Ivan Lishchyna: “The ECHR is one of the best in­ter­na­tional in­sti­tu­tions to help Ukraine es­tab­lish Rus­sia's ag­gres­sion”

“The ECHR is one of the best in­ter­na­tional in­sti­tu­tions to help Ukraine es­tab­lish Rus­sia’s ag­gres­sion”

The Ukrainian Week - - CONTENTS - In­ter­viewed by Yuriy La­payev

Deputy Jus­tice Min­is­ter on of­fi­cial ev­i­dence of the pres­ence of Rus­sian troops in Ukraine and Ukraine's plans to use it

To find out what of­fi­cial ev­i­dence of the pres­ence of Rus­sian troops on Ukrainian soil Ukraine has and what this ev­i­dence might help es­tab­lish, The Ukrainian Week talked with Deputy Jus­tice Min­is­ter and Om­buds­man to the Euro­pean Court of Hu­man Rights, Ivan Lishchyna.

What of­fi­cial ev­i­dence about the Rus­sian Fed­er­a­tion’s in­volve­ment in the con­flict has been sub­mit­ted to the Euro­pean Court of Hu­man Rights so far?

— Be­fore we start, it’s im­por­tant to un­der­stand the pur­pose of this process. The first ques­tion is what we are try­ing to achieve and why this case is be­ing sub­mit­ted to the ECHR. This Court has de­vel­oped an ap­proach specif­i­cally for cases when one mem­ber of the Coun­cil of Europe has taken over the ter­ri­tory of an­other mem­ber coun­try. Our case is not the first such case, so the ECHR has es­tab­lished prac­tice in this area. In ac­cor­dance with in­ter­na­tional law, ev­ery coun­try is re­spon­si­ble for all the ter­ri­tory over which it has ju­ris­dic­tion.

This is a gen­eral rule, but there is one ex­cep­tion to it. It goes like this: if a coun­try loses part of its ter­ri­tory, then it is no longer re­spon­si­ble for neg­a­tive du­ties to­wards that ter­ri­tory, that is, the duty not to vi­o­late the Euro­pean Con­ven­tion on Hu­man Rights. If a coun­try has ex­panded its ter­ri­tory by adding parts of an­other, for the ECHR it’s ir­rel­e­vant how this hap­pened, whether this was done legally or il­le­gally, but it must en­sure the ap­pli­ca­tion of the Euro­pean Con­ven­tion on Hu­man Rights across that ter­ri­tory.

And so, I be­lieve that the ECHR is the one of the best in­ter­na­tional in­sti­tu­tions that can help Ukraine es­tab­lish that there re­ally has been Rus­sian ag­gres­sion. The Court it­self won’t do this, but it will con­firm that some coun­try has over­all ef­fec­tive con­trol over a spe­cific ter­ri­tory. This is a spe­cial term that was de­vised by the ECHR it­self for these kinds of sit­u­a­tions. It will es­tab­lish that the Rus­sian Fed­er­a­tion has ef­fec­tive con­trol over a part of the ter­ri­tory of Ukraine, which es­sen­tially amounts to oc­cu­pa­tion.

For us, this is very im­por­tant be­cause this will be a fact es­tab­lished by a body with in­ter­na­tional ju­ris­dic­tion and not by mere po­lit­i­cal dec­la­ra­tions. For in­stance, this same fact was es­tab­lished in re­gard to Transnis­tria and Moldova is now pre­par­ing a claim against the Rus­sian Fed­er­a­tion re­gard­ing its il­le­gal oc­cu­pa­tion of part of Moldova’s ter­ri­tory based specif­i­cally on a rul­ing by the ECHR.

The Court it­self uses a num­ber of cri­te­ria that es­tab­lish whether or not there is con­trol. The first and most im­por­tant one is the pres­ence of for­eign mil­i­tary or boots on the ground. In this man­ner, the ECHR con­firmed that Turkey con­trols North­ern Cyprus and Rus­sia con­trols Transnis­tria.

