., at para.514.
63. Ibid., at para.515.
64. Ibid., at para.516.
65. See supra n.51.
B. Anderson, Imagined Communities (1983).
the to 67 However,
68 killed,69 Ruzindanda
unpunished.70 7'
possible, to attempt to define a national, ethnical or racial group today using
,members of a group', in this case an Akayesu) parasl3 37): "... S, I.JJUULLYY 22000000]] The Definition of Genocide
593
In Kayishema and Ruzindana the ICTR opened up the definition of at
least one of the four protected groups-the ethnic one-to a subjective
construction, signalling a departure from the line of international law
precedents that goes back to the Minorities in Upper Silesia case. An
ethnic group was thus defined not only as "one whose members share a
common language or culture", but also as "a group which distinguishes
itself, as such (self-identification); or, a group identified as such by others,
including perpetrators of the crimes (identification by others)".67 However,
in this case the Trial Chamber did not yet derive the necessary
consequences from this statement. Kayishema and Ruzindanda were
convicted of genocide, but acquitted of crimes against humanity because
the latter were, in the view of the Chamber, subsumed under the counts of
genocide.68 Since it had been established that not all the victims of
Kayishema and Ruzindanda were Tutsis and that Hutus were also
killed," the acquittal of Dr Clement Kayishema and Mr Obed Ruzindanda
of crimes against humanity leaves two options: either, the killing of
Hutus was implicitly considered to amount to genocide; or, the crimes
committed against Hutus were left unpunished." In Akayesu, the
approach had been different: Akayesu had been convicted of genocide
and of crimes against humanity, depending inter alia on the ethnicity of
the victims, since, as has been seen, the genocidal plan in Rwanda was
normally considered to have targeted only Tutsis as a group.71
In its only judgment on genocide so far, the ICTY, endorsing a
departure from the objective approach in the case of all protected groups
but the religious one, held that:
Although the objective determination of a religious group still remains
67. Kayishema and Ruzindana, supra n.7, para.98. See also para.291: "There is ample
evidence to find that the overwhelming majority of the victims of this tragedy were Tutsi
civilians which leaves this Chamber satisfied that the targets of the massacres were
'members of a group', ethnic group".
68. Kayishema and Ruzindanda, supra n.7, at para.578: "Considering the above and
based on the facts the Trial Chamber finds that it will be improper to convict the accused
persons for genocide as well as for crimes against humanity based on murder and
extermination because the later two offences are subsumed fully by the counts of genocide
as discussed in the Part of the Judgment entitled Cumulative Charges". This decision on
cumulative charges runs contrary to precedents both of the ICTR (Akayesw) and of the
ICTY (Tadic and Delalic cases, referred to in the dissenting opinion of Judge Khan in
Kayishema and Ruzindanda, at paras13 and 15).
69. For example at para.347 in regard to those killed at the Complex (supra n.37):... the
Trial Chamber finds that they were unarmed and predominantly Tutsi".
70. Mr Ruzindanda has been sentenced to 25 years of imprisonment. If the second
reading of the decision of the Chamber is correct, he could be subjected to another trial for
murder of Hutus without violating the double jeopardy principle.
71. This was the case in Akayesu, and in Prosecutor v. Kambanda, ICTR 97-23-S, in part
reported at (1998) 37 1.L.M. 1413.
perpetrators.72
The ICTR reinforced its timid dictum in Kayishema and Ruzindanda in
Rutaganda stating that:
context... membership
concept.73
From an initial rigid and objective approach to collective identities, the
It the crime is after all more important for establishing individual criminal
responsibility than the putative "authentic" ethnicity of the victim.
V. ETHNIC CLEANSING AND SEXUAL VIOLENCE AS ACTS OF GENOCIDE
"Cultural genocide" does not expressly feature under this definition, as
each of the five acts involves some type of physical 74 is only
if one of the four protected groups is denied its right to exist in the future
72. Jelisic, supra n.4, at para.70.
73. Prosecutor Rutaganda, supra para.55. Prosecutor Musema, supra Trial Chamber I of the ICrR reiterated that "membership of a group is, subjective rather than an objective concept", but added that "a subjective not sufficient to determine victim groups" and that the travaux preparatoires of the
Convention suggest that "certain groups, such as political and economic groups, have been
excluded from the protected groups because they are considered to be 'non stable' or
'mobile' groups which one joins through individual, voluntary commitment" (paras.161-
162). The Chamber thus recommended the adoption of a case-by-case approach.
74. There was some support for the inclusion of "cultural genocide" before the adoption
of the Convention (see Shaw, "Genocide and International Law", in Y. Dinstein,
International Law at a Time of Perplexity (1989) at 809).
594 International and Comparative Law Quarterly
[[VVOoLL.. 4499
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 out that group
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 perpetrators.'
The ICTR reinforced its timid dictum in Kayishema and Ruzindanda in
Rutaganda stating 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. .. for the purposes of applying the Genocide convention, membership
of a group is, in essence, a subjective rather than an objective concept."
From an initial rigid and objective approach to collective identities, the
two ad hoc Tribunals have thus progressively moved towards a subjective
position, quietly setting aside some important precedents. is a welcome
shift that takes into account the mutable and contingent nature of social
perceptions, and does not reinforce perilous claims to authenticity in the
field of ethnic and racial identities. The perception of the perpetrator of
the crime is after all more important for establishing individual criminal
responsibility than the putative "authentic" ethnicity of the victim.
The Convention definition enumerates five categories of genocidal acts.
"Cultural genocide" does not expressly feature under this definition, as
each of the five acts involves some type of physical destruction.74 It is only
if one of the four protected groups is denied its right to exist in the future
v. n.10, at In v. n.10,
ICTR in essence, a
definition alone is
arc 'mobile' groups which one joins through individual, 161162).
sec
The Definition of Genocide
by means of the forcible transfer of children to another group75 that some
protection is accorded to the cultural identity of the group and to its right
to continued cultural existence, under the system of the Genocide
Convention.
The hitherto most interesting aspect of the jurisprudence of the ad hoc
Tribunals on genocidal acts is the recognition that ethnic cleansing and
sexual violence can amount to genocide. The Security Council had
already emphasised that investigating ethnic cleansing ought to be an
important part of the Tribunal's work in its resolution establishing the
Tribunal.76 The Trial Chamber specified that in the Yugoslav context "the
policy of ethnic cleansing took the form of discriminatory acts of extreme
seriousness which tend to show its genocidal character"." The same Trial
Chamber also noted, in the cases of Radovan Karadzic and Ratko Mladic,
that "the uniform methods used in committing the said crimes, their
pattern, their pervasiveness throughout all of Bosnian Serb-held territory,
the movement of prisoners between various camps, and the tenor of
some of the accused's statements are strong indications" of the possible
genocidal nature of these crimes.7"
The above statements on ethnic cleansing feature only in decisions of
the ICTY taken under Rule 61 proceedings.79 As has been seen, in the
only genocide case so far decided by the ICTY, the accused has been
acquitted of genocide on grounds of lack of sufficient intent and the
Chamber did not need to consider the qualification of the imputed acts as
genocidal. In future judgments, it will be interesting to see how the
Tribunal will pronounce on the relationship between ethnic cleansing and
genocide.
A landmark aspect of the Akayesu decision is the recognition that
sexual violence and rape can amount to genocide in some circumstances.
The Chamber emphasised that rape and sexual violence "constitute
genocide in the same way as any other act as long as they were committed
with the specific intent" that characterises the crime of genocide. 0 The
genocide definition already encompasses the infliction of serious bodily
or mental harm on the victims and the Chamber applied this to the reality
of systematic sexual violence, which "resulted in the physical and
75. Art. 11, (e), Genocide Convention.
76. SC Res. 827 (1993).
77. Prosecutor v. Nikolic (Rule 61), Case IT-94-2-R61.
78. Prosecutor v. Karadjic (Rule 61), Case IT-95-5-R61; Prosecutor v. Mladic (Rule 61),
Case IT 95-18-R61.
79. When an arrest warrant is not executed within a "reasonable time", the judge who
confirmed the original indictment invites the Prosecutor to report on any progress made, or
lack thereof. Then, if the confirming judge finds that all necessary steps have been taken,
s/he will order the Prosecutor to submit the case to a Trial Chamber where a rule 61 hearing
will take place. This hearing is not a trial, and does not result in a verdict.
80. Prosecutor v. Akayesu, supra n.6, at para.731.
JJUULLY 2200000]0] The Definition of Genocide 595
by means of the forcible transfer of children to another group75 that some
protection is accorded to the cultural identity of the group and to its right
to continued cultural existence, under the system of the Genocide
Convention.
The hitherto most interesting aspect of the jurisprudence of the ad hoc
Tribunals on genocidal acts is the recognition that ethnic cleansing and
sexual violence can amount to genocide. The Security Council had
already emphasised that investigating ethnic cleansing ought to be an
important part of the Tribunal's work in its resolution establishing the
Tribunal.76 The Trial Chamber specified that in the Yugoslav context "the
policy of ethnic cleansing took the form of discriminatory acts of extreme
seriousness which tend to show its genocidal character".77 The same Trial
Chamber also noted, in the cases of Rado van Karadzic and Ra tko Mladic,
that "the uniform methods used in committing the said crimes, their
pattern, their pervasiveness throughout all of Bosnian Serb-held territory,
the movement of prisoners between various camps, and the tenor of
some of the accused's statements are strong indications" of the possible
genocidal nature of these crimes.78
The above statements on ethnic cleansing feature only in decisions of
the ICTY taken under Rule 61 proceedings.79 As has been seen, in the
only genocide case so far decided by the ICTY, the accused has been
acquitted of genocide on grounds of lack of sufficient intent and the
Chamber did not need to consider the qualification of the imputed acts as
genocidal. In future judgments, it will be interesting to see how the
Tribunal will pronounce on the relationship between ethnic cleansing and
genocide.
A landmark aspect of the Akayesu decision is the recognition that
sexual violence and rape can amount to genocide in some circumstances.
The Chamber emphasised that rape and sexual violence "constitute
genocide in the same way as any other act as long as they were committed
with the specific intent" that characterises the crime of genocide." The
genocide definition already encompasses the infliction of serious bodily
or mental harm on the victims and the Chamber applied this to the reality
of systematic sexual violence, which "resulted in the physical and
75. Art. II, (e), Genocide Convention.
76. SC Res. 827 (1993).
77. Prosecutor v. Nikolic (Rule 61), Case IT-94--2-R61.
78. Prosecutor v. Karadjic (Rule 61), Case IT-95--5--R6l; Prosecutor v. Mladic (Rule 61),
Case IT 95--18-R61.
79. When an arrest warrant is not executed within a "reasonable time", the judge who
confirmed the original indictment invites the Prosecutor to report on any progress made, or
lack thereof. Then, if the confirming judge finds that all necessary steps have been taken,
s/he will order the Prosecutor to submit the case to a Trial Chamber where a rule 61 hearing
will take place. This hearing is not a trial, and docs not result in a verdict.
80. Prosecutor v. Akayesu, supra n.6, at para.731.
International and Comparative Law Quarterly
j systematically
82 This
"rape, enforced prostitution and other forms counts of
Taba.83 Taba, commission.,
See Family Affairs ICTR, ICTR/Aug. 1999). Nyiaramasuhuko 596 International and Comparative Law Quarterly [[VVOoLL.. 4499
psychological destruction of Tutsi women, their families and their
communities"." The ICTR observed that "the victims were systematically
and deliberately selected because they belonged to the Tutsi
group, with persons belonging to the other group being excluded". This
element, together with the factual finding that a genocide was perpetrated
in Rwanda as well as around Taba commune where Akayesu was
bourgmestre, proved, in the view of the Chamber, that these rapes were
characterised by the specific intent to destroy, in whole or in part, the
Tutsi group. While rape and sexual violence expressly featured in the
Statute of the ICTR as a crime against humanity (Art. 3, g) or a violation
of Common Art. 3 and Protocol II of the Geneva Convention (Art. 4, e,
"rape, enforced prostitution of indecent assault"), in
Akayesu, the ICTR established that certain rapes are genocidal in their
nature, the determining factor being the presence of the dolus specialis
that characterises the crime of genocide.
It is noteworthy that rape had not been included in the original
indictment against Akayesu. In June 1997, largely because of the interest
of Judge Pillay, the only woman serving as a judge in the Trial Chambers
of the ICTR, the indictment was amended to include three counts of
sexual violence. The testimony of witness J, whose six year old daughter
had been raped, had paved the way to the amendment of the indictment,
and to a series of shocking factual findings on the sexual violence
perpetrated in the municipal offices of Taba." The criminal responsibility
of Akayesu was not excluded, in the view of the Court, by the fact that he
had not been the material author of the rapes. Indeed, first, as mayor of
Taha, Akayesu could have prevented the rapes that were systematically
perpetrated in the bureau communal. Secondly, Akayesu actively
abetted, aided, ordered and encouraged their commission."
81. Ibid., at 731
82. Ibid., at 730. Sec also para.731: "The Chamber is satisfied that the acts of rape and
sexual violence described above were committed solely against Tutsi women, many of
whom were subjected to the worst public humiliation, mutilated, and raped several times,
often in public, in the Bureau Communal premises or in other public places, and often by
more than one assailant. These rapes resulted in physical and psychological destruction of
Tutsi women, their families and communities. Sexual violence was an integral part of the
process of destruction, specifically targeting Tutsi women and specifically contributing to
their destruction and to the destruction of the Tutsi group as a whole."
83. Ibid., at paras401-448.
84. The ICTR has amended the indictment of the Rwandan Minister for Women and
at the time of the genocide, Pauline Nyiaramasuhuko, to include six
additional charges, "one of which accuses her of being responsible for rape 'as part of a
widespread and systematic attack against a civilian population on political, ethnic and racial
grounds' in Butare, central Rwanda" (Press Release of the lCTR, ICl'R/INFO 9-2-196, 11
Pauline was not the material author of the sexual violence,
but, according to the accusations, she planned and ordered the systematic sexual violence of
Tutsi women, together with her son, Chalome Ntahobali, himself in the custody of the
Tribunal.
the
Chamber that
The United Nations Convention Against Torture framework of state-sanctioned violence. The Tribunal finds approach
more useful in the context of international law. rape purposes punishment, rape violation personal dignity, inflicted by or at the instigation of or with the consent or acquiescence of a
The Tribunal defines rape committed person Tribunal considers sexual violence, which includes rape, as any act of a
sexual are human body and may include acts which do not involve penetration physical contact."
such and torture,. by Prosecutor v. supra n.6, at 688.
JJUULLYY 22000000]] The Definition of Genocide
597
In Akayesu, the Trial Chamber took a sensible approach to the
definition of rape. Drawing a parallel with the torture definition, the
Chamber opined that
and Other Cruel,
Inhuman and Degrading Treatment or Punishment does not catalogue
specific acts in its definition of torture, focusing rather on the conceptual
this Like torture, is used for
such as intimidation, degradation, humiliation, discrimination,
control or destruction of a person. Like torture, is a
of and rape in fact constitutes torture when it is
public official or other person acting in an official capacity.
as a physical invasion of a sexual nature,
on a under circumstances which are coercive. The
nature which is committed on a person under circumstances which
coercive. Sexual violence is not limited to physical invasion of the
or even
contact.85
These legal findings will probably remain as a lasting contribution of the
Akayesu judgment to the development of international law on sexual
violence. The Chamber wisely considered that the brutality of the rapist,
not unlike that of the torturer, can find an almost infinite variety of
physical acts through which to manifest itself. It thus refused to engage in
futile lengthy discussions on the particular physical acts-such as the
hackneyed question of whether penetration is an essential requirement of
rape or not-and opted for a definition of rape along the lines of the
torture definition.
In Rutaganda, the Trial Chamber has attempted to systematise some of
the findings on genocidal acts contained in the previous case-law of the
ICTR. While reiterating that the term "killing" under Art. II, a includes
both intentional and unintentional killing, the Chamber stated that "the
words 'serious bodily or mental harm' [Art. II, b] include acts of bodily or
mental torture, inhumane or degrading treatment, rape, sexual violence,
and persecution". As for the deliberate infliction on the group of
conditions of life calculated to bring about its destruction in whole or in
part (Art. II, c), the Chamber opined that they "are to be construed 'as
methods of destruction which the perpetrator does not necessarily
intend to immediately kill the 'members of the group', but which are,
ultimately, aimed at their physical destruction"; as examples of this
practice, the subjection of a group to a subsistence diet, the systematic
85. Prosecutor v. Akayesu, supra n.6, at paras687-688.
group" 86
87 53.
subsequent practice subsequent agreements participate in the drafting process (see of the International
of preparatoires interpreting which some of the State parties had only acceded). Finally, technically
598 International and Comparative Law Quarterly
[[VVOoLL.. 4499
expulsion from their homes and the deprivation of essential medical
supplies below a minimum vital standard were given. "Sexual mutilation,
enforced sterilization, forced birth control, forced separation of males
and females, and prohibition of marriages" are, on the other hand,
examples of measures "intended to prevent births within the group" (Art.
