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Chatham House

Can #Ukraine appeal to the International Courts work?

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Robert Bosch Stiftung Academy Fellow, Russia and Eurasia Programme, Chatham House
Rally in support of keeping Crimea as part of Ukraine. Photo by Spencer Platt/Getty Images.

Rally in support of keeping Crimea as part of Ukraine. Photo by Spencer Platt/Getty Images.

Russia’s ongoing occupation of Ukraine’s Crimean peninsula and support of separatist hostilities in the eastern provinces of Donbas have resulted in 1.5 million internally displaced persons, 3,000 civilians killed, and a growing list of alleged violations of international law (opens in new window) and socio-economic hardship.

But Ukraine is struggling in its efforts to hold Russia accountable – either as a state or through individual criminal responsibility - as it cannot unilaterally ask any international court to give an overall judgment on the conflict.

So it focuses on narrower issues, referring them to authorised adjudication and arbitration platforms such as the International Court of Justice (ICJ), European Court of Human RightsUNCLOS arbitration, and the International Criminal Court (ICC). These options are limited, but still worth taking - and their relevance is proving to be far wider than the Russia-Ukraine conflict.

Policy of cultural eradication

In 2017, Ukraine initiated proceedings against Russia at the ICJ on the basis of two international treaties: the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), with regard to Crimea; and the International Convention for the Suppression of the Financing of Terrorism (ICSFT), with regard to Donbas.

Under the CERD, Ukraine alleges Russia has carried out a policy of cultural eradication of ethnic Ukrainians and Crimean Tatars in Crimea, including enforced disappearances, no education in the Ukrainian and Crimean Tatar languages, and the ban of the Mejlis, the main representative body of the Crimean Tatars.

Under the ICSFT, Ukraine alleges Russia has supported terrorism by providing funds, weapons and training to illegal armed groups in eastern Ukraine. In particular Ukraine alleges Russian state responsibility - through its proxies - for downing the infamous MH17 flight.

Both these treaties are binding upon Ukraine and Russia and entitle an individual state party to refer a dispute concerning them to the ICJ, but certain procedural pre-conditions must first be exhausted. These include a failed attempt to settle a dispute either through negotiations or the CERD Committee (for the CERD) or unsuccessful negotiations and arbitration (for the ICSFT).

Russia challenged Ukraine’s compliance with the pre-conditions, but the ICJ disagreed with Russia’s submission that Ukraine had to resort both to negotiations and to the CERD Committee. For the first time, the court clarified these procedures under the CERD were two means to reach the same aim, and therefore alternative and not cumulative.

Requiring states to avail of both procedures before going to the ICJ would undermine the very purpose of the CERD to eliminate racial discrimination promptly, and ensure the availability of effective domestic protection and remedies.

The relevance of this clarification transcends the Ukraine-Russia dispute. With the rise of discriminatory practices, from populist hate-filled rhetoric endangering vulnerable communities to large-scale persecution such as that of the Rohingyas, the UN’s principal judicial body is sending a clear larger message to the world: such practices are unacceptable and must be dealt with expeditiously and efficiently. If states fail to do so, there are now fewer procedural impediments to do it internationally.

The ICJ also confirmed Ukraine had complied with both procedural preconditions under the ICSFT and that it would give judgement on the alleged failure of Russia to take measures to prevent the financing of terrorism. The outcome of this will be of great importance to the international community, given the general lack of international jurisprudence on issues of terrorism.

The court’s interpretation of knowledge and intent in terrorism financing, as well as clarification of the term ‘funds’, is particularly relevant both for the Ukraine-Russia case and for international law.

As the final judgement may take several years, the ICJ granted some provisional measures requested by Ukraine in April 2017 (opens in new window). The court obliged Russia to ensure the availability of education in Ukrainian and enable the functioning of the Crimean Tatar representative institutions, including the Mejlis.

When Russia contested Ukraine’s references (opens in new window) to the alleged Stalin-ordered deportation of the Crimean Tatars (opens in new window) and the rule of law in the Soviet Union being hypocritical (opens in new window), by arguing that history did not matter, the court disagreed.

In fact, Judge James Crawford emphasized the relevance of the ‘historical persecution’ of Crimean Tatars and the role of Mejlis (opens in new window) in advancing and protecting their rights in Crimea ‘at the time of disruption and change’.

