Taking Yanukovych to the International Criminal Court?

By Alexander Motyl


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

The third is least persuasive. Accordingly, the Putin regime is trying to destabilize Ukraine and weaken Yanukovych, in the hope, presumably, that both will be more pliant and open to the Kremlin’s machinations. But Ukraine is already unstable, Yanukovych is already in Putin’s pocket, and the Kremlin already calls the shots thanks to the neo-colonial deal it signed with Kyiv.

The second is also unpersuasive, as it ignores the fact that Chornovol’s beating is just the latest in a long string of attacks on opposition activists. It’s the Yanukovych regime, after all, that’s been beating and jailing its opponents for the last three years. There were 101 instances of physical violence against Ukrainian journalists in 2013, up from 65 in 2012. If the regime’s previous violations of human and civil rights weren’t the handiwork of rogues, why should the Chornovol incident be?

The first version—that Yanukovych’s forces are directly responsible for the Chornovol beating—is the most persuasive, both because it fits the facts and because it’s the simplest. The regime is thuggish and has been using violence and force since its inception. Yanukovych is thuggish and has been using violence and force throughout his entire career. Facing a mortal threat to their existence—the Euro Revolution—he and his regime are responding in the only way they know how. And, having no legitimacy and popular appeal, they are responding in the only way they can. If you can’t charm the people, or fool them, or buy them off, you have no choice but to beat them into submission.

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

That violence may very well continue through 2014. The Euro Revolutionaries are not about to go away, and the regime knows that its back is to the wall. Imagine that the violence becomes widespread and systematic. Yanukovych may then be open to prosecution for “crimes against humanity.” According to Article 7 of the Rome Statute of the International Criminal Court of July 17, 1998:

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

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

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

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

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