II, d). Finally, Art. II, e of the Convention on the forcible transfer of
children from one group to another is meant to sanction "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"."
VI. CONCLUSION
The contribution of the ad hoc Tribunals to the development of genocide
law is remarkable, and, in some respects, groundbreaking. The adoption
of a subjective approach to the definition of the four protected groups, far
from undermining the Convention, breathes new life into it and ensures a
healthy interplay between the norms and the socio-cultural context in
which they are applied. Akayesu aside, the Tribunals have resisted the
tendency to resolve such a complex and crucial issue by obstinately
referring to nothing but the intention of the drafters. The more innovative
approach that has been chosen was demanded by the very subject matter,
and is consistent with the rules on the interpretation of treaties.87 As far as
the other aspects of the genocide definition (intent, genocidal acts) is
concerned, important clarifications have been made on the quantum and
on the proof of intent, while the five genocidal acts enumerated at Art. 2
have been fleshed out, most notably through the recognition of the
genocidal nature of sexual violence in some circumstances. On other
indirectly related issues, which have been only touched upon in this
article, most importantly the question of cumulative charges, conflicting
indications have sometimes emerged, although it would appear that the
Kayishema and Ruzindana ruling on this point seems destined to remain
isolated in the jurisprudence both of the ICTR and of the ICTY.
86. Prosecutor v. Rutaganda, supra n.10, at paras49-53.
87. Art. 31, 3, Vienna Convention on the Law of Treaties 1969, on the basis of which
and between the parties have to be taken into
account. In addition, most of the State parties to the Genocide Convention did not
sec Territorial Jurisdiction Commission the River Oder, PCIJ Rep. Series A, No. 23, in which the Permanent Court of
International Justice did not consider the travaux for a treaty to
the Tribunals are applying a provision in a resolution of the Security Council and not the Convention directly.
Annex 1033
Askold Krushelnycky, Ukraine: Crimea's Tatars -- Clearing The Way For Islamic Extremism?,
RFE/RL (26 August 2004)
Ukraine: Crimea's Tatars -- Clearing The Way For Islamic Extremism? (Part 4)
https://www.rferl.org/a/1054513.html[5/3/2018 10:27:06 PM]
UKRAINE
Ukraine: Crimea's Tatars -- Clearing The Way For Islamic
Extremism? (Part 4)
August 26, 2004 15:50 GMT
Askold Krushelnycky
y • RadioFreeEurope
, Radioliberty
Ukraine: Crimea's Tatars -- Clearing The Way For Islamic Extremism? (Part 4)
https://www.rferl.org/a/1054513.html[5/3/2018 10:27:06 PM]
Share
Crimean Tatars traditionally practice a moderate form of Islam. But there are
fears that ethnic tensions between Tatars and Russians in Crimea could provide
fertile ground for fundamentalism to take root. RFE/RL looks at how the Crimean
Tatars have tried to stop that from happening.
Sinferopol, Ukraine; 26 August 2004 (RFE/RL) -- The Crimean Tatars' main mosque on the
peninsula is right in the heart of the old part of the Crimean capital, Simferopol.
It is the poorest section of the city. The houses are dilapidated and most of the area does not
have a proper sewage system. Cars drive warily through streets riddled with potholes. Above the
noise, the call to Friday prayer rings out through loudspeakers on the mosque's minaret.
In centuries past, when the peninsula was ruled by a Crimean Tatar khan loosely allied with the
Turkish sultan, there were 21,000 mosques. After the Russian empire invaded and annexed
Crimea in the 18th century, the number of mosques began to decline. By 1944 -- the year Stalin
ordered the deportation of all Crimean Tatars to Central Asia -- the number of mosques had
dropped to just 1,700.
Since then, under the influence of first the Soviet Union and then post-Soviet Ukraine, many of
those remaining buildings have also been destroyed, or converted for other purposes, such as
storage depots. Adzi Ablaev says only about 160 mosques are now functioning and many of
those are in poor condition.
Since Ukrainian independence in 1991, around 260,000 survivors of the deportation and their
descendants have returned from exile, mostly in Uzbekistan. The Ukrainian government
pledged the returnees land, financial help and the return of cultural sites such as mosques. But
local authorities, many of whom are ethnic Russians, have been slow to deliver on the promises.
Many ethnic Russians and their political leaders openly resent the return of the Tatars and
accuse them of wanting more than their fair share. They also accuse the Tatars of seeking to
eventually form an independent Islamic Crimean state. Brawls between Russian and Tatar
youths are frequent. There have been tense standoffs between crowds of Tatar protesters and
police. Earlier this year police opened fire above the heads of one such crowd.
••••••
Ukraine: Crimea's Tatars -- Clearing The Way For Islamic Extremism? (Part 4)
https://www.rferl.org/a/1054513.html[5/3/2018 10:27:06 PM]
Most of the Tatar men are officially unemployed. Among the younger men, there is a
smoldering anger that has often been barely controlled by their elders.
Many of the ingredients here seem dangerously similar to the volatile cocktail of frustration and
prejudice that turned into violence and civil war in former Yugoslavia or the Middle East.
And Muslim missionaries preaching a stricter form of Islam than the more liberal version
traditionally practiced by Crimean Tatars have been visiting Crimea in the hope of winning
converts. The missionaries, usually from rich Arab states such as Saudi Arabia, have ragged full
beards and their wives and daughters are covered and veiled from head to toe. It is a distinct
contrast to the Western look of most Crimean Tatar men and women.
Mustafa Dzhemilev heads the largest Crimean Tatar organization, the Mejlis. He said Crimean
Tatar Islam is similar to the moderate brand practiced in Turkey where there is a separation
between religion and the secular state. But he said that stricter forms, notably the Wahabbism
of Saudi Arabia, is being preached by missionaries from the Middle East who have plenty of
money to build mosques and set up religious education establishments.
Dzhemilev said such efforts have had only limited success in convincing Tatars to convert to a
stricter form of Islam which, among other things, teaches adherence to Koranic law.
"Concerning radical Islamic organizations, there have certainly been people appearing here who
we would not call radicals, but who we would say are practicing a form of Islam that is not
traditional for Crimean Tatars," he said.
A few years ago, around 30 small Tatar settlements that had received financial aid from
Wahabbis accepted clergymen preaching the more radical form of Islam. Dzhemilev said the
Mejlis was able to persuade many of the settlements to return to a more moderate form of
Islam. But he warns that the longer young Crimean Tatars feel frustrated by their poverty, the
more attractive radical Islam -- and possibly extremist violence -- will look.
"Brochures of a provocative nature have appeared which say things like Muslims don't have to
obey laws if the head of the state is not a Muslim. So what does that mean? That I should not
obey Ukrainian law? That is provocation designed to spark a conflict. Fortunately, we are able
to keep such things under control for the moment," Dzhemilev said.
Mufti Emirali Adzi Ablaev, Crimea's senior Muslim clergyman, also said the Wahabbis have
failed to make a significant impact in Crimea. He said he is confident that more extremist
strains of Islam will not take root on the peninsula. "It [Wahabbism] was artificial. Our nation,
our ancestors never had those trends, those sects and they won't have them now," he said. "I'm
Ukraine: Crimea's Tatars -- Clearing The Way For Islamic Extremism? (Part 4)
https://www.rferl.org/a/1054513.html[5/3/2018 10:27:06 PM]
100 percent certain that they will not take hold here. And if they do exist here, then we have the
state and law-enforcement bodies whose task is to take care of such things. But in our system,
among our people, such ideologies and ideas have never been present and never will be. That's
why I'm not worried."
He said that the only effect the Wahabbis had was to cause temporary splits among Muslims in
Crimea, and he blamed that for causing divisions in the broader Muslim world.
The mufti said Crimean Tatars have opened nine madrasahs, or religious schools, on the
peninsula and their curriculum is open to inspection by the authorities to show there is no
radical content.
(This is Part 4 of a five-part series. See also:
Crimea's Tatars -- A Return To A Homeland Burdened By Ethnic Divisions (Part 1)
Crimea's Tatars -- For Russian Settlers, Resentment And Anger (Part 2)
Crimea's Tatars -- Mustafa Dzhemilev: Hero, Leader, Statesman (Part 3)
Crimea's Tatars -- Uneasy Relations With Russian Cossacks (Part 5))
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Annex 1034
RFE/RL, Crimean Tatars Demand Their Rights Be Respected (10 December 2012)
6/1/2018 Crimean Tatars Demand Their Rights Be Respected
https://www.rferl.org/a/crimean-tatars-demand-their-rights-be-respected/24794511.html 1/1
Radio Free Europe/Radio Liberty © 2018 RFE/RL, Inc. All Rights Reserved.
UKRAINE
Crimean Tatars Demand Their Rights Be Respected
December 10, 2012 14:56 GMT
RFE/RL's Ukrainian Service
SIMFEROPOL, Ukraine -- Some 2,000 Crimean Tatars have gathered in Simferopol, the
capital of Ukraine's Autonomous Republic of Crimea, to demand that their rights be
"revived."
In a rally, timed to coincide with international Human Rights Day, participants called on
Ukrainian authorities to support the idea of organizing an international forum in 2013 on
the "revival of Crimean Tatars' rights" in Ukraine.
The Crimean Tatars' National Congress (Mejlis) proposed the idea in 2010 and it has been
supported by member states of the Organization for Security and Cooperation in Europe
(OSCE).
Soviet dictator Josef Stalin ordered the mass deportation of 180,000 Crimean Tatars from
Crimea to Central Asia and Siberia in 1944.
Crimean Tatars were rehabilitated by the Kremlin in 1957.
The majority of returnees say they still have no proper housing since coming back to
Crimea, mainly in the late 1980s and 1990s.
! - RadiofreeEurope
RadioLiberty
Annex 1035
RFE/RL, Activists on Wheels: Ukraine's Embattled Automaidan Protesters (24 January 2014)
Activists On Wheels: Ukraine's Embattled Automaidan Protesters
https://www.rferl.org/a/ukraine-activists-automaidan/25241507.html[5/22/2018 5:04:18 PM]
UKRAINE
Activists On Wheels: Ukraine's Embattled Automaidan
Protesters
January 24, 2014 15:39 GMT
Iryna Stelmakh Claire Bigg
Dmytro Bulatov has been missing since January 22
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KYIV -- Friends and relatives of Dmytro Bulatov are increasingly worried.
The Ukrainian antigovernment activist disappeared without a trace on January 23 -- the day
after another opposition sympathizer, scientist Yuriy Verbytsky, was found dead with traces
of torture in a forest near Kyiv.
Bulatov is the spokesman for Automaidan, a group of motorists founded in late November to
support Ukraine's European integration and counter police assaults against pro-EU
demonstrators in their two-month standoff with authorities.
The popularity of its rallies-on-wheels and the rapid-response network it has set up to rescue
demonstrators from police have propelled the group to the forefront of the protests.
Abducted And Left To Die
Its activists routinely meet with opposition leaders, address protesters on Kyiv's Independence
Square, and have held talks with U.S. and European envoys.
And the authorities appear to have woken up to the threat posed by Automaidan and its 5,000
activists.
No Large Convoys
A controversial new law that effectively prohibits large rallies now bars motorists from traveling
in convoys of more than five vehicles.
And in the night that followed Bulatov's disappearance, riot police launched four separate raids
on Automaidan, beating and detaining more than 20 of its activists as they patrolled the streets
of Kyiv in their vehicles.
A video recorded by one of the activists' dashboard cameras shows police officers smashing the
car's windows with their truncheons. The passengers are then heard screaming and calling on
the officers to end the violence.
Olesya Mamchich, the wife of one of the detained activists, told RFE/RL that "they were
dragged out of their cars. There were two women who were eventually released. But the men
were beaten up. He said the officers kicked their heads and arms."
Mamchich says her husband and his friends were ambushed by police after receiving a fake call
for help.
Ukraine's Interior Ministry, in turn, accuses the activists of chasing police officers before
smashing their vehicles with baseball bats.
Police spokesman Sergiy Burlakov told RFE/RL: "Some of them, 18 people, were detained in
connection with the incident on Krypostny street, where they were blocking Berkut vans and
assaulted police officers."
Middle-Class Professionals
Although footage of the incident contradicts these claims, the activists were charged with
I
Activists On Wheels: Ukraine's Embattled Automaidan Protesters
https://www.rferl.org/a/ukraine-activists-automaidan/25241507.html[5/22/2018 5:04:18 PM]
hooliganism and resisting arrest. They face up to six years in prison if convicted.
Automaidan's founder is Oleksiy Hrytsenko, a local IT company manager who is also the son of
opposition politician Anatoliy Hrytsenko.
He told RFE/RL in written comments that authorities are cracking down on Automaidan
because it "succeeded in making them nervous."
Hrytsenko has stopped giving telephone interviews,
saying his calls are monitored.
He says his group is popular because it represents the
backbone of Ukrainian society -- middle-class
professionals with a car and a desire to live in what he
calls "a normal country."
About one-third of its activists are women, including
journalist Tetyana Chornovol, who was pulled out of
her car by unidentified men last month and viciously beaten up.
Automaidan members have reported numerous cases of intimidation, threats, and assaults.
Hrytsenko says he is being stalked and has received threatening text messages on his phone. On
several occasions, his father received anonymous SMS messages informing him that his son was
dead.
Another Automaidan leader, Sergiy Khadzhinov, was abducted while blocking a road to prevent
riot police from reaching the Euromaidan protests on Kyiv's Independence Square.
He was seized by a group of men who pulled a bag over his head and pushed him into a car.
His abductors turned out to be officers from Ukraine's crime-busting police unit who took him
to a police station and questioned him for several hours before releasing him unharmed.
His computer, mobile phone, documents, the key to his flat, and 2,000 hryvnia ($230) were
however confiscated and never returned.
Bulatov, too, had received threats.
A father of three, he had been sent toys smeared with zelyonka, the green antiseptic solution
widely used to treat child injuries in former Soviet countries.
But like his fellow Automaidan activists, he had pledged not to cave in to pressure.
He told "Ukrainska Pravda" in an article published on the day he went missing that "Even if
something happens to me, resentment will only grow. And if it helps get us closer to victory,
then let it be."
Iryna Stelmakh reported from Kyiv. Claire Bigg reported and wrote from Prague
Claire Bigg
Claire Bigg covers Russia, Ukraine, and the post-Soviet world, with a focus
on human rights, civil society, and social issues.
UT AIDA
KYIV
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BROWSE
Annex 1036
Roland Oliphant, Vigilante Units to Defend Crimea City Against ‘Fascist’ Threat from Kiev, The
Telegraph (25 February 2014)
d w t er
l! , ·A •,· +; ,, • i ,
. .
• ' 4 i r. -· i Ga - \ I ,. , ' !- - • '
Annex 1037
Harriet Salem et al., Crimean Parliament Seized by Unknown Pro-Russian Gunmen, The
Guardian (27 February 2014)
Annex 1038
ABC News, Crimean Parliament Votes to Become Part of Russian Federation, Referendum to be
Held in 10 Days (6 March 2014)
•
•
•
•
•
•
•
•
•
•
Annex 1039
Natalia Antelava, Who Will Protect the Crimean Tatars, The New Yorker (6 March 2014)
News Desk
Who Will Protect the Crimean
Tatars?
March 6, 2014
THE NEV YORIKER
By Natalia Antelava
At first, Rustem Kadyrov could barely make out the mark outside his house, in
the Crimean town of Bakhchysarai, but it filled him with terror. It was an X,
cut deep into the gray metal of the gate, and its significance cut even deeper,
evoking a memory Kadyrov shares with all Crimean Tatars. Kadyrov, who is
thirty-one, grew up hearing stories about marks on doors. In May of 1944,
Stalin ordered his police to tag the houses of Crimean Tatars, the native
Muslim residents of the peninsula. Within a matter of days, all of
them-almost two hundred thousand people-were evicted from their homes,
loaded onto trains, and sent to Central Asia, on the pretext that the
community had collaborated with the Nazi occupation of Crimea.
Kadyrov's grandmother, Sedeka Memetova, who was eight at the time, was
among those deported. "The soldiers gave us five minutes to pack up," she told
me, when I visited the family on Thursday. "We left everything behind."