These conclusions are important reminders that the historical inheritance of injustices inflicted on vulnerable groups should be taken into account when nations address their imperial legacies.

The court’s provisional measures and Judge Crawford’s position are particularly relevant in light of Russia’s policy of the total - territorial, historical, cultural – ‘russification’ of Crimea, as they highlight the role of the historical background for assessing the alleged discriminatory and prosecutorial policy of Russia’s occupying authorities against the Crimean Tatars.

The ICJ’s judgement on the merits of this as well as other human rights, and terrorism issues of Crimea and Donbas will be an important consideration for the international community in its view of the Russia-Ukraine armed conflict and the sanctions policy against Russia.

The development of this case also has a mutually catalysing impact on Ukraine’s efforts to establish those individually criminally responsible for atrocities in Crimea and Donbas, through domestic proceedings and through the International Criminal Court.

Chatham House

What is externalization and why is it a threat to refugees?

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Ascension Island. Moldova. Morocco. Papua New Guinea. St. Helena. These are some of the far-flung destinations where the British government has considered sending asylum seekers once they have arrived in the UK or have been intercepted on their way here, writes Dr Jeff Crisp, Associate Fellow, International Law Programme, Chatham House.

Such proposals are emblematic of externalization, a migration management strategy that has won increasing favour among countries in the Global North, denoting measures taken by states beyond their borders to obstruct or deter the arrival of foreign nationals lacking permission to enter their intended destination country.

The interception of asylum seekers travelling by boat, before detaining and processing them in offshore locations, is perhaps the most common form of this strategy. But it has also been manifested in a variety of other ways, such as information campaigns in countries of origin and transit, designed to dissuade citizens of developing countries from attempting the journey to a destination country in the Global North.

Visa controls, sanctions on transport companies and the outposting of immigration officers at foreign ports have been used to prevent the embarkation of unwanted passengers. Wealthy states have also done deals with less prosperous countries, offering financial aid and other incentives in return for their cooperation in blocking the movement of asylum seekers.

While the notion of externalization is a recent one, this strategy is not particularly new. In the 1930s, maritime interceptions were undertaken by a number of states to prevent the arrival of Jews escaping from the Nazi regime. In the 1980s, the US introduced interdiction and offshore processing arrangements for asylum seekers from Cuba and Haiti, processing their claims to refugee status on board coastguard vessels or at the US military base in Guantanamo Bay. In the 1990s, the Australian government introduced the ‘Pacific Solution’, whereby asylum seekers on their way to Australia were banished to detention centres in Nauru and Papua New Guinea.

Over the past two decades, the EU has become increasingly eager to adapt the Australian approach to the European context. In the mid-2000s, Germany suggested that holding and processing centres for asylum seekers might be established in North Africa, while the UK toyed with the idea of leasing a Croatian island for the same purpose.

Such proposals were eventually abandoned for a variety of legal, ethical and operational reasons. But the idea lived on and formed the basis of the EU’s 2016 deal with Turkey, whereby Ankara agreed to block the onward movement of Syrian and other refugees, in exchange for financial support and other rewards from Brussels. Since then, the EU has also provided vessels, equipment, training and intelligence to the Libyan coastguard, providing it with the capacity to intercept, return and detain anyone trying to cross the Mediterranean by boat.

The Trump administration in the US has also joined the externalization ‘bandwagon’, refusing admission to asylum seekers at its southern border, forcing them to remain in Mexico or return to Central America. In order to implement this strategy, Washington has used all the economic and diplomatic tools at its disposal, including the threat of trade sanctions and withdrawal of aid from its southern neighbours.

States have justified the use of this strategy by suggesting that their primary motivation is to save lives and to prevent people from undertaking difficult and dangerous journeys from one continent to another. They have also argued that it is more efficient to support refugees as close to their home as possible, in neighbouring and nearby countries where the costs of assistance are lower and where it is easier to organize their eventual repatriation.

In reality, several other - and less altruistic - considerations have been driving this process. These include a fear that the arrival of asylum seekers and other irregular migrants constitutes a serious threat to their sovereignty and security, as well as a concern among governments that the presence of such people might undermine national identity, create social disharmony and lose them the support of the electorate.

