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National identity has long been at the heart of a multi-vector policy tool that can have both positive and negative consequences. As a basis for forming strong ties between representatives of different ethnic, religious, political groups, as well as constructing a national myth, national identity can stabilize the internal situation in the state and help eradicate discrimination. On the other hand, there are many cases in the history of the world where nationalist politics, as a way to divide society, inevitably provoked social conflicts, inflammatory rhetoric and intolerance, which ultimately led to an increase in hate crimes.
At the global level, national identity is the basis for statehood (since the 1648 Peace of Westphalia, it is possible to talk in terms of a nation-state, at least on the European continent) and an important component of economic and military campaigns. During armed conflicts, the confrontation of identities (“us – they”), inter alia, threatens to degenerate into war crimes and crimes against humanity, as can be seen in the occupied Crimean peninsula.
The concept of national identity is inextricably linked to the concept of national group. However, despite the inclusion of the latter term in a number of international treaties, today there is no common understanding of its scope and content. This piece aims to find out:
- what is a “national group”;
- whether the Ukrainian identity has a national nature;
- what is the practical significance of defining a national group to prosecute human rights violations in the occupied Crimean peninsula.
National group: political unit or historical cultural community?
According to Anthony Smith, a British researcher of the phenomenon of the nationalism, a national group is a group of people who have their own name, historical territory, common myths and historical memory, common mass culture, economy and common legal rights and responsibilities. It should be emphasized that this is one of the broadest definitions of this concept, which, at the same time, is quite clear and does not include features characteristic of other groups: racial, ethnic and religious. However, such a definition is enshrined only in theory, leaving almost unlimited margin of appreciation for domestic and international courts.
Among treaties containing the concept of national group are the Convention on the Prevention and Punishment of the Crime of Genocide of 09 December 1948 (Genocide Convention), the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (ICERD), the Statute of the International Criminal Tribunal for the Former Yugoslavia of 25 May 1993, the Statute of the International Criminal Tribunal for Rwanda of 8 November 1994 and the Rome Statute of the International Criminal Court of 17 July 1998. Such a list is due to the existence of appropriate practice of interpretation by specialized institutions, which, however, is not uniform and consistent.
The concept of “national group” was first defined by the International Criminal Tribunal for Rwanda (ICTR) in its judgment of 2 September 1998 in the case of Jean-Paul Akayesu in the context of the Rwandan genocide (6 April-18 July 1994). Based on the Nottebohm decision rendered by the International Court of Justice in 1955, the Chamber holds that a national group is defined as a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties (§512).
This interpretation is based on the concept of “effective citizenship” and, in fact, uses the Anglo-Saxon approach to understanding the term “nationality” as a relationship between the individual and the state. However, the equating of a national group with citizens seems an unjustified restriction on this definition, which may lead to a narrowing of the range of remedies for victims of international crimes committed on the basis of nationality.
The International Criminal Tribunal for the Former Yugoslavia (ICTY), instead of limiting its term as the ICTR, has limited itself to establishing the fact that an international crime has been committed on a discriminatory basis without determining the specific grounds of the wrongful act. The Appeals Chamber judgment in The Prosecutor v. Duško Tadić case of 15 July 1999 distinguished between formal citizenship (including diplomatic protection of the state) and more substantial ties with the state, in which ethnicity (and probably also religion and race) became decisive for national allegiance (§§165-166). Thus, the Appeal Chamber has defined ethnic, racial, national and religious groups as a kind of amalgam, a system of identity of a person in which each of the elements has no clear boundaries and dissolves into the other.
In a later ICTY judgment in the Ratko Mladić case of 22 November 2017, the Trial Chamber, instead of classifying victims of violations as one of the four protected groups under the Genocide Convention, simply concluded that the victims were members of “national, ethnic and/or religious “group” (§5). This approach is controversial, as it does not reflect the intentions of the drafters of relevant treaties, nor the legal meaning of the concept of “national group”. Moreover, which begs reasonable questions: if we can refer to all groups at once, is there a fundamental difference between them in international law? Does each group have its own unique features that can contribute to the progressive development of international law through the criminalization at the international level of new practices of states?