Memetova still has vivid memories of her journey into exile: the stench of the
overcrowded train carriage, the wailing of a pregnant woman who sat next to
her, and the solemn faces of the men who had to lower the bodies of their
children off of the moving train-the only way, she said, to dispose of the
dead. Four of her siblings were among the thousands of Crimean Tatars who
never even made it to their final destination, Uzbekistan.
Starting in the nineteen-sixties, the Soviet Union began to allow survivors of
the deportation to return. Memetova and her family came back to Crimea
almost three decades ago, in 1987. This weekend, at around 3 P.M. on
Saturday, Memetova's forty-four-year-old daughter, Ava, looked out the
window and saw four young men, strangers to the neighborhood, walking
down the street, armed with batons. The men were also carrying pieces of
paper, Ava told me-which she believes were lists of homes belonging to
Crimean Tatars. Seventy years after Memetova' s deportation, her house had
been marked once again. "Just as we thought we finally had a future," she said.
"How could anyone do this in the twenty-first century?"
When I walked up Chiisty Istochniki Street from the Memetovas' house, I
saw similar marks on four other houses, all of them residences of Crimean
Ta tars, Kadyrov said. The houses of their Russian neighbors, however, had
not been touched. Similar markings have been reported in other parts of
Bakhchysarai, and in some areas of the regional capital, Simferopol. Kadyrov
told me that he called the police, who came out see his gate, but they refused
to register a case. He was not surprised. "The police will not help us," he said.
"They told me Crimean Tatars are not a priority for them. Of course
not-they are punishing us because we do not want Putin here."
Kadyrov' s Russian neighbors have noticed the markings but dismissed his
worries. "Whoever did it was just joking," one woman, who did not wish to be
named, told me. "We get along with our neighbors fine, she continued. "But
it would be helpful if Crimean Tatars stopped supporting Kiev."
Vladimir Putin, the Russian President, claims that his country has an
obligation to protect the Crimean peninsula's Russians, a majority of its
population, from what he called an "orgy of nationalists, and extremists, and
anti-Semites" rampaging through the streets of Kiev. "What does that mean
for us?" Kadyrov asked. "Who will protect us?"
Crimea is now firmly under the control of a new, pro-Moscow government,
which does not recognize the authority of the new administration in Kiev. On
Thursday, as the United States and European Union ramped up pressure on
the Kremlin-announcing sanctions and visa restrictions against involved
individuals-the regional parliament in Crimea voted unanimously to declare
the peninsula part of Russia. A previously scheduled referendum on more
autonomy for Crimea within Ukraine was moved up from March 30th to
March 16th, and changed to a question about merging Crimea with Russia.
There are about three hundred thousand Crimean Tatars on the peninsula,
and although they constitute only fifteen per cent of its population they have
great political significance. If they do not back the upcoming referendum, it
will be far more difficult for the pro- Moscow government in Crimea to
legitimize what is in effect a Russian annexation of the peninsula. This,
Crimean Ta tars told me, is precisely why pressure is growing for them to turn
their back on Kiev.
Over the past week, Moscow has sent a series of delegations to meet with the
leaders of the Crimean Tatar community. On Wednesday, the President of
Tatarstan, an autonomous Muslim republic in Russia, met with members of
the representative body of Crimean Tatars, known as the Mejlis. Another
member of his delegation, Ilshat Aminov-the head of Tatarstan' s state
broadcaster-paid a visit on the same day to the journalists at a Crimean Tatar
television channel, A TR, which has been openly supportive of the new
government in Kiev.
I happened to be at A TR when Aminov arrived. His laughter echoed through
the newsroom as he walked around, praising the station's modern equipment
and avoiding any discussion of the news. When I asked Aminov about the
reason for his visit, he said, simply, "I am here to support my brothers in a
time of trouble." Linur Yunusov, a senior journalist at ATR, told me that
while no Russian official had ever bothered to visit Crimean Tatars before,
Moscow was now sending one delegation after another. "This sudden
brotherly love is overwhelming," he joked.
At one point, a journalist inside the newsroom called Aminov' s attention to a
television screen, which showed masked Russian soldiers blocking the
entrance to a military base outside Simferopol. "This is our live position," the
journalist said, provocatively. "A perfect view of the Russian occupation."
Aminov didn't take the bait. "Which editing software do you use?" he replied.
The delegates visiting from Russia have made many promises to the Crimean
Tatars to solicit their political support: seats in the new government, financial
assistance, official language rights, and rural-development programs. These
offers resonate, particularly as the community feels that its plight has been
largely ignored by the government in Kiev for the past quarter century. Many
Crimean Tatars remain bitterly disappointed that Kiev has not delivered on its
many promises to pass laws that would recognize victims of Stalin's
deportation or establish Crimean Tatar-language schools.
"We are on a verge of losing our culture, our language, our identity," Yunusov,
the senior journalist, told me. And yet, like most of the Crimean Tatars I have
interviewed, he believes that the community will be safer if the peninsula
remains part of Ukraine. "For us, a European Ukraine is the only way of
making sure that we survive as people," he said. "We need European laws to
protect our identity. After what happened in 1944, we can never trust the
Russians."
Eskandar Baiibov, a deputy in the Crimean Tatar Mejlis, told me firmly that
his community is unanimous in its backing for the government in Kiev, and
that Crimean Tatars would boycott any referendum on joining Russia. But he
is also terrified, he admitted, of the price that they might have to pay for
refusing to give the Kremlin the support it wants.
"We are already seeing signs that they are trying to intimidate us, to split us, to
stir trouble," Baiibov said. "Ukrainians are also vulnerable, but at least they
have Ukraine to go to. Where will we go? Crimea is our only home." After the
regional parliament voted to merge Crimea into Russia on Thursday, the
chairman of the Mejlis, Refat Chubarov, released a statement to the press,
calling for the United Nations to "immediately consider" sending a contingent
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of international peacekeepers into Crimea, "in order to deescalate the military
conflict ... which can lead to mass casualties among the entire civilian
population of the peninsula."
But the prospect ofU.N. peacekeepers landing on the peninsula anytime soon
is less than slim. And so, as Crimea prepares for a referendum on its future, its
native people are preparing for the worst. In Bakhchysarai, Ava's husband has
cut up metal rods and placed them throughout the house so the family can use
them to fight off any possible intruders. The men of Chiisty Istochniki Street
now take turns patrolling the neighborhood at night, and Rustem Kadyrov has
applied for travel documents for his children.
"Many of us want to get wives and children out of here, to somewhere safe,"
Kadyrov told me. The men, he said, will stay.
Above: Crimean Tatars hold a rally near the parliament building in Simferopol.
Photograph by Baz Ratner/Reuters.
COND~ NAST
Annex 1040
BBC News, Pro-Ukraine activists beaten up in Crimea (9 March 2014) archived at
https://www.bbc.com/news/av/world-europe-26504449/pro-ukraine-activists-beaten-up-incrimea
6/8/2018 Violence erupts at Ukraine rally - BBC News
https://www.bbc.com/news/av/world-europe-26504449/pro-ukraine-activists-beaten-up-in-crimea 1/4
Violence erupts at
Ukraine rally
'We want to live in a
peaceful country'
Russia warned over
Crimea tension
Shots a
observe
1:26
Pro-Ukraine activists beaten up in Crimea
Violence has erupted at a pro-Ukrainian rally in the Crimean city of Sevastopol.
About 100 pro-Russians with clubs attacked people who were guarding the rally being held
to commemorate the 200th anniversary of poet Taras Shevchenko, attended by some 200
people.
Ben Brown reports from Sevastopol.
09 Mar 2014
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Annex 1041
Simon Shuster, Putin's Man in Crimea Is Ukraine's Worst Nightmare, Time (10 March 2014)
6/1/2018 Putin's Man in Crimea Sergei Aksyonov Is Ukraine's Worst Nightmare | Time
http://time.com/19097/putin-crimea-russia-ukraine-aksyonov/ 1/7
Putin's Man in Crimea Is Ukraine's Worst Nightmare
By SIMON SHUSTER March 10, 2014
A month ago, when Ukraine’s old regime was just starting to crack under the
pressure of a revolution, few people in the country had ever heard of Sergei
Aksyonov. He was then a marginal gure even in the local politics of the region
of Crimea. His Russian Unity party had only three seats in the regional
legislature and no representation anywhere else. But that has not stopped him
from taking charge. In late January, as the protesters in Kiev began seizing
government buildings, Aksyonov started to form an army on the Crimean
peninsula. Now he is the de facto leader of the entire region, a post that has
Crimean Prime Minister Sergei Aksyonov attends a public ceremony in Simferopol, Crimea on March 8, 2014. Daniel van Moll—
NurPhoto/SIPA USA
TIME
«it
_
6/1/2018 Putin's Man in Crimea Sergei Aksyonov Is Ukraine's Worst Nightmare | Time
http://time.com/19097/putin-crimea-russia-ukraine-aksyonov/ 2/7
thrust him into the center of the most dire political crisis Europe has
confronted in years.
From the beginning, the stated aim of his paramilitary force was to defend
against the revolutionary wave that was sweeping across Ukraine and,
ultimately, to break away from the country entirely. Its rst battalion of 700
men came from the youth group of Aksyonov’s political party, and as he
continued calling in the proceeding weeks for a “full scale mobilization,”
hundreds of others joined his Crimean self-defense brigades. By Feb. 21, the
day the Kiev uprising toppled the Ukrainian government, Aksyonov was in
command of several thousand troops. “All of them,” he says, “answer to me.”
His rise to power has made him a valuable ally to Moscow and a serious threat
to Ukraine and its Western partners. His written appeal to Russian President
Vladimir Putin is what opened the door for the Russian occupation of Crimea at
the beginning of this month, and on March 4, Putin recognized Aksyonov as the
legitimate leader of Crimea, apparently without ever having met the man. Since
then the Crimean government has asked Russia to annex the peninsula, a move
that is likely to redraw the map of Ukraine and cause a historic rift between
Russia and the West. The 41-year-old Aksyonov, a lumbering former cigarette
trader with Russian separatism in his genes, now nds himself at the center of
the world’s attention.
So far, the most revealing aspect of his time in power has been the way he came
to possess it. Before dawn on Feb. 27, at least two dozen heavily armed men
stormed the Crimean parliament building and the nearby headquarters of the
regional government, bringing with them a cache of assault ries and rocket
propelled grenades. A few hours later, Aksyonov walked into the parliament
and, after a brief round of talks with the gunmen, began to gather a quorum of
the chamber’s lawmakers.
It is not clear whether the parliament was seized that day on his orders. On the
one hand, the masked gunmen identied themselves as members of Crimea’s
“self-defense forces,” all of which are, according to Aksyonov, directly under
his control. On the other, he claims the seizure of the buildings was done
6/1/2018 Putin's Man in Crimea Sergei Aksyonov Is Ukraine's Worst Nightmare | Time
http://time.com/19097/putin-crimea-russia-ukraine-aksyonov/ 3/7
“spontaneously” by a mysterious group of ghters. “We only knew that these
were Russian nationalist forces,” he tells TIME in an interview Sunday. “These
were people who share our Russian ideology. So if they wanted to kill someone,
they would have killed the nightwatchmen who were inside.”
Instead, they let the guards go, sealed the doors and only allowed the
lawmakers whom Aksyonov invited to enter the building. Various media
accounts have disputed whether he was able to gather a quorum of 50 of his
peers before the session convened that day, and some Crimean legislators who
were registered as present have said they did not come near the building. In
any case, those who did arrive could hardly have voted their conscience while
pro-Russian gunmen stood in the wings with rocket launchers. Both of the
votes held that day were unanimous. The rst appointed Aksyonov, a rookie
statesman with less than four years experience as a local parliamentarian, as
the new Prime Minister of Crimea. The second vote called for a referendum on
the peninsula’s secession from Ukraine.
Since then, Aksyonov has been holding court on the second oor of the
Crimean government headquarters, whose entrance is anked by two masked
commandos with bullet proof vests, fatigues and Kalashnikovs. On the day of
the interview, their commander wore a purple shirt with no tie, his suit
hanging loosely over his tall and bulky frame, which resembles that of a
linebacker. His manner, he admits, does not t the mold of a politician. “I was
chosen as a crisis manager,” he says. “Everybody else ran away. Nobody wanted
to take one iota of responsibility on themselves. So I was forced to take it on
myself.”
What urged him to start gathering an army in January was the threat he sees
from the revolution. Its leaders, he says, are part of a fascist force intent on
disenfranchising the ethnic Russian majority in Crimea, and without the armed
intervention of his “self-defense forces,” they would have sent their troops to
bring the peninsula to heel. When questioned about his methods, he always
gave a version of the same response – if the Kiev revolutionaries did it, why
can’t he? If the revolution used force to seize government buildings in Kiev,
why can’t his supporters do the same in Crimea? If the revolution sought
6/1/2018 Putin's Man in Crimea Sergei Aksyonov Is Ukraine's Worst Nightmare | Time
http://time.com/19097/putin-crimea-russia-ukraine-aksyonov/ 4/7
support from their allies in the West, why shouldn’t he ask Russia to come to
his defense?
Given the fact that he has never actually lived in Russia, Aksyonov’s affection
for the country is remarkable. It has a lot to do with the line of Red Army
ofcers in his family. His grandfather was stationed in the Germany city of
Potsdam after the Soviet victory in World War II. But Aksyonov’s take on
Russian patriotism seems to derive mostly from his father, whose political
struggle for the rights of ethnic Russians closely parallels that of his son.
In the late 1980s, as the Soviet Union began to fall apart, nationalist
movements for independence began to spring up in nearly all of its satellite
states, from the Baltics to Central Asia. Aksyonov’s father, an ofcer in the Red
Army, was then stationed in the Eastern European state of Moldova, where a
new generation of leaders was demanding their rights to form an independent
state.
That left the ethnic minorities in that country, including the Aksyonov family
and other Russians, in a precarious position – they suddenly had to fend for
themselves on the fraying edges of the Soviet empire. As that empire was
pushed out of Eastern Europe, Aksyonov’s father, Valery, became the leader of
a group called the Russian Community of Northern Moldova, which
campaigned for the rights of ethnic Russians in a country ruled by the
Moldovan majority. In 1990, the ethnic tensions in that country erupted into
war, and the Russian army came to the rescue of paramilitary groups ghting
the forces of the Moldovan government. Two years later, the conict ended
with the de facto secession of a breakaway state called Transnistria, a sliver of
land that runs along the Dniestr River.
Today, Transnistria is still a frozen conict zone on the map of Europe – and a
state that Aksyonov reveres. Its independence is not recognized by any member
of the United Nations, including Russia. It is the only part of Europe that still
uses the insignia of the Soviet Union, and its economy imposes Soviet-style
subsistence living on the masses while the politically-connected elite benet
from its unique black market. As an unrecognized state unbound by
6/1/2018 Putin's Man in Crimea Sergei Aksyonov Is Ukraine's Worst Nightmare | Time
http://time.com/19097/putin-crimea-russia-ukraine-aksyonov/ 5/7
international law, its customs points are a clearinghouse for contraband,
including tobacco, guns and counterfeit liquor. But Aksyonov sees it as a place
to be emulated. “Transnistria is a bastion of Russian culture inside Moldova,”
he says. “They wanted to preserve their identity. And I fully support them,
because I know what kind of pressures they faced.”
In 1989, just before the war in Moldova broke out, those pressures convinced
the 17-year-old Aksyonov to move from his homeland to Crimea, where he
enrolled in a college for Soviet military engineers. But before he could graduate
from the academy to become a Red Army ofcer like his father and grandfather,
the Soviet Union collapsed. “All of us, my entire class, we were all told, ‘That’s
it, you have no country left to serve. Now pledge an oath to independent
Ukraine,’” he recalls. “It’s just like what’s happening now.”
Then, as now, Aksyonov refused to serve Ukraine, which he considers an
unjustly severed appendage of Russia. So he decided instead to go into
business. At the time, the Crimean economy was much like the one in
Transnistria – dominated by black marketeers and smugglers. Its geographic
position in the Black Sea, right between Turkey, Russia and southeastern
Europe, made it a perfect hub for trafckers of every sort. Anatoly Los, who is
now 70, was one of the most prominent Crimean businessmen at the time. “I
had so much money I couldn’t even t my hand in my pocket,” he says. When
he met with TIME on Saturday for an interview on the central square in the
Crimean city of Yalta, he came dressed in a blue trench coat and a black fedora,
which he used to shoo away the admirers who came over to shake his hand.
He remembers Aksyonov in the 1990s as a member of a criminal syndicate
called Salem, which was named for the brand of contraband cigarettes they
imported and dealt in bulk. (Other accounts claim the group was named for the
cafe where they hung out.) “Aksyonov was a capo for them, an enforcer,” says
Los. “He had a group of ten guys that would go around collecting money.”