Most fundamentally, however, externalization is the result of a determination by states to avoid the obligations they have freely accepted as parties to the 1951 UN Refugee Convention. Put simply, if an asylum seeker arrives in a country that is party to the Convention, the authorities have a duty to consider their application for refugee status and grant them permission to stay if they are found to be a refugee. To evade such obligations, a growing number of states have concluded that it is preferable to prevent the arrival of such people to begin with.

While this might suit the immediate interests of potential destination countries, such outcomes do serious damage to the international refugee regime. As we have seen with respect to the refugee policies pursued by Australia in Nauru, the EU in Libya and the US in Mexico, externalization prevents people from exercising their right to seek asylum, puts them at risk of other human rights violations and inflicts serious physical and psychological harm on them.

Furthermore, by closing borders, externalization has actually encouraged refugees to undertake risky journeys involving human smugglers, traffickers and corrupt government officials. It has placed a disproportionate burden on developing countries, where 85 per cent of the world’s refugees are to be found. And, as seen most starkly in the EU-Turkey deal, it has encouraged the use of refugees as bargaining chips, with less-developed countries extracting funding and other concessions from wealthier states in exchange for restrictions on refugee rights.

While externalization is now firmly entrenched in state behaviour and inter-state relations, it has not gone uncontested. Academics and activists around the world have mobilized against it, underlining its adverse consequences for refugees and the principles of refugee protection.

And while UNHCR has been slow to respond to this pressure, dependent as it is on funding provided by states in the Global North, change now seems to be in the air. In October 2020, the High Commissioner for Refugees spoke of ‘UNHCR’s and my personal firm opposition to the externalization proposals of some politicians, which are not only contrary to the law, but offer no practical solutions to the problems that force people to flee.

This statement raises a number of important questions. Can externalization practices such as interception and arbitrary detention be subject to legal challenges, and in which jurisdictions might they most effectively be pursued? Are there any elements of the process that could be implemented in a way that respects refugee rights and strengthens the protection capacity of developing countries? As an alternative, could refugees be provided with safe, legal and organized routes their destination countries?

The UN Secretary-General Antonio Guterres, who as former UNHCR chief knows all too well the plight of refugees, has called for a ‘surge in diplomacy for peace’. Indeed, if states are so concerned about the arrival of refugees, could they not do more to resolve the armed conflicts and prevent the human rights violations that force people to flee in the first place?

 

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Belarus

Seven ways the West can help #Belarus

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Outlining the key steps that government, international institutions, and NGOs can take to bring an end to the suffering of the Belarus people.
Robert Bosch Stiftung Academy Fellow, Russia and Eurasia Programme
1. Acknowledge the new reality

A huge number of Belarusians across all levels of society simply no longer recognize Lukashenka as their legitimate president. The unprecedented size and persistence of protests against his regime and the sheer scale of reports of repressive actions, torture, and even murder, mean Belarus will never be the same again.

However, current paralysis in EU policy and the absence of a comprehensive US policy are both serving as a de facto licence for Lukashenka to deepen the political crisis. The sooner policymakers realize this and act with more responsibility and confidence, the quicker the increasing repression can be reversed.

2. Do not recognize Lukashenka as president

If the international community stops recognizing Lukashenka as president, it makes him more toxic to others, including Russia and China, both of which will be reluctant to waste resources on someone who is seen as the main cause of Belarusian instability. Even if Russia still decides to save Lukashenka and financially support him, ignoring Lukashenka decreases the legitimacy of any agreements he signs with the Kremlin on collaboration or integration.

Demanding a re-run of the presidential election should also remain firmly on the agenda as functionaries within Lukashenka's system should know this international pressure is not going away until a truly transparent vote takes place.

3. Be present on the ground

In order to curb repression and establish ties with actors within Belarus, a monitoring group should be organized under the auspices of the UN, the OSCE or other international organizations to establish a presence on the ground, and to stay in the country as long as it is needed, and is possible. Governments and parliaments can send their own missions, while staff from international media and NGOs should be encouraged to report on what is actually happening inside the country.

The bigger the visible presence of the international community is in Belarus, the less brutal Lukashenka’s agencies can be in persecuting protestors, which in turn would then allow more substantial negotiations to take place between the democratic movement and Lukashenka.