But in a re­cent case called Chi­ragov and Others vs Ar­me­nia, the Court ruled that even in a sit­u­a­tion where there is no con­fir­ma­tion of boots on the ground, the ter­ri­tory can be deemed to be ef­fec­tively un­der out­side con­trol if it can be proved that there are tight po­lit­i­cal or eco­nomic ties be­tween it and a third state. The ECHR was un­able to state with com­plete con­fi­dence that there are Ar­me­nian sol­diers in Nagorno-Karabakh, but it was able

to es­tab­lish that this re­gion is tied to Ar­me­nia through such eco­nomic, po­lit­i­cal and other links that ef­fec­tively they are one state.

How use­ful might this be in a case when a hy­brid war is be­ing waged that uses sol­diers with no iden­ti­fy­ing mark­ings on their uni­forms?

— This is pre­cisely what dis­tin­guishes the case of Don­bas from sim­i­lar suits re­gard­ing Crimea, where the Krem­lin has com­pletely ac­knowl­edged its con­trol. In the case of “DPR” and “LPR”, how­ever, it keeps in­sist­ing “We aren’t there.” That makes the task harder—and more in­ter­est­ing. We have to prove the pres­ence of mil­i­tary and if we don’t suc­ceed, then we have to pro­vide ev­i­dence of close links.

We are pro­vid­ing ev­i­dence of Rus­sian boots on the ground through tes­ti­mony from those who have seen Rus­sian sol­diers, talked with them or cap­tured them. Where pos­si­ble, we pro­vide video ma­te­ri­als. We ac­tu­ally tracked down the au­thors of all the videos on YouTube and ques­tioned them, mean­ing we aren’t just of­fer­ing clips off the in­ter­net, but also a real per­son who pro­vided no­ta­rized tes­ti­mony ex­plain­ing the video. Ev­ery­thing has been pre­sented as fully as pos­si­ble to pre­vent any future chal­lenges to its fac­tu­al­ness.

In ad­di­tion to that, we have pro­vided a mil­i­tary assess­ment of events in Ilo­vaisk, the fact that the Rus­sian army was used, which units they were and when they en­tered the area. There is also mil­i­tary tes­ti­mony from those who were serv­ing at the bor­der and were at­tacked from Rus­sian ter­ri­tory. We have in­for­ma­tion from the mil­i­tary prose­cu­tor about both the gen­eral na­ture of events that took place and spe­cific tes­ti­mony that it col­lected dur­ing its own in­ves­ti­ga­tions.

An­other source were the bor­der guards. They have pro­vided very de­tailed doc­u­men­ta­tion about ar­tillery at­tacks, hour by hour, the di­rec­tion the shoot­ing came from and where it landed. In fact, it was thanks to this in­for­ma­tion that I learned that tac­ti­cal bal­lis­tic mis­siles, likely the Tochka, were launched against Luhansk Air­port. Their in­for­ma­tion also shows that there was not just the odd over­flight but ac­tual at­tacks by Rus­sian mil­i­tary he­li­copters against bor­der sta­tions.

How much of the ev­i­dence you have col­lected came from non-gov­ern­ment or­ga­ni­za­tions?

— Some of the data we were given came from In­for­mNa­palm, an in­ter­na­tional vol­un­teer in­ves­tiga­tive com­mu­nity. This is very se­ri­ous in­for­ma­tion about spe­cific cat­e­gories of weapons, when and where they were found, to­gether with pho­to­graphs and af­fi­davits. We also have de­tailed in­for­ma­tion from Belling­cat that we didn’t sim­ply down­load from the in­ter­net but talked to Eliot Hig­gins him­self. He also tes­ti­fied un­der oath in the UK re­gard­ing his in­ves­ti­ga­tions and the method­ol­ogy used in his re­search.

What about ma­te­rial ev­i­dence?