Aksyonov’s nickname in the local underworld, says Los, was the Goblin. “Every
gangster had a nickname. I was called Horns because of my surname.”
(Translated from Russian, the word los means moose or elk.)
6/1/2018 Putin's Man in Crimea Sergei Aksyonov Is Ukraine's Worst Nightmare | Time
http://time.com/19097/putin-crimea-russia-ukraine-aksyonov/ 6/7
Asked about these allegations, Aksyonov leans back in his chair with a smile
and says that Los “is insane, with real psychological problems.” He admits that
they have known each other since the 1990s, but all claims of his links to the
maa, Aksyonov says, are part of a slander campaign initiated by his political
opponents when he rst became active in the pro-Russian movement in 2008.
“All of a sudden these stories about me began appearing online,” he says.
He insists he never had any links to the Salem gang or other criminal groups in
Crimea, but he admits that his business in the 1990s did involve the import of
tobacco products. For the most part, however, he says he started out selling
umbrellas from Moldova. “The market was chaotic, so we survived however we
could,” says Aksyonov. “In my father’s factory they were making automatic
umbrellas. So we were the rst to set up imports to Crimea. We had 18 spots
selling them around the bazaars.”
With the help of bank loans, Aksyonov went on to participate in the
privatization of state assets in Crimea, primarily real estate deals. He now owns
large stakes in two local factories, including one producing automotive parts in
the Crimean capital of Simferopol. “That’s registered under my wife and my
mother-in-law,” he says. “We bought those factories out with plans to x them,
but then the crisis hit.”
In 2008, as the global nancial crisis squeezed businesses across Ukraine and
made prots harder to come by, Aksyonov got involved in a political activist
group called the Russian Community of Crimea, which has long campaigned for
the peninsula to split from Ukraine and become a part of Russia. (In the early
1990s, Los was one of the founders of that group.) Its relations with the local
government were fraught, and it often faced investigation for training
separatist militias, which is illegal in Ukraine. No charges were ever led
against its leaders, not even after the party’s activists, under the direction of
Aksyonov, pelted the mayor of Simferopol with eggs. “Those guys were
involved in tons of corrupt schemes,” he says of the peninsula’s former leaders.
“So we took a lot of drastic actions.”
6/1/2018 Putin's Man in Crimea Sergei Aksyonov Is Ukraine's Worst Nightmare | Time
http://time.com/19097/putin-crimea-russia-ukraine-aksyonov/ 7/7
In 2010, Aksyonov formed the Russian Unity party and went on to win 4% of
the vote in that year’s Crimean parliamentary elections, securing three out of
the chamber’s 100 seats, one for himself. When the revolution broke out in
Ukraine late last year, his party was one of the main organizers of pro-Russian
rallies in Crimea, hyping the threat from the Ukrainian nationalist parties that
were helping overthrow the government. But even then, he never imagined the
political vistas their revolt would open up for him.
On Monday, he accepted the oath of loyalty from the rst batch of Crimean
military ofcers, for whom he is now the commander-in-chief. In the past two
weeks, he has sent emissaries for talks with ofcials in Moscow and has
received senior Russian lawmakers in his breakaway capital. Based on their
assessments of his character, Aksyonov says, Putin decided to recognize him as
the leader of the peninsula last week. “Of course he is legitimate,” Putin noted
on March 4, although according to Aksyonov the two have never spoken. “We
had no contact at all,” he insists. “Though I’m sure we will be in touch as the
process moves forward.”
This weekend, Crimea will hold a referendum on its secession from Ukraine, a
ballot that Kiev has condemned as an illegal act of separatism. But Aksyonov is
certain the vote will pass, and after that, the peninsula will either become a
part of Russia or an quasi-independent state under Moscow’s protection, sort
of like Transnistria has been for most of the last quarter century. The fact that
the West is unlikely to recognize his region’s independence doesn’t seem to
bother Aksyonov at all. “On what grounds should America tell us what to do?”
he demands. “Independence is what we want. It is what Crimeans want.” And
whatever the legality of his methods, Aksyonov is now the man steering them
toward Russia’s embrace.
Annex 1042
Harper blasts Crimea referendum, protesters express solidarity with Ukraine, CBC (16 March
2014)
•
•
I
Annex 1043
Paul Roderick Gregory, Putin’s Destabilization of Ukraine Overshadows Today’s Crimean Vote,
Forbes (16 March 2014)
I
IME
16 MAPTA MEI BbIEMPAEM
Forbes BrandVoice
---
Annex 1044
Merkel: Crimea grab 'against international law', The Local (18 March 2014)
----------------------------------------------------C) ·
Annex 1045
U.S., NATO Allies Condemn Russian 'Land Grab' In Ukraine, RFE/RL (18 March 2014)
6/1/2018 U.S., NATO Allies Condemn Russian 'Land Grab' In Ukraine
https://www.rferl.org/a/nato-russia-crimea-ukraine-biden-international-law/25301448.html 1/3
RUSSIA
U.S., NATO Allies Condemn Russian 'Land Grab' In Ukraine
March 18, 2014 15:17 GMT
RFE/RL
The United States and European Union have condemned Russia’s formal annexation of
Ukraine’s Crimea as illegal and vowed they will not recognize it.
Ukrainian Prime Minister Arseniy Yatsenyuk has meanwhile said the conflict is moving
into a “military stage” and that Russian soldiers have opened fire on Ukrainian
servicemen.
His statement came as reports from Crimea said a Ukrainian soldier had been shot dead in
an attack. Details on what occurred were not immediately clear.
Ukrainian acting President Oleksandr Turchynov released a statement later on March 18
saying Ukrainian servicemen, including those in Crimea, had been authorized to use
weapons to defend themselves.
The statement accused Russia of responsiblity for "the blood of Ukrainian soldiers."
ALSO READ Live Blog: Ukraine Crisis
The soldier's death was the first reported in Crimea since thousands of Russian troops
deployed in the territory shortly after former Ukrainian President Viktor Yanukovych was
ousted from power in late February.
In Washington, White House spokesman Jay Carney called the "attempted annexation" of
Crimea, signed by Russian President Vladimir Putin in Moscow, a "threat to international
peace and security."
He said Washington would impose more sanctions in reaction to the move.
! - RadiofreeEurope
RadioLiberty
6/1/2018 U.S., NATO Allies Condemn Russian 'Land Grab' In Ukraine
https://www.rferl.org/a/nato-russia-crimea-ukraine-biden-international-law/25301448.html 2/3
"Those actions have incurred costs already," Carney said. "They have done damage to
Russia's economy, to its currency, and to its standing in the world. Further actions,
further provocations will lead to higher costs."
On March 17, the European Union and the United States unveiled sanctions targeting some
30 Russians, Ukrainians, and Crimeans.
Carney added that the Russian economy was likely to suer.
"Russia is taking action that reverses some of the work that that nation had done to
establish itself as a responsible leader on the international stage," Carney said. "It isolates
Russia, it undermines faith in Russia's commitment to rule of law and therefore
undermines the incentive that global investors might have in investing in Russia. That
eect has a negative impact on Russia's economy and on the Russian people."
U.S. President Barack Obama and German Chancellor Angela Merkel spoke about the crisis
by telephone.
Merkel's spokesman, Steen Seibert, said the leaders agreed Ukraine's territorial integrity
had suered "unacceptable blows."
Merkel and Obama also agreed that the March 16 referendum on secession held in Crimea
violated Ukraine's constitution and international law and that targeted measures against
Russia were a "logical" response.
A statement from the EU’s leadership said “the European Union does not and will not
recognize" the annexation of Crimea and Sevastopol.
Russian Foreign Minister Sergei Lavrov called Western sanctions "absolutely
unacceptable" and said such measures would have consequences.
The Russian Foreign Ministry said Lavrov delivered the message in a telephone call on
March 18 with U.S. Secretary of State John Kerry.
The statement did not give details about any retaliatory measures the Kremlin might take
against the United States and European Union.
Speaking to students in Washington later the same day, Kerry chided Russian ocials for
6/1/2018 U.S., NATO Allies Condemn Russian 'Land Grab' In Ukraine
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Radio Free Europe/Radio Liberty © 2018 RFE/RL, Inc. All Rights Reserved.
their interpretation of events.
"I was really struck and somewhat surprised and even disappointed by the interpretations
and the facts as they were articulated by [Russian] President [Vladimir Putin]," Kerry said.
"With all due respect, they really just didn't jibe with reality or with what's happening on
the ground. The president may have his version of history, but I believe that he and Russia
for what they have done are on the wrong side of history."
Thousands of Russian forces have been occupying Crimea since late last month.
The Russian State Duma is expected to overwhelmingly back the treaty as soon as March
19.
In his speech to Russian lawmakers earlier in the day, Putin said Crimea's secessionist
referendum was democratic and Russia's annexation was in full accordance with
international law.
He also dismissed Western criticism as unfair to Russians and Crimeans. Putin cited
Kosovo's 2008 unilateral declaration of independence from Serbia, which has been
recognized by Western nations but not by Russia.
With reporting by RFE/RL's Ukrainian Service, Reuters, and AFP
Annex 1046
Oleksandra Nezvanna, The “Diva” of Crimean Education Statistics, Holos Krymu,Voice of
Crimea (25 September 2015)
31 May 2018 «Wonders» of Crimean education statistics
http://voicecrimea.com.ua/main/articles/diva-krimsko%d1%97-osvitno%d1%97-statistiki.html 1/4
«Wonders» of Crimean education statistics
By Oleksandra Nezvanna - 25 September 2015
At the end of August, the majority of mass media spread the news that there are no classes with the
Ukrainian language of instruction being offeredin the temporarily occupied Crimea: "Minister: Crimea
does not offer Ukrainian classes because of reduced demand ", "There are no Ukrainian classes left
in Crimea - Minister", "Crimean authorities canceled the lower Ukrainian classes in schools, because
nobody wants them", "There are no people willing to study in the Ukrainian language in Crimea" (a
similar situation was observed in the past year: "In Crimea, there were no requests to study in
Ukrainian during first-grade enrollment", "There will be no primary classes in Crimea with Ukrainian
language of instruction".) This news wave emerged after the press conference of the Minister of
Education of the annexed Crimea, Natalia Goncharova, said: "We have a network consisting of 17
classes with the Ukrainian language of instruction, including those at the Academic Gymnasium of
Simferopol. During admission to the 1st grade there have been no applications for studying in the
Ukrainian language", repeating her statement from last year: "In the territory of the Crimean Federal
District of Russia there will not be no primary classes with instruction in the Ukrainian language.
Those have simply been no such requests." The words of the occupation Minister of Education had
mixed reactions: some reacted with a frenzied smile, and even with joy, some people reacted
indifferently to such news, and others were "hurt" and outraged.
Suddenly, on September 8, 2015, on the website of the occupation Ministry of Education, Science
and Youth of Crimea, there was information: "Crimean-Tatar and Ukrainian languages are taught in
Crimea to little
31 May 2018 «Wonders» of Crimean education statistics
http://voicecrimea.com.ua/main/articles/diva-krimsko%d1%97-osvitno%d1%97-statistiki.html 2/4
more than 3% of children", which provides somewhat different information: "In the current academic
year, 2 first grade classes with Ukrainian language instruction were opened. In the two schools,
there are classes in grades 1 through 9 with the Ukrainian language of instruction (Alushta,
Feodosia). "What happened remains beyond belief - whether the minister was provided with "bad"
information, whether the officers-invaders "did not get it" (but it's hard to believe, since the
programming is not planned at the last moment, and in order "not to see" two classes you need to
really want not to see them), or it was common for the policy of occupation to be one of silence or
disinformation. Another media wave rises again: "The Crimean authorities assert that there is no
desire to learn Ukrainian language on the peninsula", "Less than a thousand children in Crimea study
in the Ukrainian language", "About 3% of schoolchildren study in the Crimean Tatar language, less
than 1% in Ukrainian" and practically nobody paid attention to the material that was ten days later.
However, the informational message of the occupying authority MONMRC provides an opportunity to
once again focus on the linguistic issue in the education of the occupied Crimea.
On the eve of Russia's aggression in Crimea, the following graphic was made according to the
language of instruction:
For a better understanding, it is about 13 thousand students who studied in Ukrainian and more
than 20 thousand students who studied in the Crimean Tatar language. 5,551 students (3.1%
of the total) studied in the Crimean Tatar language, 12,707 students studied Crimean Tatar as
a subject, 28 - in-depth, 6906 - as an elective.
The annexation of the peninsula by the Russian Federation has substantially changed the
situation in the language sphere. Six months after the capture of Crimea, the occupiers carried
out a population census, which showed some changes:
LANGUAGE ISSUE IN THE EDUCATION OF
OCCUPIED CRIMEA
Education
Academic
Year 2014
Instruction in the Russian language – 89.32%
Instruction in the Ukrainian language – 7.41%
Instruction in the Crimean Tatar language – 3.11%
Instruction in the English language – 0.15%
31 May 2018 «Wonders» of Crimean education statistics
http://voicecrimea.com.ua/main/articles/diva-krimsko%d1%97-osvitno%d1%97-statistiki.html 3/4
It is clear that the state of affairs and education changed in the 2014-2015 academic year. The
number of students studying in the Ukrainian language dropped significantly from 12,867 to 1,990
students. There were also changes with the study of the Crimean Tatar language - the number of
students decreased from 5,406 to 4,740 students.
And the new 2015 - 2016 academic year has continued this trend of reducing education in the
Ukrainian language, and those who want to study in the Crimean Tatar language have increased:
LANGUAGE ISSUE IN THE EDUCATION OF
OCCUPIED CRIMEA
Education
Academic Year
2015-2016
Instruction in the Ukrainian language – 0.5%
Instruction in the Crimean Tatar language – 2.76%
Census that demonstrated changes
Russian was recognized as a native of84 (8.s% in 200)
Crimean Tatar language was native tog% (in zoo1it was9.59%), •
Tatar language recognized anative 3.% (in 20o1, 0.39%)
Ukrainian language recognized native to 3.3% (in 2001, 9.51%)
31 May 2018 «Wonders» of Crimean education statistics
http://voicecrimea.com.ua/main/articles/diva-krimsko%d1%97-osvitno%d1%97-statistiki.html 4/4
And again there was a "miracle" of Crimean educational statistics. Compared to August of this year,
in ten days, the number of first grades increased from 32 to 37!
As a result, it should be noted that despite the alleged opportunities for the inhabitants of the
temporarily occupied Crimea, there is a strong pressure on parents and children who want to study
in the Ukrainian or Crimean Tatar language. However, Crimea remains Ukrainian!
Oleg Okhredko,
expert in education matters of CGP
«Almenda»,
for NA “The Voice of Crimea”
Annex 1047
RFE/RL, The Editors of the Crimean Tatar Newspaper Are Summoned for Interrogations on
Suspicion of Extremism (3 June 2014)
!" #
$%&'
! sir Kps.PeanM J
The editors of the Crimean Tatar newspaper are
summoned for interrogations on suspicion of
extremism
03 June 2014, 10:27 Crimea. Realities
Shevket Kaibullaev, editor-in-chief of the Crimean Tatar newspaper Avdet, was
summoned to the "prosecutor's office" of the city ofSimferopol.
As stated in the text of the agenda, which received the editorship, the
"prosecutor's office" ofSimferopol conducts an audit of the violation of the
requirements of the law of the Russian Federation "On Countering Extremist
Activity" by the management of the printed publication.
According to Shevket Kaibullaev, there were no other comments from
representatives of the "prosecutor's office".
"Today at 15 o'clock I was invited to a conversation in the building of the city
prosecutor's office ofSimferopol. It is difficult to assume the content of the
conversation, but judging by the article that is on the agenda, we will be accused
of allegedly extremism, "the editor-in-chief told the correspondent of the
Crimean.Realiya website .
The newspaper "Avdet" is a printed organ of the Mejlis of the Crimean Tatar
people. Published since July 15, 1990.
!" #
On May 15, officers of the Federal Security Service of the Russian Federation
conducted searches in the homes of Ali Khamzin, member of the Mejlis of the
Crimean Tatar people. The FSB officers searched for explosives, weapons related
to terrorist activities.
UTC + 3 © Crimea.Realii, 2017 I All rights reserved.
Annex 1048
Interfax, Head of Crimean Acknowledges Disappearance of Crimean Tatars on Peninsula (16
October 2014)
5/15/2018 Head of Crimea Acknowledges Disappearance of Crimean Tatars on Peninsula
http://www.interfax.ru/russia/402161 1/2
Interfax
IN RUSSIA -> ANNEXATION OF CRIMEA
12:08, October 16, 2014
Head of Crimea Acknowledges Disappearance of Crimean Tatars on
Peninsula
According to Sergey Aksenov, four representatives of the Crimean Tatar people have gone missing in the
republic
Sergey Aksenov Photo: TASS, Mikhail Mettsel
Moscow. October 16. INTERFAX.RU: Head of Crimea Sergey Aksenov acknowledged that there are four
cases of disappearance of Crimean Tatars in the republic, but stated that they are not mass
disappearances.