Returning to the intentions of the drafters of relevant treaties, it should be noted that in elaborating the Genocide Convention, the Sixth Committee of the UN General Assembly defined the national group as narrowly as a community of persons whose primary identity is based on their nationality. At the same time, the national group was opposed by an ethnic – cultural, linguistic or other separate community within the country or abroad. СIt should be emphasized that such definitions were adopted by 18 votes to 17, indicating the lack of a unified approach at the international level.
During the drafting of the International Convention on the Elimination of All Forms of Racial Discrimination, state delegates found that the term “nationality” has two meanings:
- social, which concerns groups of people of different ethnic and cultural backgrounds,
- legal, which concerns citizenship.
At the same time, in the ICERD, the concept of “national origin” is not limited to citizenship and includes culture, traditions and language. The developers stressed that it is much easier to determine a person’s affiliation with a state than a national group, but it is wrong to compare a political unit with a nation: a state can consist of different national groups and a nation can consist of citizens of different states.
Finally, answering the question of what a national group is: a political unit or a historical cultural community, one should not look for a clue in international law. However, when developing a legal position for trials in international judicial and quasi-judicial bodies, the rule should be used: broader content without compromising uniqueness, which encourages the search for defining characteristics of each group as such.
Ukrainians: nation, ethnicity or citizens?
Adapting the ICTY’s approach, it can be argued that Ukrainians are a nation, an ethnic group, and citizens.
Ukrainian nationality is based on the allegiance of the local population to the state, indicating strong historical ties with the territory of existence, unique culture, language combined with recognition of the diversity and features of each of the regions of Ukraine. This concept is broader than citizenship, “the legal relationship between an individual and Ukraine, which is reflected in reciprocal rights and duties”. A member of the Ukrainian national group may be a foreign citizen who has a so-called “Ukrainian roots” and shows loyalty to Ukraine. Instead, persons living in Ukraine and acquiring its citizenship in accordance with the formal requirements of the law do not automatically become members of the Ukrainian nation. This statement is also true in the context of Russian citizenship in Crimea. Crimean Ukrainians, in the circumstances created by the Russian Federation, are unable to use the Ukrainian passport, showing loyalty to Ukraine, remain an integral part of the Ukrainian nation, for which they are persecuted by the occupying authorities.
Ukrainians as an ethnic group belong to the Slavic group of the Indo-European ethnolinguistic family. According to Lyubov Krupnyk, head of the Department of Analysis of Ukrainian Statehood at the Ukrainian Institute of National Remembrance, Ukrainians are a stable community of people who have historically formed in a certain area and preserved relatively stable cultural features and ethnic identity. Ukrainians as an ethnic group are not identical to Ukrainians as a national group. The latter may include representatives of other ethnic groups.
As for the Ukrainian identity, it is not based solely on belonging to a national group or ethnic group. Ukrainian identity is not limited to state borders or citizenship, it consists not only of the titular Ukrainian ethnic group, but also of representatives of other nations and diasporas. In such circumstances, determining the Ukrainian identity of a person is actually reduced to answering two questions:
- Does the person identify himself as “Ukrainian”?
- Are there objective circumstances to identify a person as “Ukrainian” (the presence of one or more elements: connection with the territory or ethnic group; citizenship, language, culture, traditions, etc.)?
Persecution of a person in order to eradicate Ukrainian identity, as the case might be, have the characteristics of an international crime on the basis of nationality or ethnicity, or both. As there is currently no separate category of crimes in international criminal law aimed at the destruction of identity, as well as a unified definition of “national” and “ethnic” groups, in each case the court should clarify the meaning and scope of these terms. At the same time, reflecting these definitions in the legislation at the national level could greatly facilitate the work of the Ukrainian judiciary and make national justice more effective and progressive in protecting the human rights violated due to the occupation of the Crimean peninsula.
Crimean Ukrainians: who is being persecuted by the Russian Federation and for what?
Since February 2014, the Russian Federation has established effective control over the Crimean peninsula and subsequently illegally extended its own legislation to the occupied territories. From that moment on, the occupying power began a large-scale policy of forcible change of the demographic composition. One of the main instruments that Russia uses to implement this policy is the violation of the rights of the civilian population of Crimea, accompanied by discrimination on national, ethnic, linguistic, religious, cultural and other grounds. The ultimate goal of implementing the policy of forcible change of the demographic composition is the eradication of Ukrainian identity on the Crimean peninsula, which will significantly complicate its deoccupation and reintegration within Ukraine.