4. Announce a package of economic support for a democratic Belarus

The Belarusian economy was already in bad shape before the election, but the situation is going to get much worse. The only way out is support from the international community with a ‘Marshall Plan for a democratic Belarus’. States and international financial institutions should declare they will provide significant financial assistance through grants or low-interest loans, but only if there is democratic change first.

It is essential to make this economic package conditional on democratic reform, but also that it will have no geopolitical strings attached. If a democratically-elected government decides it wants to improve relations with Russia, it should still be able to count on an assistance package.

This would send a strong signal to economic reformers who remain inside Lukashenka's system, giving them a genuine choice between a functioning Belarusian economy or sticking with Lukashenka, whose leadership is seen by many as to be responsible for ruining the country’s economy.

5. Introduce targeted political and economic sanctions

The Lukashenka regime deserves tough sanctions internationally, but so far only selective visa restrictions or account freezes have been imposed, which have little to no effect on what is actually happening on the ground. Visa sanction lists need to be expanded but, more importantly, there should be increased economic pressure on the regime. Companies which are the most important to Lukashenka's business interests should be identified and targeted with sanctions, all their trading activity halted, and all their accounts abroad frozen.

Governments should also persuade their own country’s large companies to reconsider working with Belarusian producers. It is shameful that international corporations continue to advertise in media controlled by Lukashenka and appear to be ignoring the reports of human rights violations at Belarusian companies they do business with.

Moreover, there should be a deadline set to halt all repression, or broader economic sanctions will be imposed. This would send a strong message to Lukashenka and also his entourage, many of whom would then become more convinced he has to go.

6. Support NGOs to investigate allegations of torture

There are few legal mechanisms to prosecute those thought to be involved in election fraud and acts of brutality. Nevertheless, all reports of torture and falsifications should be properly documented by human rights defenders, including identifying those alleged to have taken part. Gathering evidence now prepares the ground for investigations, targeted sanctions, and leverage on law enforcement officials in the future.

But, given that such an investigation is not possible in Belarus right now, international human rights activists should be enabled to start the process outside the country with support from Belarusian NGOs.

7. Support known victims of the regime

Even with an unprecedented campaign of solidarity among Belarusians, many people need support, especially those alleged to have suffered torture. Some media outlets claim to have lost a significant amount of revenue because advertisers were forced to pull out, and journalists arrested. Human rights defenders need funds to keep organizations running in the heat of this crackdown.

Supporting all these people and organizations will cost tens of millions of euros, but it would significantly ease the huge financial burden facing those who have opposed the regime.

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Chatham House

Domestic violence in #Ukraine - Lessons from #COVID-19

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The pandemic has shed light on domestic violence in Ukraine, mobilizing civil society to demand more nuanced policy on the issue.
Robert Bosch Stiftung Academy Fellow, Russia and Eurasia Programme, Chatham House
A protester chants slogans on a megaphone during an International Women's Day protest on 8 March 2019 in Kyiv, Ukraine. Photo: Getty Images.

A protester chants slogans on a megaphone during an International Women's Day protest on 8 March 2019 in Kyiv, Ukraine. Photo: Getty Images.

The virus of violence

During quarantine, the greater economic vulnerability of Ukrainian women has locked many of them with abusive partners. The uncertainty of personal finances, health and security in confinement has exacerbated domestic violence against women, in certain cases aggravated by the perpetrator’s war-related post-traumatic stress disorder (PTSD).

In pre- pandemic times, only one third of domestic violence victims, 78% of whom are women, reported the abuse. During the pandemic, the calls to domestic violence helplines increased by 50% in the Donbas war zone and by 35% in other regions of Ukraine.

However, more precise estimates are hard to make. This is largely because some fractions of Ukrainian society still see domestic violence as a private family matter, which will get little assistance from the police. Also, reporting from a small confinement place permanently shared with a perpetrator during the lockdown can trigger more abuse.

The COVID-19-tested legal framework

The spike in domestic violence during lockdown has intensified the debate about the inadequacy of Ukraine’s approach.