“I visited the parents of the young men who went missing. I can say that this is not a mass phenomenon.
There are cases where people of Slavic appearance also go missing. Four Crimean Tatars are listed as
missing,” Aksenov told journalists on Thursday.
According to him, the law enforcement authorities are determining how the people disappeared. “In
some cases there are doubts as to whether there were instances of kidnapping. In some cases there
were people who fought in Syria. The investigative authorities are doing all of the work necessary to
determine the causes of what has happened,” Aksenov said.
He said that the Crimean authorities are closely cooperating with Muslim leaders and the leadership of
the Crimean Tatar community. “We cooperate with all Crimean Tatar organizations and we have a very
constructive relationship with the mufti,” he said.
The head of Crimea noted at the same time that he does not intend to communicate with the Crimean
Tatar people’s Medzhlis until the organization is officially registered.
“The Medzhlis does not exist for me now. This organization is not registered with the Ministry of Justice.
Until the organization becomes legal, I don’t see it and do not intend to communicate with it in that
sense,” he said.
5/15/2018 Head of Crimea Acknowledges Disappearance of Crimean Tatars on Peninsula
http://www.interfax.ru/russia/402161 2/2
Last Tuesday the issue of the kidnappings of Crimean Tatars was raised at a meeting of the
representatives of the president’s Council on Human Rights with the head of state Vladimir Putin.
Member of the Human Rights Council Nikolay Svanidze said that he had information about instances of
“disappearances and direct kidnappings” of Crimean Tatars “by people without identifying marks.”
In response, Putin expressed bewilderment over the information about oppression of Crimean Tatar
representatives and stated that he would pay attention to it. “Of course some phenomena need to be
looked at closely. I’m grateful to you that you have drawn my attention to this. I’m hearing for the first
time from you that there are some disappearances of people there. It isn’t clear who is doing it or why. I
don’t understand it all,” said the head of state.
Related news
[...]
Material printed from the Interfax site
URL: http://www.interfax.ru/russia/402161
Annex 1049
Anna Andriyevska, Volunteers of the Crimea Battalion, Center for Journalistic Investigations (11
December 2014)
Volunteers of the Crimea Battalion - Center for Investigative Reporting
https://investigator.org.ua/articles/144257/[5/24/2018 11:49:13 AM]
Volunteers of the Crimea Battalion
12/11/2014
Anna Andrievskaya for the Center
Since the start of the antiterrorist operation in eastern Ukraine information has appeared that
volunteers from the occupied peninsula are forming a Crimea battalion. However, the Center
has been able to determine that it is not the only one, and the Crimean volunteers belong to
several divisions.
More precisely, three. These are the separate Crimea “hundred” within the Dniepr-1 battalion of
Ukraine’s National Guard and the Crimea battalion within the 44th battalion of territorial defense of
the MO [municipality]. There is also a separate special division called the Crimea battalion which
has become known thanks to its battalion commander Isa Akaev, who in the “i ”
[Brave Hearts] program addressed the occupants of Crimea one on one, promising to “come for each
of them.”
Volunteers of the Crimea Battalion - Center for Investigative Reporting
https://investigator.org.ua/articles/144257/[5/24/2018 11:49:13 AM]
[Photo]
It also turned out that the fighters of Isa Akaev’s battalion already have special distinguished
service: just nine of them heroically defended the well-known Savur-Mohyla [strategic height] in
Donbass. At the same time today the battalion, just as the other volunteer divisions participating in
the antiterrorist operation, needs the help of volunteers and citizens. You can read more about the
divisions of Crimea volunteers in a separate article; today we are writing about who is helping them
defend the Homeland.
Helpers of the homefront
According to the Crimea battalion fighters, it is the volunteer organizations “People’s Homefront”
and “AutoMaidan-Vinnitsa” that give them the most assistance. Although the volunteers themselves
say they don’t divide the battalions: they supply everyone on equal terms as per requests and the
availability of what is needed at the assistance collection centers.
“We do not make such a gradation, a division by battalion or by sector. We have collected several
million hryvnia in total. We don’t count the food at all. Because a vehicle arrives, it is immediately
unloaded and leaves. In the overwhelming majority of cases we don’t even look at the contents of
the boxes,” says Georgiy Tuka, coordinator of the “People’s Homefront” volunteer movement. For
the same reason the volunteer organization cannot say
Volunteers of the Crimea Battalion - Center for Investigative Reporting
https://investigator.org.ua/articles/144257/[5/24/2018 11:49:13 AM]
how many donations were collected specifically for the Crimea battalion, including by Crimeans.
However, according to Georgiy Tuka, he and his like-minded associates started to help Crimean
soldiers even before the events in eastern Ukraine, during the Russian occupation of the peninsula.
[Photo]
“There were guys we knew who were serving in the Ukrainian units. And when they started to be
blocked, they started to request assistance to buy them cards for mobile telephones, because they
couldn’t leave their units. Then we started to help with food, then to provide relocation assistance.
We had just managed to relocate them when Donbass started,” Tuka said.
“People’s Homeland” has provided the fighters of the Crimea battalion with all the necessities for
several months already: from uniforms and food to weapons. The volunteers struck up their
cooperation with the Crimeans as soon as the battalion was created. In other words, even before the
division became famous after the heroic defense of Savur-Mohyla, thanks to which the Ukrainian
side controls a large section of its border with Russia. It is difficult to believe, but that strategic
height was held by just nine fighters.
Vinnitsa is with Crimea
Volunteers of the Crimea Battalion - Center for Investigative Reporting
https://investigator.org.ua/articles/144257/[5/24/2018 11:49:13 AM]
The fighters of the Crimea battalion are under the wing of another volunteer organization,
“AutoMaidan-Vinnitsa.” Its activist Taisiya Gayda says that not only were many displaced persons
from Crimea given shelter in Vinnitsa, they now help Crimean volunteers who have gone to the
front line.
[Photo]
“We have a long friendship with the Crimeans. We took in some of the Crimeans. Vinnitsa is quite
concerned for the fate of Crimea; we really want it to stay in Ukraine. So our local AutoMaidan
undertook to provide assistance to displaced persons and fighters of the antiterrorist operation. We
collect all of the necessary things for them and send them ourselves. Because they are our heroes.
Our fate and the fate of our country depend on them. Many Crimeans hope that Crimea will return.
And the Crimea battalion gives them hope of this,” she said.
According to her, the number of people willing to support the Crimea battalion is constantly
growing.
“We haven’t counted precisely how much money we have spent on assisting the Crimea battalion,
but there are many people who want to help that battalion specifically. And the number of those
people is constantly on the rise. Recently two automobiles were purchased for the battalion. Those
are the big purchases. I’m not counting the clothing, food, rations and other things,” said Taisiya
Gayda.
What does the battalion need?
Volunteers of the Crimea Battalion - Center for Investigative Reporting
https://investigator.org.ua/articles/144257/[5/24/2018 11:49:13 AM]
Of course the Crimea battalion, in contrast to other volunteer formations, has a special objective: to
not only win the war in Donbass, but also to return Crimea to Ukrainian control.
Just as all volunteer battalions and also regular units of the Ukrainian Army and the Interior
Ministry, the Crimea battalion can act effectively only thanks to the support of citizens: support
which volunteers collect and deliver. Today the battalion really needs thermal imaging sights,
scopes, binoculars and range scopes that make it possible to shoot accurately, including at night.
At the same time, notes Georgiy Tuka, recently the number of donations collected by volunteers of
“People’s Homefront” has gone down considerably.
“The flow of investments and donations has gone down. Both financial and food amounts have gone
down. The first reason is the common information space in the country that mostly promotes peace,
cease-fire and calm. But nevertheless, guys are dying every day and we receive dozens of wounded
every day. That’s the kind of “cease-fire” we are dealing with” says Georgiy Tuka.
Volunteers of the Crimea Battalion - Center for Investigative Reporting
https://investigator.org.ua/articles/144257/[5/24/2018 11:49:13 AM]
[Photo]
What is meant are the declarations heard in early December from both sides of the front about
another cease-fire, including in the hottest spot of the antiterrorist operation, Donetsk Airport.
Despite the fact that shooting was to stop on the evening of December 2, the ATO press center
continues to inform of attacks from the terrorists on a daily basis.
Those who are hoping for peace soon should be reminded how the Minsk agreement reached back
on September 5 is being complied with in practice.
Volunteers of the Crimea Battalion - Center for Investigative Reporting
https://investigator.org.ua/articles/144257/[5/24/2018 11:49:13 AM]
More than 1,000 thousand [sic] soldiers and volunteers died during the imaginary cease-fire, as well
as several hundred civilians.
This means that the Ukrainian fighters’ needs will not decrease in the near future. Just as the need
for assistance from all those whose peaceful sleep they are now securing. For example, Crimeans
could more actively provide support to the Crimea battalion. Considering that the fighters called the
return of the occupied peninsula to Ukrainian control their chief objective. It should be understood
that this is desired also by business representatives, many of whom also relocated from Crimea after
it was annexed by Russia. Hasn’t the time come to start returning it?
Annex 1050
Kommersant, The Crimean Tatar Ego (3 March 2015)
[…]
Aleksandr Formanchuk, advisor to the head of the Republic of Crimea, political analyst
Crimean Tatars are experiencing rather painful changes in Crimea—integration into the Ukrainian space
in the past, as well as the referendum of 2014 and integration into Russia. The Crimean Tatar issue is a
fundamental problematic point in the question of Crimea’s integration into the political and legal space of
Russia today.
Crimean Tatars fear integration because they are always striving for separateness. Their main goal is
national territorial autonomy. On the one hand, they declared the need to participate in government bodies
when still in Ukraine; on the other, they wanted autonomy.
The idea of Crimean Tatar statehood is a conflict-ridden idea.
Under the Russian Federation, Crimean Tatars have more opportunities to exercise their rights than in
Ukraine. In Russia, there are laws on national cultural autonomy, and, within their framework, Tatars can,
in fact, legitimize the Mejlis as a body of ethnic self-government for the Crimean Tatars. But only under
one condition: they must adhere to a concept of cooperation, rather than opposition.
[…]
Annex 1051
DW, Putin Reveals Details of Decision to Annex Crimea, (9 March 2015)
NEWS
Putin reveals details of decision to annex Crimea
Russian President Vladimir Putin has described the moment he claims to have ordered the incorporation of Crimea into the
Russian Federation. Details of the overnight meeting came to light in a forthcoming documentary.
Putin said he decided to begin the annexation of Crimea when he met security officials to discuss rescue plans for ousted Ukrainian President
Viktor Yanukovych.
In a trailer for the documentary titled "Homeward Bound," Putin said it had been decided upon in an overnight meeting from February 22 to
23. At the end, he told defense ministry officials and special forces commanders to start work on the annexation.
"We ended at about seven in the morning," Putin said in the trailer. "When we were saying goodbye, I said to all my colleagues: we must start
working on returning Crimea to Russia."
By late February, Yanukovych had already arrived in Russia, and unmarked Russian forces were preparing to establish a presence in Crimea.
Soldiers took over the Crimean local parliament and voted in a new government, with the region being incorporated two days after a March 16
referendum in favor of joining Russia.
Changing story of occupation
The military operation was initially kept secret with the Kremlin insisting that only locals were involved in the uprising against Kyiv. Putin later
conceded Russian troops were involved, particularly in the build-up to the cessation vote. Russian officials had previously said the annexation
decision, to which Kyiv has strongly objected, was taken only after the referendum.
Russian soldiers have been given medals "For returning Crimea" that cite the beginning of the operation as February 20, before the overnight
meeting even took place.
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Home to Russia's Black Sea fleet, Crimea was given by
Russia to Ukraine when both were part of the USSR
Date 09.03.2015
Related Subjects Ukraine, Crimea, Russia, Donetsk, Dmitry Medvedev, Vladimir Putin
Keywords Crimea, Putin, Russia, Ukraine, annexation, referendum, Yanukovych, Donetsk, USSR
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Putin also said the Russian military had been preparing to fight its way into the eastern
city of Donetsk to rescue Yanukovych, with Putin claiming the toppled pro-Russian
leader would have otherwise been killed.
"We got ready to get him out of Donetsk by land, by sea and by air," said Putin.
The minute-long trailer, aired late on Sunday by state television channel Rossiya-1,
featured dramatic music and shots of the Crimean coast. The channel did not specify
when the full film would be shown, only that it would be broadcast "soon."
Crimea has an ethnic Russian majority and is the base of Moscow's Black Sea fleet.
Having been part of the Russian empire, it was transferred by Kremlin leader Nikita
Khrushchev as a "gift" to Ukraine from Russia in 1954 when both countries were part of the Soviet Union.
Fighting in the eastern Ukraine regions of Donetsk and Luhansk, which has killed more than 6,000 people, flared up in April in the wake of
Crimea's annexation by Russia.
rc/jr (AP, AFP, dpa, Reuters)
DW RECOMMENDS
UN: More than 6,000 killed in Ukraine war
More than 6,000 people have been killed since eastern Ukraine's separatist insurgency erupted last April, the UN says. The Geneva-based body warned the
situation had "dramatically deteriorated" in recent months. (02.03.2015)
Ukraine's new president rejects annexation of Crimea
Ukraine's new president, Petro Poroshenko, has vowed to maintain the territorial integrity of his country, including Crimea. In his inauguration speech, he
also vowed to pursue closer ties with the European Union. (07.06.2014)
Crimea headed for rocky transition
The majority of Crimea's inhabitants have chosen to split from Ukraine and join Russia. Their decision, however, will bring far-reaching changes and a host
of international legal problems. (18.03.2014)
Putin reveals details of decision to annex Crimea | News | DW | 09.03.2015 Page 2 of 2
http://www.dw.com/en/putin-reveals-details-of-decision-to-annex-crimea/a-18304158 5/3/2018
Annex 1052
RFE/RL, Russia Celebrates Crimea Annexation Anniversary (16 March 2015)
6/1/2018 Russia Celebrates Crimea Annexation Anniversary
https://www.rferl.org/a/russia-crimea-annexation-anniversary-celebrations/26903433.html 1/4
RUSSIA
Russia Celebrates Crimea Annexation Anniversary
March 16, 2015 11:07 GMT
RFE/RL
Russia has kicked o weeklong celebrations marking the anniversary of Russia's
annexation of Crimea, while the United States and the European Union rearmed their
support for Ukraine's sovereignty and territorial integrity.
In a ceremony at the Moscow-backed legislature in Crimea on March 16, a choir sang the
Russian national anthem.
The ceremony was shown live on Russian state television.
Russian President Vladimir Putin's envoy to Crimea, Oleg Belaventsev, congratulated State
Council deputies on the first anniversary of Crimea's "return to Russia."
He handed certificates of honor to members of Crimea's Russian leadership and
lawmakers for their "contribution to Crimea's reunification with Russia."
Belaventsev repeated Russia's claim that it moved to take control over Crimea because it
feared for the people there following the ouster of Moscow-backed President Viktor
Yanukovych in February 2014 after protests the Kremlin has cast as a U.S.-backed coup.
Russia annexed Crimea from Ukraine after sending troops there and staging a secession
referendum on March 16, 2014, that was condemned by dozens of countries and declared
illegal in an overwhelming vote in the UN General Assembly.
And Ukrainian government forces have been battling pro-Russian separatists in the
country's east in a conflict that has killed more than 6,000 people since April.
! - RadioFreeEurope
RadioLiberty
6/1/2018 Russia Celebrates Crimea Annexation Anniversary
https://www.rferl.org/a/russia-crimea-annexation-anniversary-celebrations/26903433.html 2/4
Fighting has decreased since a cease-fire deal reached in Minsk on February 12, with both
sides accusing each other of violations.
The United States and its European allies have imposed sanctions on Russia over its
interference in Ukraine and support for the rebels.
The United States reiterated on March 16 that it won't recognize Russia's "attempted
annexation."
In a statement, State Department spokeswoman Jen Psaki said that "sanctions related to
Crimea will remain in place as long as the occupation continues."
"Over the last year, the human rights situation in Crimea has deteriorated dramatically,
with mounting repression of minority communities and faiths, in particular Crimean
Tatars, and systematic denial of fundamental freedoms," she added.
And in a meeting with Ukrainian Finance Minister Natalia Jaresko in Washington,
Treasury Secretary Jack Lew said the United States would be ready to "increase the costs"
to Russia if it failed to comply with the terms of the cease-fire agreement.