Despite the fact that Russia imposed its own citizenship on the inhabitants of the occupied territories in violation of international law, this step was not enough to sever ties between the Crimean people and Ukraine. Therefore, forcible passportization on the one hand is accompanied by the eradication of the Ukrainian language and culture, persecution of Ukrainian human rights defenders and journalists, discrediting and persecution of the Orthodox Church of Ukraine, and on the other – total russification of education and culture, militarization of the younger generation, nationalist propaganda in the media, creating an atmosphere of fear and lack of freedom in which any manifestation of loyalty to Ukraine could lead to dismissal, administrative or criminal prosecution.
In such circumstances, a common feature for a significant number of victims of human rights violations committed by the Russian Federation on the territory of the Crimean Peninsula is the manifestation of allegiance to Ukraine and active resistance to the occupation. These human rights violations have a special purpose – to change the demographic composition of the population, which, in turn, is aimed at consolidating the consequences of armed aggression and annexation of part of the sovereign territory of Ukraine. The existence of special intent should be considered as an aggravating factor for punishment of perpetrators, given the fact that international law does not provide for responsibility for policies of forcible change of the demographic composition as such. In addition, the mentioned special intent allows in certain categories of cases to refer to the prohibition of restrictions on human rights and freedoms for purposes other than those for which they are established.
According to the rules of international criminal law, international crimes aimed at eradicating Ukrainian identity on the territory of the occupied Crimean peninsula, prima facie, may have the characteristics of:
- a) crimes against humanity:
- persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender […] or other grounds (Article 7 (1) (h);
- b) war crimes:
- compelling a prisoner of war or other protected person to serve in the forces of a hostile Power (Article 8 (2) (а) (v);
- the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory (Article 8 (2) (b)(viii);
- Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war (in particular, cultural heritage) (Article 8 (2) (b)(xiii).
In the context of prosecution for these crimes against humanity and war crimes, the destruction of Ukrainian identity can be cited as part of intent. With regard to persecution, the motive must also be identified, taking into account previous considerations of the difference between the concepts of national and ethnic group. It should be emphasized that the determining factor in this process is the identification of a person as a member of the group only by the perpetrator of the crime, which expands the range of potential victims of persecution.
In accordance with the rules of international human rights law, violations aimed, inter alia, at eradicating Ukrainian identity on the territory of the occupied Crimean peninsula should be looked at through prism of non-discrimination. If the basis for the violation of human rights and freedoms is the victim’s loyalty to Ukraine, resistance to the occupation, the desire to preserve Ukrainian citizenship, language, culture, etc., taking into account the position of drafters of the ICERD, it is most appropriate to refer to discrimination on national grounds.
All in all
The international armed conflict is inevitably linked to the struggle for the identities of the belligerent parties. Despite the fact that international humanitarian law considers the occupation of the territory as a temporary phenomenon, Russia seeks to appropriate the Crimean Peninsula forever, for which it pursues a policy of forcible change of the demographic composition, destroying the Ukrainian identity in the occupied territories. One of the instruments for implementing this policy is discrimination against the local population, among other things, on national grounds.
Establishing defining characteristics of Ukrainians as a national group, including at the legislative level, will strengthen Ukraine’s position as a state and individuals, victims of violations, in international judicial and quasi-judicial bodies, including the International Court of Justice (Ukraine v. Russia), the International Criminal Court courts, the UN Human Rights Committee and the European Court of Human Rights. Further research on this topic, proper documentation of any violation aimed at destroying Ukrainian identity on the occupied Crimean peninsula, will also be important for the development of international law and criminalization of existing practices, including policies of forcible change of the demographic composition and ethnocide.
Implemented within the project “Information Platform” Voice of Crimea. Culture “- about Crimea honestly, qualitatively, actually” with the support of the Media Development Fund of the US Embassy in Ukraine. The views of the authors do not necessarily reflect the official position of the US government.