Ukraine adopted the law on domestic violence in 2017 and made such behaviour punishable under administrative and criminal law. Importantly, the law does not limit domestic violence to physical abuse, but recognizes its sexual, psychological and economic variations. Domestic violence is further not limited to a married couple or close family members, but can be perpetrated against a distant relative or a cohabiting partner.

The extended definition of rape now includes rape of a spouse or a family member as an aggravating circumstance. A special police unit has been designated to deal with domestic abuse cases. Police can now issue protection orders in prompt reaction to an offence and immediately distance a perpetrator from a victim.

The victim can also spend time in a shelter - a system which the Ukrainian government has promised to create. A special registry of domestic violence cases has been set up for the exclusive use by the designated law enforcement and social security authorities to help them be more holistically informed in building a response.

However important, the introduced legal and institutional infrastructure was slow in proving its efficiency pre-COVID-19. It is struggling even more to stand the test of the coronavirus.

Changing the established mindset takes time. 38% of Ukraine’s judges and 39% of prosecutors still struggle to see domestic violence not as a household issue. Even though the police are becoming more reactive to home abuse complaints, getting emergency protection orders is still difficult. The court restraining orders are more effective, however they require the unnecessarily protracted and humiliating procedures of proving one’s own victimhood to different state authorities.

In response to the challenges of coronavirus for women, the police spread information posters and created a special chat-bot about the available help. However, while the domestic violence helplines of La Strada and other human rights NGOs are busier than ever, the police statistics suggest that the lockdown has not catalyzed home abuse.

This could indicate a higher trust to non-state institutions and the inability of a considerable group of women to use more sophisticated communication means such as chat-bots when they cannot call the police in the presence of an abuser. This problem is exacerbated by a current  lack of shelters in rural areas, as most are located in urban settings. Overcrowded in ordinary times, the shelters’ capacity to accept survivors during the lockdown is further limited by the social distancing rules.

Istanbul Convention – The bigger picture

Ukraine failed to ratify the Council of Europe Convention on preventing and combating violence against women, better known as the Istanbul Convention, largely due to the opposition of religious organizations. Concerned that the treaty’s terms ‘gender’ and ‘sexual orientation’ would contribute to the promotion of same-sex relationships in Ukraine, they argued that Ukraine’s current legislation provides adequate protection against domestic violence. However, this is not the case.

The Istanbul Convention does not ‘promote’ same-sex relationships, it only mentions sexual orientation among the non-exhaustive list of prohibited discrimination grounds. Remarkably, Ukraine’s domestic violence law itself is against such discrimination.

The Convention defines ‘gender’ as the socially constructed roles a society attributes to women and men. Ukraine’s overcautiousness about the term is ironic at least in two dimensions.

First, the 2017 domestic violence law restates its aim to eliminate discriminating beliefs about the social roles of each ‘sex’. In doing so, the law supports the rationale of what the Istanbul Convention denotes as ‘gender’ without using the term itself.

Second,  it is exactly the constraints of the rigidly defined niches for both sexes in Ukraine that have substantially contributed to the intensified domestic violence, whether it be  war or  coronavirus-related. The lack of sustainable psychological support for traumatized veterans and the stigma of mental health struggles, especially among men, mars their reintegration to peaceful life. This often results in alcohol abuse or even suicide.

As the economic uncertainty of the war and the virus prevents some men from fully living up to their traditional socially - and self-imposed - breadwinner role, this increases the risk of problematic behaviour and domestic violence.

By diverting the focus of the debate  to the term ‘gender’ used in the Istanbul Convention, conservative groups have ignored the fact that it describes the priority already enshrined in Ukraine’s 2017 law - to eliminate discriminatory beliefs about the socially constructed roles of men and women. This has drawn away time and resources needed to protect those vulnerable to domestic abuse.

Ukraine has not addressed the pigeonholing of women and men into gendered stereotypes. This has harmed men while further victimizing women and children, especially during the lockdown. Ironically, this is leading to the undermining of the very traditional family values certain opponents of the Istanbul Convention appealed to.

Fortunately, Ukraine’s ever-vigilant civil society,  dismayed at the wave of the lockdown domestic violence, petitioned President Zelenskyy to ratify the Convention. With a new draft law on ratification, the ball is now in the parliament’s court. It remains to be seen whether Ukraine’s policymakers will be up to the task.

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