On March 16, the European Union reiterated that it will stick to its policy of not
recognizing Russia's annexation of Crimea.
EU foreign-policy chief Federica Mogherini said in a statement that the 28-member bloc
"does not recognize and continues to condemn this act of violation of international law."
She added that the EU "will remain committed to fully implement its nonrecognition
policy, including through restrictive measures."
Mogherini also expressed concern over "the continuous military buildup and deterioration
of the human rights situation in the Crimean Peninsula, including the denial of free
speech and the persecution of persons belonging to minorities."
Germany also reiterated that it wouldn't recognize Russia's annexation of Crimea and
accused Moscow of threatening peace in Europe.
6/1/2018 Russia Celebrates Crimea Annexation Anniversary
https://www.rferl.org/a/russia-crimea-annexation-anniversary-celebrations/26903433.html 3/4
Government spokesman Steen Seibert told reporters on March 16 that Germany supports
Ukraine "within its internationally recognized border" and he accused Moscow of
threatening peace in Europe.
Seibert said Germany was also concerned about the worsening human rights situation in
Crimea, where non-Russian minorities have been targeted.
He spoke before German Chancellor Angela Merkel met with Ukrainian President Petro
Poroshenko in Berlin.
Following the talks, Poroshenko called on European leaders to make clear at a summit this
week that they would impose further sanctions against Russia if Moscow did not
implement the Minsk agreement.
"If the commitments are not fulfilled, and I really hope that on [March] 19 at the summit,
that it will be said just as clearly, then the sanctions will continue to be imposed and will
be stepped up," Poroshenko said.
Merkel said the sanctions against Russia must remain in place as long as the Minsk accord
was not properly implemented.
She accused the separatists in eastern Ukraine of not fully complying with the agreement,
saying, "There are considerable shortcomings in the separatists' compliance with the
withdrawal of heavy weapons."
In Brussels, British Foreign Secretary Philip Hammond told reporters he hoped the EU
"will have a clear political commitment to maintaining sanctions until Minsk has been
delivered in its entirety."
"It is important to send a signal to the Russians that we are united, and that we are
determined, and that they have to deliver on their commitments before they get sanctions
relief," he added.
In an interview with several newspapers published on March 16, European Council
President Donald Tusk called on EU leaders to maintain pressure on Russia with sanctions
until the cease-fire deal is fully in place.
6/1/2018 Russia Celebrates Crimea Annexation Anniversary
https://www.rferl.org/a/russia-crimea-annexation-anniversary-celebrations/26903433.html 4/4
Radio Free Europe/Radio Liberty © 2018 RFE/RL, Inc. All Rights Reserved.
"I'm skeptical about the goodwill of the Russians and I'm convinced that what's needed is
to maintain pressure," he was quoted as saying by Italian daily La Stampa.
With reporting by Reuters and dpa
Annex 1053
Tom Parfitt, Crimea, One Year On: The Night Wolves Howl for Putin, The Telegraph (17 March
2015)
By Tom Parfitt March 16, 2015
Crimea, one year on: the Night Wolves howl for Putin
telegraph.co.uk/news/worldnews/europe/ukraine/11478456/Crimea-one-year-on-the-Night-Wolves-howl-for-Putin.html
With a roar and a rumble, the Night Wolves swept through Sevastopol and parked their
motorcycles in a crescent on the edge of Nakhimov Square.
Behind them came a column of cars flying the banners of Sevastopol Without Fascism (SWF),
a group which organised the rally in this storied port on the southwest coast of Crimea.
“Look how happy people are,” said Alexander Zaldostanov, 52, the Wolves' leader, as he
dismounted and a crowd of well-wishers gathered around him. “By the will of God and through
the hands of President Putin, the years of humiliation under Ukrainian rule are over.”
On Wednesday, Russia marks the first anniversary of its annexation of Crimea, and
festivities have been taking place since the weekend.
Condemned in the West as a flagrant breach of international law, the seizure of this
Russophone peninsula from Ukraine is seen by many here as a triumph of justice and a
riposte to Western hypocrisy.
Jubilee events are taking place across the region as dissent against Moscow's rule is
smothered and militiamen confiscate businesses in an opaque nationalisation programme.
1/8
Mr Zaldostanov, also known as The Surgeon, is close to Vladimir Putin. With his scuffed
leathers and jagged neck tattoo, he is a national celebrity in Russia and the most exotic of a
new vanguard of ultra-patriots helping shore up the president's rule.
This week, Mr Putin told a television documentary that he had planned the takeover of
Crimea weeks in advance and was ready to put Russia's nuclear weapons on alert if the
conflict escalated.
In Sevastopol Mr Zaldostanov was greeted as a hero on Monday at the “Roads of the Russian
Spring” rally. A year ago, the Night Wolves helped patrol streets in the port as self-defence
groups surrounded Ukrainian military bases and government offices, and Russian special
forces began to infiltrate Crimea. That preceded a disputed referendum which approved
joining Russia on March 16, followed by the official annexation two days later.
On the square, locals rushed forward to ask for Mr Zaldostanov's autograph or to take a picture
with him. A grey-haired lady in a fluffy pink hat nestled under his arm.
“After Crimea, the life of all of Russia changed,” the biker said, to murmurs of approval from
the crowd. “Even in the world there were tectonic shifts. For the first time we showed
resistance to the global Satanism, the growing savagery of Western Europe, the rush to
consumerism that denies all spirituality, the destruction of traditional values, all this
homosexual talk, this American democracy.
“And it is this town that did it most of all, that stood up to that and changed so much - a
Stalingrad of the 21st century.”
Sevastopol has long occupied a treasured place in the Russian mind. Tsarist troops
including Count Lev Tolstoy struggled against British, French and Turkish forces in its “first
defence” during the Crimean War in the 19th century. In the second, Soviet soldiers fought off
Nazi attacks during the Second World War.
Nikita Khrushchev, the Communist leader, moved Crimea from Russian to Ukrainian control
inside the Soviet Union in 1954. When the union collapsed decades later, the region stayed
part of the new state of Ukraine, although Moscow struck a deal to keep its Black Sea Fleet in
Sevastopol.
Now a “third defence” of the city has entered local lore. In February last year, pro-Western
demonstrators took over Kiev, Ukraine's capital, and Viktor Yanukovych, the Kremlin-leaning
president, fled to Russia.
Meanwhile, in the towns of Crimea, men had began to gather in groups.
“We wanted to be ready to repel any kind of Ukrainian attack or provocation,” explained Mikhail
Nichik, a member of SWF. “We started thinking how we would defend ourselves with baseball
bats and iron bars. We figured out who'd done military service, who could give a knife-fighting
course.” Within days, self-defence units like SWF were blockading Ukrainian military bases
2/8
and government offices. Women also took part. Natalya Malyarchuk, 52, headed out with her
dog Esger, a Central Asian wolfhound, to serve at a checkpoint on the edge of the city. “I was
prepared to stand to the death,” she recalled this week.
The volunteers say they were frightened and angered by Ukrainian nationalists who promised
to subdue Crimea.
While eastern Ukraine, or Donbas, spiralled into war, there was no fighting in Crimea. Yet in
Sevastopol the “third defence” is seen through a prism of centuries of martial glory. Its
veterans wear fatigues and a medal awarded by the Russian ministry of defence.
The volunteers were not long alone. By the beginning of March “little green men” had
appeared over their shoulders - armed soldiers in unmarked uniforms sent by Mr Putin. Soon
Crimea was “returned to the motherland”, to the fury of Kiev and its Western allies.
“My father was an admiral in the Black Sea fleet,” said Mr Nichik. “He died in November 2013
just as the coup was starting in Kiev. Six months later I went to his grave and told him - Papa,
now, at long last, you are on Russian soil.'”
Across Crimea, the euphoria is not universal. With Russia's writ comes not just the primary
colours of patriotism, but the full spectrum of authoritarian rule. Since Moscow's takeover,
police and security forces have moved to intimidate independent reporters and pro-Ukrainian
activists.
Last week, three young men, Leonid Kuzmin, Alexander Kravchenko and Veldar
Shukhurdzhiyev, were sentenced to 40 hours of manual labour for holding a small gathering in
a park in Simferopol, the Crimean capital, on the anniversary of the birth of Taras Shevchenko,
the father of Ukrainian literature. During it they held up a Ukrainian flag. About 20 people
attended and some read poetry.
Two days later, Mr Kuzmin was sacked from his job as a history teacher.
“The director of the school called me into his office and told me I was an agent of the US State
Department,” he said.
On Saturday, two militiamen detained Mr Kuzmin, 24, and Mr Kravchenko, 25, as they met a
correspondent from a Polish television station. They were handed to police and taken for three
hours of questioning by officers at Centre E, a department tasked with fighting “extremist
activity and terrorism”.
“One of them took me aside and said: 'You can either behave yourself or there are two options:
deportation or prison',” said Mr Kravchenko, who wears an embroidered Ukrainian shirt as a
sign of defiance.
Journalists are also facing coercion. Earlier this month, prosecutors opened a criminal case
against an investigative reporting group with members in Simferopol for “open calls to violate
the territorial integrity” of Russia. In the offending article, the author had described Crimea as
3/8
occupied territory.
“They're searching our homes, listening to our phones,” said one reporter who in the region
who asked not to be identified. “A lot of journalists have already fled and others write under
pseudonyms. There are few real ones left who are brave enough to speak out.”
Crimea's native Tatar community, many of whom opposed the annexation and boycotted the
referendum on joining Russia, complains of repression. In the last year, five Tatars have been
found dead after going missing in mysterious circumstances and four more disappeared,
according to Ilmi Umerov, a former deputy speaker of Crimea's parliament. Two of the
community's leaders are banned from entering the peninsula.
In Simferopol, the self-defence forces that sprang up a year ago now appear a doubtful
inheritance. After the annexation, they were formalised as a “people's militia”, allowing them to
carry batons, wear uniform and take on a quasi-policing role. “The problem is that their powers
are unclear and they do what they're told, with impunity,” said Andrey Krisko, a rights activist.
The forces answer to Sergei Aksenov, Crimea's leader, who was reportedly known in mafia
circles as The Goblin in the 1990s.
Such militiamen have become increasingly visible as the footmen in a series of dubious
property seizures. A nationalisation programme began last year by focusing on the assets of
Ukrainian businessmen. It soon moved on to fill government coffers by swallowing private
enterprises worth tens of millions of pounds.
“About 35 men in black uniforms and masks and carrying truncheons barged into our head
office last month,” said Margarita Levashkina, one of 260 stakeholders in a cooperative that
runs markets, shops and food warehouses, and employs 100 people in Bakhchysaray district.
“They occupied our rooms, changed the locks and pushed us out. Then they falsified
documents and held a fake meeting to appoint a new chairman whom we'd never heard of. It
was naked banditry.”
All appeals to local police, courts and government fell on deaf ears, as did a request for help to
Mr Putin in Moscow. “I get the impression that the laws of Russia do not apply in Crimea,” said
another stakeholder. “We were robbed, plain and simple.”
In Sevastopol, a mood of elation persists.
“Yes, there may be problems ahead, but we did not do this in order to weep and whine,” said
Olga Makhonina, 38, who runs a souvenir business with her husband. “We have made our
choice to be with Russia. There's no going back to Ukraine.”
Some admit a sadness. “I was ready to stay in Ukraine if they respected our language,
respected our history and let us choose our own local government,” said Yevgeny Repenkov,
59, who rode at the front of the motor rally on his Yamaha DragStar.
4/8
“Instead, we saw this rabid nationalism and months of Molotov cocktails and an elected
president forced from power. I don't regret our decision for a minute but there is a certain
feeling of something lost.”
Mr Zaldostanov, The Surgeon, was less reflective. “The only way out of the war in Donbas, in
order for Ukraine to avoid default and chaos, is for the whole country to integrate with Russia,”
he said, before clarifying: “At least the parts that want to.”
Timeline of events in Crimea by Tom Parfitt
The events that led up to the annexation of Crimea as Russia marks the first anniversary of the
takeover
December 1, 2013
Supporters of EU integration hold a rally in the Maidan Nezalezhnosti or Independence Square
in central Kiev (Reuters)
Ukrainian police break up a protest camp in Kiev’s Independence Square over President Viktor
Yanukovich’s failure to sign a trade deal with the EU.
February 20, 2014
More than 100 people reportedly die in 48 hours as protesters and police clash in Kiev and
government snipers open fire.
February 22, 2014
5/8
gy 8 3
Viktor Yanukovych speaks in Kharkiv, Ukraine (AP)
Viktor Yanukovych flees Kiev for Russia.
February 23, 2014
Ethnic Russians protest in Sevastopol, the main base of Mr Putin's Black Sea Fleet
Thousands of people gather in the port of Sevastopol in Crimea to protest against the new
Ukrainian authorities. “Self-defence” units are formed to resist an expected attack by forces
controlled by Kiev.
February 24, 2014
A rally in Sevastopol chooses Alexei Chaly, a Russian citizen, as “mayor” of the city, a newly
created role.
February 27, 2014
Pro-Russian gunmen seize government buildings in Simferopol, the capital of Crimea. While
under their control, the regional parliament votes in emergency session to terminate the
6/8
Crimean government and appoints Sergey Aksenov as the region’s new leader.
February 28, 2014
Pro-Russian gunmen take over Simferopol airport.
Late February, early March 2014
Self-defence units surround military bases and government offices across Crimea. “Little green
men” - Russian troops in unmarked uniforms - begin to appear alongside them.
March 6, 2014
Crimean authorities announce a referendum on rejoining Russia will take place on March 16.
March 16, 2014
Crimeans vote 97 per cent in favour of rejoining Russia, according to local and Russian
authorities. The referendum is condemned as illegal in Kiev and the West.
March 18, 2014
At a ceremony in the Kremlin, Vladimir Putin, Russia’s president, announces the formal
annexation of Crimea.
March 27, 2014
The UN General Assembly approves a resolution describing the Moscow-backed referendum
that led to the annexation as illegal.
April 22, 2014
Mustafa Dzhemilev, leader of the indigenous Crimean Tatars, is banned from entering Russia
(and therefore Crimea). Many of the Tatars boycotted the referendum.
August, 2014
Crimea’s State Council approves confiscations of property in a controversial nationalisation
programme. Former “self defence” units, now legalised with quasi-police powers as a “people’s
militia”, facilitate the seizures.
March 16-18, 2015
The leader of the "Night Wolves" Alexander Zaldostanov takes part in a motor rally in
Sevastopol, Crimea
Russia celebrates the annexation of Crimea with concerts, motor rallies and parades.
7/8
8/8
Annex 1054
Thomas J. Reese & Daniel I. Mark, Losing Their Religion in Crimea, Foreign Affairs (15 April
2015)
Losing Their Religion in Crimea | Foreign Affairs
https://www.foreignaffairs.com/articles/russian-federation/2015-04-15/losing-their-religion-crimea[5/3/2018 10:27:55 PM]
Losing Their Religion in
Crimea
Russia's Restrictive Religion Laws Take Their Toll
Face
book
Twitt
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Emai
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Print
BAZ RATNER / REUTERS
…
SNAPSHOT April 15, 2015
By Thomas J. Reese and Daniel I. Mark
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“Our people survived [deportation by] Stalin,” commented a manager of
ATR, which, until April 1, was the only Crimean Tatar television station
left. “Will they not survive these current problems?” Russian authorities
had just shut it down—along with other media outlets—by refusing to
register it under Moscow’s complex religion laws.
Shutting down the station was only the latest afront. A year after
Russian President Vladimir Putin annexed Crimea, much has changed—
and not for the better—for the peninsula’s three million people,
particularly its 300,000 Muslim Crimean Tatars who are among its
original inhabitants. Reports of human rights abuses in Crimea,
including violations of freedom of religion or belief, abound. The U.S.
Commission on International Religious Freedom (USCIRF), on which
we serve, is observing in Crimea what it has long seen in Russia: The
abuse of religious communities, including those the Kremlin views as
threatening the pre-eminence of the Russian Orthodox Church’s
Moscow Patriarchate.
Once Russia took military control, it ordered all of Crimea’s 1,500
religious groups to register with Moscow in order to gain Russian legal
operating status. Russian ofcials are permitted to make lengthy
requests for comprehensive information, so the registration process can
be onerous and costly. And the stakes for registration are high:
Unregistered groups lack the status to open bank accounts, own
property, issue invitations to foreign guests, and publish literature.