— The mil­i­tary prose­cu­tor has pro­vided in­for­ma­tion about cap­tured weapons, both a gen­eral list and more de­tailed de­scrip­tions of in­di­vid­ual items. If nec­es­sary, we’re pre­pared to bring the weapons to the Court. We have ex­am­ples of those weapons that were not made in Ukraine and were never sold here, with af­fi­davits from the mil­i­tary prose­cu­tor about the fact that they were not in Ukraine’s arse­nal.

The most in­ter­est­ing as­pect is the cap­tured sol­diers. We have data about them from the SBU, such as the para­troop­ers who “got lost” and their in­ter­ro­ga­tions. We also have tes­ti­mony from those peo­ple who ac­tu­ally cap­tured them. These wit­nesses made the first videos that we later looked for on YouTube. I think that all the more-or-less known cases of cap­tured Rus­sian sol­diers have been dis­closed to us.

The same is true of the cap­ture or de­struc­tion of mil­i­tary equip­ment to­gether with any avail­able doc­u­men­ta­tion. In ad­di­tion, we made a se­lec­tion of all crim­i­nal cases in­volv­ing Rus­sian cit­i­zens who were cap­tured in com­bat.

TES­TI­MONY FROM UKRAINIAN COL­LAB­O­RA­TORS PRO­VIDED IN­FOR­MA­TION ABOUT WHAT IN­STRUC­TORS FROM THE RF ARMED FORCES TAUGHT THEM.

WE HAVE TWO WIT­NESSES FROM THE OTHER SIDE

I should add that there’s also tes­ti­mony from Ukrainian col­lab­o­ra­tors who have pro­vided in­for­ma­tion about what in­struc­tors from the RF Armed Forces taught them. We have two wit­nesses from the other side. One of them gave him­self in, the other was taken in by the SBU. Ac­cord­ing to what they’ve stated, the com­man­ders at the bat­tal­ion or sep­a­rate com­pany level, and all the HQs are staffed by Russians.

What’s the strat­egy with re­gard to the sec­ond cri­te­rion, the ev­i­dence of po­lit­i­cal or eco­nomic ties?

— Here we’re talk­ing mainly about the sup­ply of arms and equip­ment. Be­yond that, the Rus­sian ser­vice­men who are ei­ther com­mand­ing of­fi­cers or in­struc­tors, or act as “mil­i­tary ad­vi­sors”.

In this as­pect it’s go­ing to be im­por­tant to show clear links be­tween this en­tire struc­ture, which ex­ists both in the pseudo-re­publics and in the RF, to show that even if there is no mas­sive mil­i­tary pres­ence, this is nev­er­the­less a part of the Rus­sian army. They have the same ti­tles, uni­forms and sys­tem. And if there is a first and sec­ond “DPR/LPR” army corps, there should be some­thing above them. These aren’t the “Donetsk” and “Luhansk” corps be­cause, log­i­cally, they’d then be­long to coun­tries by those names.

Sep­a­rate from this is ev­i­dence of eco­nomic and po­lit­i­cal ties. Here we have taken in­for­ma­tion re­gard­ing such things as the sup­ply of Rus­sian rubles. We also asked man­agers how ex­actly it’s or­ga­nized. From what I un­der­stand, it’s a com­pli­cated sys­tem be­cause one part is held by the FSB, an­other is man­aged by the GRU, some bits are sub­or­di­nated to the RF Pres­i­den­tial Ad­min­is­tra­tion, and others are un­der the Rus­sian Gov­ern­ment. There’s a Duma com­mit­tee with a hard-to-un­der­stand ti­tle that in reality is the shadow gov­ern­ment. It dis­cusses com­pletely spe­cific and con­crete is­sues re­gard­ing the ad­min­is­tra­tion of ORDiLO.

The next point is the pro­vi­sion of en­ergy. For­tu­nately, this kind of in­for­ma­tion is open and we have of­fi­cial no­tices from Naftogaz Ukrainy which was billed (by Gazprom – Ed.) for the de­liv­ery of nat­u­ral gas and oil to the oc­cu­pied ter­ri­to­ries. All the rel­e­vant state­ments of Rus­sian politi­cians are also be­ing col­lected in a spe­cial file and all their moves are be­ing noted.

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