The lead prosecutor for the International Criminal Court has for the first time said the simmering conflict in Ukraine should be considered an international armed conflict between Russia and Ukraine.
As a practical matter, the determination by Fatou Bensouda, issued on November 14, will change nothing on the ground in eastern Ukraine, where fighting between Russia-backed separatists and Ukrainian government forces has increased and decreased since April 2014 and continues despite cease-fire deals.
Nor will it change Russia's annexation of the Ukrainian peninsula of Crimea, which has been rejected by the vast majority of United Nations member states. Moreover, Russia is not a member of The Hague-based court, whose mandate includes prosecution of war crimes and related crimes. Ukraine is also not a member, though it has accepted the court’s jurisdiction on a limited basis.
But the finding, included in a report released November 14 by Bensouda's office, adds legal heft to arguments in Ukraine, and much of the West, that Russia is to blame for instigating the war.
"According to information received, the situation in the Crimea and Sevastopol is equivalent to the international armed conflict between Ukraine and the Russian Federation," the report said. "This international armed conflict started not later than February 26, when the Russian Federation employed members of its armed forces to gain control over parts of the territory of Ukraine without the consent of the government of Ukraine."
Sevastopol is a Crimean port city and the headquarters of the Russian Black Sea Fleet.
The report labels the situation in Crimea an occupation by Russian forces and highlights the plight of Crimean Tatars, who have faced persecution, kidnappings, and killings on the peninsula for their opposition to the Russian annexation.
It also concludes that shelling by both sides in eastern Ukraine and Ukraine’s detention of Russian military personnel there “points to direct military engagement between Russian armed forces and Ukrainian government forces that would suggest the existence of an international armed conflict.”
Russia has repeatedly denied its forces are involved in the conflict, despite overwhelming evidence documented by international observers, journalists, and others.
The finding that the fighting constitutes an international armed conflict could also trigger more legal scrutiny for how prisoners of war are treated, as well as heightened protections for civilians affected by the fighting.
The report was released as part of an annual accounting of the preliminary investigations that ICC investigators have conducted in 2016. Under the court's rules, if the prosecutor concludes there is enough evidence to merit a full investigation, he or she must then seek court authorization.
The United Nations says at least 9,600 people have been killed in the conflict in eastern Ukraine since April 2014 and hundreds of thousands displaced.