Moscow is applying all of its restrictive laws in Crimea, including its
anti-extremism law, which defnes extremism as merely asserting the
superiority of one’s religious beliefs and does not require the threat or
use of violence for prosecution. This law, which USCIRF, the Council of
Europe’s Venice Commission, and other organizations have repeatedly
called on Moscow to reform, remains a major threat to religious freedom
in Russia. And now it has come to Crimea, and Kremlin-installed local
Losing Their Religion in Crimea | Foreign Affairs
https://www.foreignaffairs.com/articles/russian-federation/2015-04-15/losing-their-religion-crimea[5/3/2018 10:27:55 PM]
authorities are using it to persecute religious minorities.
For example, there have been numerous raids on Muslim homes,
mosques, and schools, and on Kingdom Halls of the Jehovah’s
Witnesses, which Moscow views as a “nontraditional” religious group
outside of Russian culture. Crimean authorities have imposed fnes for
possessing Islamic and Jehovah’s Witness texts. Authorities have also
accused the Mejlis, the Crimean Tatar representative body, of
extremism, and have harassed its members and sealed its ofce.
In addition, they have ordered nearly all Turkish Muslim imams and
religious teachers to leave Crimea and have barred two Crimean Tatar
Muslim leaders from entry. And after they shut down ATR, Ravil
Gainutdin, the head of the Council of Muftis of Russia, wrote an open
letter of protest to Russia’s communications minister and to the head of
the Russian occupation in Crimea.
Losing Their Religion in Crimea | Foreign Affairs
https://www.foreignaffairs.com/articles/russian-federation/2015-04-15/losing-their-religion-crimea[5/3/2018 10:27:55 PM]
Crimea’s Jewish community is also feeling the heat. In March of last
year, Reform Rabbi Mikhail Kapustin of Simferopol was forced to leave
Crimea after denouncing Russian actions. His synagogue had been
defaced by a swastika and, a month later, vandals defaced Sevastopol’s
monument to 4,200 Jews killed by the Nazis in July 1942.
And even Christian churches and leaders who are not afliated with the
Moscow Patriarchate have come under increasing pressure, facing abuse
and violence. Last June, the leader of the Salvation Army in Crimea, left
the peninsula after reporting repeated harassment by security agents. By
late 2014, clergy without Russian citizenship, particularly Greek and
Roman Catholics and those belonging to the Kiev Patriarchate, were
compelled to leave Crimea, and the home of the Kiev Patriarchate’s
Bishop of Simferopol and Crimea, Klyment Kushch, was burned down.
Losing Their Religion in Crimea | Foreign Affairs
https://www.foreignaffairs.com/articles/russian-federation/2015-04-15/losing-their-religion-crimea[5/3/2018 10:27:55 PM]
What is happening in Crimea today bodes ill for eastern Ukraine. In the
Donbas region, which Russian-backed separatists already control, a
4,000-man group known as the Russian Orthodox Army, which was
headed by a former Russian military intelligence ofcer, reportedly has
been attacking Protestant and Kiev Patriarchate communities and
confscating their property.
There is no question that Russia bears the responsibility. It instituted
discriminatory laws at home, and those spread to Crimea. The question
is what can be done about the problem. Certainly the international
What drives
growth in most
Caribbean
countries?
Losing Their Religion in Crimea | Foreign Affairs
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community should continue to demand that Russia withdraw from
Ukraine. It also must renew its calls on Moscow to reform its antiextremism
law, and to stop using it to harass religious minorities and
the Moscow Patriarchate’s Orthodox rivals. And supporters of the
Moscow Patriarchate must ask themselves whether their church
ultimately benefts when it is seen as a tool of Russian repression. And
with the shutdown of most media outlets in Crimea, including nearly all
Crimean Tatar media, the United States and other nations should step
up broadcasting into Crimea and especially to Crimean Tatars.
The world must remember Crimea’s religious communities and defend
the religious freedom of their members.
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Annex 1055
RFE/RL, Crimean City Cuts Off Ukrainian TV Channels (18 April 2015)
Crimean city cuts off Ukrainian TV channels
refworld.org/docid/5565ba0f32.html
Publisher Radio Free Europe/Radio Liberty
Publication
Date
18 April 2015
Cite as Radio Free Europe/Radio Liberty, Crimean city cuts off Ukrainian TV channels , 18 April
2015, available at: http://www.refworld.org/docid/5565ba0f32.html [accessed 29 May 2018]
Disclaimer This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily
endorse, its content. Any views expressed are solely those of the author or publisher and do
not necessarily reflect those of UNHCR, the United Nations or its Member States.
April 18, 2015
By RFE/RL
A file photo of a television studio in Simferopol
The main cable-television provider in the city of
Yevpatoria, in the Ukrainian region of Crimea that
was annexed by Russia in March 2014, has
stopped distributing five Ukrainian television
channels.
According to a press release by the Elas cable
operator on April 17, the 2+2, First National, STB, Ukraine, and Enter-Film channels were cut
off because they do not have registration from the Russian government.
Ukraine's Inter + is now the only Ukrianian television channel available in Yevpatoria.
Earlier this month, the de facto Russian authorities in Crimea closed down the Crimean Tatarlanguage
television channel ATR in Simferpol after it was unable to secure registration despite
applying for it repeatedly.
Amnesty International called the closure of ATR and other Crimean Tatar media "a blatant
attack on freedom of expression, dressed up as an administrative procedure" and "a crude
attempt to stifle independent media."
Link to original story on RFE/RL website
Copyright notice: Copyright (c) 2007-2009. RFE/RL, Inc. Reprinted with the permission of
Radio Free Europe/Radio Liberty, 1201 Connecticut Ave., N.W. Washington DC 20036
1/1
Annex 1056
Novosti Kryma, In Crimea, First-Graders No Longer Study in Ukrainian (24 August 2015)
[LOGO] News of Crimea
Crimea-News.net
You are here: News of Crimea (/) / Society (/obshestvo.html) / First grade students in Crimea are no longer studying in Ukrainian
(/media/k2/items/cache/295fdc87d658f559ef2cffb7fe8f65ee_XL.jpg)
First Grade Students in Crimea Are No Longer Studying in Ukrainian
24 August
2015
no comment. (/obshestvo/item/4035-v-krymu-pervoklassniki-bolshe-ne-uchatsja-na-ukrainskom-jazyke.$ html#itemCommentsAnchor)
No parents desiring to send their children to Ukrainian classes could be found among the parents of first-grade students on the
Crimean peninsula. This was announced by Natalia Goncharova, the education minister of Crimea, at a press conference, which
summarized the preparations for the upcoming school year.
As the minister said, there are no more Ukrainian schools in Crimea. There are only seventeen classes left, including the
Simferopol Gymnasium, where instruction takes place in Ukrainian. (For comparison: last year the number of students studying
all school subjects in Ukrainian was one thousand nine hundred and ninety, with 25 students to a class pursuant to Russian
law).
The number of schools in which instruction is conducted in the Crimean Tatar language has not changed and amounts to fifteen,
as in previous years. The number of Crimean Tatar classes increased by three (meaning first grade classes).
The Minister also said that there were no applications for the "Ukrainian Philology" major in the current academic year. This
major had been offered until now at the Faculty of Philology of Simferopol University (former Tavrichesky, now Federal). But
students in the senior year are still graduating from the general philology program, Natalia Goncharova emphasized. So it's not
hard to anticipate that Ukrainian philology will disappear from universities in the coming years. That is not surprising given the
current reality in Crimea and the attitude of this government to everything Ukrainian.
As reported, holding events in honor of the twenty-fourth anniversary of Ukraine's independence was recently banned in Crimea.
Also recently, unknown individuals took apart a Ukrainian floral memorial near the monument to Taras Shevchenko.
© 2018 News of Crimea. Crimean portal. All rights protected. - map of the website (/component/jmap/sitemap.html)
Annex 1057
The Economist, Back Into Exile (18 June 2015)
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Annex 1058
Andrii Ianitski, Crimean Tatar TV Back on Air, Open Democracy (30 June 2015)
6/1/2018 Crimean Tatar TV back on air | openDemocracy
https://www.opendemocracy.net/andrii-ianitskyi/crimean-tatar-tv-back-on-air 1/7
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Yeess,, pplleeaassee sseenndd mee uuppddaatteess
Crimean Tatar TV back on air
ANDRII IANITSKYI 30 June 2015
After a two-month hiatus, the world's only
Crimean Tatar TV station is back on air. Only
now it's in Kyiv, not Simferopol. на русском
языке
On 17 June, just before the beginning of Ramadan, ATR, the only Crimean
Tatar television station in the world, resumed broadcasting after two months off
air. The station is now based in Kyiv, however, not Simferopol.
Prior to the annexation of Crimea, ATR was an increasingly influential source of
news and comment on the peninsula. As one blogger from Simferopol, the
administrative capital of Crimea, says: 'Over the past few years, many people –
not only Crimean Tatars – got so used to the channel that it's hard think about
the information space without it.' Indeed, ATR became – and remains – a
symbol of the Crimean Tatars' return to their ancestral home.
Popularity has its price
About Submit Login or Register
Beyond propaganda Cultural politics Green Eurasia Migration matters Rights for all Uncivil society
6/1/2018 Crimean Tatar TV back on air | openDemocracy
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ATR became – and remains – a
symbol of the Crimean Tatars'
return to their ancestral home.
'Only we had live video from the
scene,' Islyamov boasts. 'The
whole world was watching.'
ATR started broadcasting from the Crimean peninsula in 2006. The station
initially made only short programmes, broadcasting up to two-and-a-half hours a
day. But in 2011, the television channel began a new phase in its development
following the involvement of Lenur Islyamov, a Russian businessman.
Initially, Islyamov helped ATR via
donations, later purchasing a 25%
stake in the company. After that, he
raised his stake to 97%. Refat
Chubarov, a leader of the Crimean
Tatar community, remains a minority
shareholder, as does Isa Khaibullayev, a local businessman. Today, ATR has an
authorised capital of 40m hryvnias (£1.2m).
This influx of capital allowed ATR to start broadcasting 24 hours a day.
Professional newscasters and journalists joined the team, and the channel had
correspondents in Kyiv, Moscow, and Istanbul. Original content was provided in
three languages: Russian, Ukrainian, and Crimean Tatar.
Over time, the TV station developed into a sizeable media holding, including a
children's channel, a Crimean Tatar-language radio station, a Russian-language
station, and a news site. In 2014, out of 57 channels operating on the
peninsula, ATR was the fifth most popular TV channel, and was first among
local stations.
ATR's last broadcast from Crimea, April 2015 - 'Our nation survived Stalin. Surely we will be
able to overcome today's problems'
Popularity, though, has its price. Islyamov was spending $300,000 (£190,000) a
month on the media company, which by 2014 had more than 200 employees.
But having made his money in the car trade, Islyamov, the owner of a bank and
transport company in Crimea, could permit himself the expense.
ATR reached peak popularity at the beginning of 2014, when Russian soldiers
in unmarked uniforms appeared in Crimea and began seizing the peninsula’s
infrastructure. Lenur Islyamov states that, at the time, the channel's daily
audience rose to 4.5m viewers in Ukraine, and 1.5m (out of a population of
roughly 2.3m people) in Crimea. 'Only we had live video from the scene,'
Islyamov boasts. 'The whole world was watching.'
A difficult situation
Following Russia’s formal
annexation of Crimea, ATR found
itself in a difficult situation.
Whereas ATR had previously come out against the transfer of the peninsula to
Russian control, airing such views was now illegal. The channel would either
have to change its rhetoric, or close down.
Following annexation, many of Crimea’s press outlets closed down or simply
left, including Chernomorskaya and the Center for Investigative Journalism in
Simferopol, Evpatoriya's Morion station, Sevastopol's TV and radio stations
6/1/2018 Crimean Tatar TV back on air | openDemocracy
https://www.opendemocracy.net/andrii-ianitskyi/crimean-tatar-tv-back-on-air 3/7
Briz, Ukrainian Fleet, and the Civil Defence website, as well as BlackSeaNews
(based in Yalta), and others. In their place, new, pro-Russia media outlets and
channels started operating in Crimea.
Since going off air in April, ATR has found a new studio in Kyiv.
Just as ATR decided to change its line and remain in Crimea, so did Crimean
Tatars attempt to integrate themselves into the peninsula's new institutions. The
informal parliament of the Crimean Tatars – the Qurultai – allowed Islyamov to
enter Crimea's local government (now under the aegis of the Russian
Federation.) But this experiment failed: Islyamov held the post of deputy
chairman of the Crimean government for all of two months.
Yet there are still several Crimean Tatars currently working in Russia-backed
institutions. However, they took those positions on their own initiative, without
the permission of the Tatar’s two representative bodies, the Mejlis or Qurultai.
These institutions have influence over a large portion of Crimean Tatars: for
instance, prior to 2014, Mejlis support guaranteed a 10% bump to any party in
Crimea (Crimean Tatars make up around 13% of the population).
At the same time, the new Crimean authorities began their persecution of
dissenting voices. Under various pretexts, searches were carried out in Tatar
mosques, madrassas and homes.
Crimean Tatar leaders, such as Mustafa Jemiliev, Refat Chubarov and Ismet
Yuksel were banned from Crimea. Several Crimean Tatars were detained by
Russian police on suspicion of organising mass protests on 26 February 2014 –
the day the Supreme Court of Crimea examined Crimea’s status – when the
peninsula was still under Ukrainian rule.
6/1/2018 Crimean Tatar TV back on air | openDemocracy
https://www.opendemocracy.net/andrii-ianitskyi/crimean-tatar-tv-back-on-air 4/7
'I think they would allow the station
to operate only if it became progovernment
and propagandistic.’
ATR'S current studio in Kyiv.
ATR reported on all of these issues, provoking the ire of the Crimean
authorities. In September 2014, the Russian Ministry of Internal Affairs’ Centre
for Combatting Extremism accused the television channel of promoting
extremism.
Several months later, in January 2015, police searched the station and
confiscated its servers. Then, in March 2015, Sergei Aksyonov, the selfproclaimed
head of Crimea, told RIA Novosti that 'the work of channels like ATR
on Crimean territory cannot be allowed during war time.'
Despite their attempts, ATR did not
receive a Russian broadcast licence
for its Crimean operation and
stopped broadcasting on 1 April
2015. Islyamov's other media
companies also failed to receive
licences.
As Islyamov puts it: 'I think they would allow the station to operate only if it
became pro-government and propagandistic, just like all the other stations in
Crimea.'
Goodbye, Crimea
Right up until the last moment, the station's viewers and journalists didn't
believe the station would really go off air after nine years of broadcasting. But
just before midnight on 31 March 2015, the editorial staff said goodbye – with
tears in their eyes – to their viewers.
The Crimean authorities didn't leave Islyamov much choice. In Kyiv, however,
discussions were already being held on the possibility of helping the channel
with a move to the mainland. Indeed, Ukraine's National Committee on
Television and Radio Broadcasting asked other broadcasters whether they
could re-broadcast ATR on their own frequencies. And in April 2015, President
Petro Poroshenko reported that he had given an order to 'do everything
possible to restore ATR to the air across Ukraine, including Crimea'.
As Islyamov explains, the decision to move the main team to Kyiv came soon
after: 'I realised once and for all – they wouldn't let us broadcast in Crimea.'
After all, the more time they took to re-launch the channel, the more money it
would cost.
6/1/2018 Crimean Tatar TV back on air | openDemocracy
https://www.opendemocracy.net/andrii-ianitskyi/crimean-tatar-tv-back-on-air 5/7
'Ukraine gave us freedom of
speech – that's the most important
thing.'
ATR forms part of a larger media holding, including Lale, a children's TV channel, and the 15
minutes news site.
'It [ATR] is like a blast furnace. If it doesn't work, if it isn't used, then it falls apart.
And if you want to get it up and running again later, then you'll spend more
money and more time than you did the first time,' explains Islyamov.
Although ATR cannot operate from Crimea, the channel’s Ukrainian broadcast
licence is valid until 2022. Ukraine's Ministry of Information Policy helped the
channel to find a suitable television studio to lease in Kyiv; and the Crimean
Tatar community in Ukraine's capital also assisted the channel.
The move may have come too late for some viewers though. As one former
schoolteacher based in Simferopol said, ‘It's difficult to say what the Crimean
Tatars think of this, but the majority of Ukrainians in Crimea don't even know
that the ATR has moved to Kyiv. There's no information about this in the local
media. But Ukrainians on the peninsula who use alternative sources of
information are aware of this, of course, and are pleased by this fact.’
Some Ukrainians are less enthusiastic about the move. ‘I can’t say I watched
ATR regularly, but I do have an opinion on the move from Crimea to mainland
Ukraine. It seems to me that, as with Chernomorskaya, now it’s not a Crimean
channel anymore, but a capital city channel for Crimeans. This isn’t a bad thing,
but the function isn’t the same. I think that it will soon turn into a channel that
just paints life in Crimea in dark tones, like Radio Liberty’s project about life in
Crimea,’ said one woman in Simferopol.
While the state has offered no
financial support to ATR, Islyamov is
nevertheless grateful: 'Ukraine gave
us freedom of speech – that's the
most important thing.'
'The only people who are going to think about us is
ourselves.'
Lenur Islyamov remains the main owner of ATR. And although from 1 April,
expenditure has been reduced from $300,000 per month to $100,000, Islyamov
hopes to cut costs even further.
In August 2014, Islyamov announced that he would make the ATR Group
(including ATR, Meydan radio station and the news site 15 Minutes) a jointstock
company. The plan? To sell ATR's viewers 150,000 shares for 1,000
roubles (£11), but with Islyamov retaining a controlling stake. ATR has started
showing promotional clips about itself: any viewer is welcome to come to the TV
station and declare an interest.
However, without a Russian broadcast licence, Islyamov has had to put this
project on hold. He plans to return to it in Kyiv – though details are yet to be
revealed.
I·•., '
6/1/2018 Crimean Tatar TV back on air | openDemocracy
https://www.opendemocracy.net/andrii-ianitskyi/crimean-tatar-tv-back-on-air 6/7
‘A wise man in Turkey told me I
have business in my head, and
Crimea – in my heart. It's a hard
choice.’
International grants are another possible source of financing. Speaking to
journalists, Refat Chubarov, co-owner of ATR, Rada deputy and Mejlis chief,
explained that they were counting on donors for ATR's continued existence.
And to ensure its independence, ATR will not accept financial support from the
Ukrainian government.
The issue of ATR journalists working in Crimea continues to develop – only part
of the team has made the move to Kyiv. Currently, the station's journalists
present themselves as employees of the ATR branch which is registered to
Kvinmedia, a Russian company. But though the TV station is registered as a
media organisation in Russia, it has no broadcast licence.
Journalists registered with ATR have been refused accreditation by Kryminform,
the Crimean authorities’ press centre. Indeed, it seems that ATR journalists will
continue to encounter problems operating in Crimea.
The fate of Islyamov's business in Crimea and Russia remains unclear: he
hopes to defend his business in the Russian courts. ‘A wise man in Turkey told
me I have business in my head, and Crimea – in my heart. It's a hard choice,’
he admits.
Can people in Crimea still watch
ATR? Given that the Russian
authorities haven't figured out how
to jam satellite signals (and that
satellite dishes are still legal), ATR
still has an audience in Crimea.
These signals can also be 'shared' from a single dish to multiple apartments.
Moreover, the steppe areas of Crimea are well-equipped with satellite dishes –
it's hard to receive an analogue signal here. And, of course, you can still watch
the channel online.
Islyamov laughs when I ask him about distributing free satellite dishes to
Crimeans: after all, a free satellite dish doesn't necessarily mean a loyal viewer.
'They'll watch ATR because they miss their native language, the feeling that you
and the station are on the same wave-length. After all, the only people who are
going to think about us is ourselves.'
Related Articles
The uncertain future of the Crimean Tatars
DMITRY OKREST
Moscow's Crimean Tatar problem
ILDAR GABIDULLIN
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Annex 1059
Intentionally Omitted
Annex 1060
Intentionally Omitted
Annex 1061
Mejlis of Crimean Tatars Were Not Allowed to Take Action in Simferopol to Human Rights Day
(11 December 2015)
! "#
! $ %#% &&'%!
'
()*+ ! ii Kp.Pean J
Mejlis of Crimean Tatars were not allowed to take
action in Simferopol to Human Rights Day
11 December 2015, 08:29
The Mejlis of the Crimean Tatar people informs that they received another
refusal from the authorities of Simferopol in carrying out the action timed to the
International Human Rights Day on December 10.
This was reported by the press service of the Mejlis.
As noted in the press service, the Mejlis this year traditionally planned a
December 10 rally dedicated to Human Rights Day, but in connection with the
declared emergency situation due to the energy blockade, the administration of
Simferopol made a decision in the period from November 22, 2015 to a special
order temporarily to suspend activities for holding mass, public, cultural,
entertainment and other events. Therefore, the meeting had to be abandoned.
But, as noted in the Mejlis, on November 27 in the central square of Simferopol,
pro-government public activists held an anti-Turkish rally at which participants
burned the "effigy" of the Turkish president.
"Under the circumstances, the Mejlis of the Crimean Tatar people found it
possible to file an application for a picket on December 10 near the building of
the Crimean Prosecutor's Office on the street. Sevastopol in Simferopol with
! "#
! $ %#% &&'%!
'
demands to release political prisoners, as well as to stop political persecution,
"the Mejlis reported.
However, the picket was refused on the basis of the aforementioned ban on
holding mass events.
"Similar double standards in the possibilities of realizing human rights exist
today in the Crimea everywhere," the Mejlis noted.
On December 10, a rally was held near the Russian Embassy in Kiev. Several
dozens of people took part in the event, among them members of the Mejlis of
the Crimean Tatar people, human rights activists, settlers from the Crimea and
Donbass. Activists accused the Russian authorities of the Crimea of mass
violations of human rights, in particular the persecution of Crimean Tatars. On
the same day, a similar action was held in Turkey.
UTC + 3 e Crimea.Realii, 2017 I All rights reserved.
Annex 1062
Interview with Sergey Meniaylo, the Governor of Sevastopol Published on Meduza.ru (18 March
2016)
https://meduza.io/feature/2016/03/18/nedostatki-est-s-pretenziyami-ne-soglasen
Meduza
CHATS
STORIES
“There are shortcomings, but I don’t agree with the complaints”
Interview with Sevastopol Governor Sergey Meniaylo
Meduza 12:22, March 18, 2016
[…]
[Page 20]
– It looks like pressure.
– Criminals have no ethnicity. Someone wants to play the card with “a person of Chechen
ethnicity,” “a person of Tatar ethnicity.” Have you ever once heard that a criminal was detained
and it was said that he was “a person of Russian ethnicity”? Someone benefits from this.
At one time Ukraine sent the Crimean Tatars here to counterbalance the Russian-speaking
population as a tool to make this territory Ukrainian, and then itself had problems from them.
[…]
[Page 21]
– However, they want to live on this territory.
– Less attention simply needs to be paid to this, and sometimes talk more toughly. In 2014 I did
allow them to hold their mourning [on the anniversary of the May 18 deportation]. I asked them
a question: “Dear friends, why does my granddaughter, standing in school, have to be at that
mourning lesson? What, haven’t we had enough trouble from other ethnicities? And what, will
we do this for them each time?” They complain that they are forgetting their language. Excuse
me, friends, speak your own language in your family. I, for example, speak Ossetian just as I
speak Russian. If I wanted my children to speak it, then I would speak Ossetian with my family,
you can agree.
Annex 1063
RFE/RL, Punitive Medicine? Crimean Tatars Shaken By Leader’s Confinement to Mental
Asylum (25 August 2016)
6/1/2018 Punitive Medicine? Crimean Tatars Shaken By Leader's Confinement To Mental Asylum
https://www.rferl.org/a/crimea-umerov-psychiatric-treatment-outcry-human-rights-russia-ukraine/27943461.html 1/3
UKRAINE
Punitive Medicine? Crimean Tatars Shaken By Leader's
Confinement To Mental Asylum
August 24, 2016 12:26 GMT
Charles Recknagel Merhat Sharipzhan
When a court in Russian-annexed Crimea ordered activist Ilmi Umerov to a psychiatric
clinic for a month of assessment tests, the decision sent shock waves through the
peninsula's indigenous ethnic Tatar minority.
For two and a half decades, authorities in Crimea have refrained from the routine Sovietera
practice of declaring dissidents mentally ill, condemning them to life in an insane
asylum. But now, Umerov's sentencing and subsequent confinement to a psychiatric clinic
in Simferopol suggests a return to the practice.
Crimean prosecutors first charged Umerov, the former deputy chairman of the Crimean
Tatars' self-governing body -- the Mejlis -- with separatism in May after he made public
statements opposing Moscow's seizure of the peninsula from Ukraine. Then, on August 11,
while he was under home detention during his trial, a court ordered Umerov to undergo
psychiatric testing. A week later, he was forcibly committed to Simferopol's Psychiatric
Hospital No. 1 for a 28-day period.
The forced admission to the clinic stunned Umerov's colleagues and supporters, who say
the 59-year-old community leader is anything but mentally unbalanced.
"I have known him for 30 years, I know him well," Abdureshit Dzhepparov, coordinator of
the Crimean Contact Group on Human Rights, told RFE/RL on August 22. "I may not be an
expert psychiatrist, but on the eve of his removal to the psychiatric clinic, I know that he
was without a doubt in full mental health."
! - RadioFreeEurope
RadioLiberty
6/1/2018 Punitive Medicine? Crimean Tatars Shaken By Leader's Confinement To Mental Asylum
https://www.rferl.org/a/crimea-umerov-psychiatric-treatment-outcry-human-rights-russia-ukraine/27943461.html 2/3
Umerov's sudden dispatch to a mental institution, where for the first several days he was
denied visitors or the use of a telephone, reminded many of the dark days when dissidents
in the Soviet Union simply disappeared into asylums, never to be seen or heard from
again.
"This is the first case in [post-Soviet] Crimea where they have placed a normal person in a
psychiatric hospital," said Dzhepparov. "If you do not fight against it now, and try to
change it, there could be second, third, and fourth cases...until it becomes a conveyor
belt."
Echoes Of The Past
Umerov's daughter, Aishe, told RFE/RL on August 21 that she believes the court's
intention is to break her father's spirit even before his trial is completed.
"Their major goal is to break the man to make him betray his principles," she said. "In
other words, all in the 'best' tradition of the Soviet punitive medicine. But he holds on."
Fears that Russia could be reviving the practice of committing dissidents to asylums are
fueled by other, similar cases. In one prominent example, Russian activist Mikhail
Kosenko, one of the defendants in the "Bolotnaya Square Case," was sentenced to
compulsory psychiatric treatment in October 2013. His crime was participating in a protest
that turned violent in Moscow's central Bolotnaya Square on May 6, 2012, over Russian
President Vladimir Putin's inauguration for a third term. Kosenko remained in a closed
psychiatric institution for eight months.
Umerov's sudden confinement comes despite the fact he suers serious illnesses that
require regular medical attention -- care that reportedly he is not receiving in the asylum.
He has been diagnosed with Parkinson's disease, high blood pressure, and diabetes.
Relatives say that, in the clinic, Umerov is allowed to have medication only once a day,
despite his need for more frequent doses. When his daughter visited him recently, she
found him suering from high blood pressure, dizziness, and fainting spells. She said the
food provided by the clinic is not suitable for her father's illnesses and he is only able to
eat what relatives bring, despite the fact that their visits can be up to 17 hours apart,
depending on the clinic's admission schedule.
6/1/2018 Punitive Medicine? Crimean Tatars Shaken By Leader's Confinement To Mental Asylum
https://www.rferl.org/a/crimea-umerov-psychiatric-treatment-outcry-human-rights-russia-ukraine/27943461.html 3/3
Radio Free Europe/Radio Liberty © 2018 RFE/RL, Inc. All Rights Reserved.
'Politically Motivated'
Human rights groups have protested against Umerov's detention in the asylum.
The Moscow-based Memorial human rights center called the case against Umerov "illegal
and politically motivated" as he was sentenced to the psychological tests earlier this
month.
The Kharkiv Rights Protection Group, based in the Ukrainian city of the same name,
argued on August 22 that "there are no grounds at all for the criminal charges Russia has
brought against him, nor for the supposed 'psychiatric assessment.'"
Moscow claims that Umerov fomented separatism in an interview he gave to the Crimean
Tatar television station ATR on March 19 in Kyiv. In the interview, he said Ukraine must
not change its view on Crimea and that "Russia must be forced to leave Crimea and
Donbas," a reference to the Donetsk and Luhansk regions of eastern Ukraine.
Supporters said that Umerov has never called for armed resistance within Crimea to
Russia's occupation. They also noted that his views are in line with those of most Crimean
Tatars, the majority of whom opposed the peninsula's occupation and annexation by
Moscow in March 2014.
More than 1,000 Crimean Tatars attended a prayer service for Umerov at his home in
Bakhchysarai in southern Crimea on August 22. His family reported that those in
attendance came from all corners of the peninsula.
Based on reporting by RFE/RL's Ukrainian Service
Annex 1064
RFE/RL, Russia Detains 11 Crimean Tatars (22 February 2017)
6/1/2018 Russia Detains 11 Crimean Tatars
https://www.rferl.org/a/russia-detains-11-crimean-tatars/28324645.html 1/2
UKRAINE
Russia Detains 11 Crimean Tatars
February 22, 2017 10:34 GMT
RFE/RL's Ukrainian Service
The Russian authorities in the annexed Ukrainian region of Crimea have sentenced 10
Crimean Tatars to five days of administrative arrest after convicting them of holding an
illegal public gathering.
The decision came late on February 21 after the defendants were arrested earlier the same
day while taking photographs and videos of a search conducted by Russian police in the
home of Crimean Tatar activist and lawyer Marlen Mustafayev.
Mustafayev was sentenced to 11 days of administrative arrest on the same charges as the
10 other detainees. Mustafayev's wife told RFE/RL that police confiscated her husband's
computer and some books. No explanations were given, she says.
The Kharkiv Human Rights Protection Group reported that the defendants were not
aorded legal representation.
Russia has been sharply criticized by international rights groups and Western
governments for its treatment of Crimea's indigenous Turkic-speaking, mainly Muslim
Crimean Tatar population since Moscow illegally annexed the Ukrainian region in March
2014.
Arrests, disappearances, and killings of Crimean Tatars have been reported, and Crimean
Tatar self-government organizations have been declared illegal.
! - RadioFreeEurope
RadioLiberty
6/1/2018 Russia Detains 11 Crimean Tatars
https://www.rferl.org/a/russia-detains-11-crimean-tatars/28324645.html 2/2
Radio Free Europe/Radio Liberty © 2018 RFE/RL, Inc. All Rights Reserved.
Annex 1065
Tanya Cooper & Yulia Gorbunova, Russia is Violating Crimeans’ Rights, Kyiv Post (3 May 2017)
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Annex 1066
RFE/RL, Crimean Tatar Leader Umerov Goes On Trial On Separatism Charge (7 June 2017)
6/1/2018 Crimean Tatar Leader Umerov Goes On Trial On Separatism Charge
https://www.rferl.org/a/russia-ukraine-crimean-tatar-separatism-trial/28533650.html 1/2
RUSSIA
Crimean Tatar Leader Umerov Goes On Trial On Separatism
Charge
June 07, 2017 12:06 GMT
Crimea Desk, RFE/RL's Ukrainian Service
SIMFEROPOL -- A Crimean Tatar leader who has criticized Russia's seizure of the Black
Sea peninsula from Ukraine has gone on trial on June 7.
Russian authorities who control Crimea have charged Ilmi Umerov -- deputy chairman of
the Crimean Tatars' self-governing body, the Mejlis, which was banned by Moscow --
with separatism.
Umerov was charged in May 2016, after he made public statements opposing Russia's
armed takeover of Crimea in March 2014. He denies the charges, saying he has the right to
express his opinions freely.
The 59-year-old is one of several critics of the takeover who have faced what rights
activists say are politically motivated criminal charges at the hands of the Russian state.
Dozens of relatives and supporters came to the courthouse in the Crimean capital,
Simferopol, in hopes of attending the trial.
Authorities allowed only about 15 spectators into the courtroom, citing space concerns.
Aleksandr Podrabinek, a well-known Soviet-era dissident and journalist, came from
Moscow to help defend Umerov.
! - RadioFreeEurope
RadioLiberty
6/1/2018 Crimean Tatar Leader Umerov Goes On Trial On Separatism Charge
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Radio Free Europe/Radio Liberty © 2018 RFE/RL, Inc. All Rights Reserved.
Umerov's lawyer, Mark Feigin, told RFE/RL on June 7 that it was likely to be a lengthy
trial. He said that, despite health problems, his client wanted an open trial so that he can
speak publicly about the problems faced by Crimean Tatars under Moscow's rule.
In August 2016, Umerov was forcibly sent to a psychiatric clinic for a month of assessment
tests.
The Moscow-based Memorial Human Rights Center has called the case against Umerov
"illegal and politically motivated."
Mejlis Chairman Refat Chubarov has called the case against Umerov part of a campaign of
persecution by the Russia-installed authorities against Crimean Tatars.
Russia took control of Crimea after sending in troops and staging a referendum considered
by most countries worldwide as illegitimate.
After the takeover, Russia adopted a law making it a criminal o
Volume XXVII - Annexes 1022-1092