Kyiv, November 25, 2015. In the preliminary report issued on November 12, the International Criminal Court (ICC) Prosecutor finds that, at this stage, there’s no efficient evidence to conclude that the crimes against humanity were committed on Maidan protests. The Report on Preliminary Examination Activities is issued every year and addresses the Prosecutor’s findings on all of the preliminary examinations going on at the moment. It is not a final decision. This was announced by the Matthew R. Crowe, barrister and, Global Rights Compliance, LLP consultant at a press-briefing at Ukraine Crisis Media Center.
According to Mr. Crowe, as of now, the Prosecutor received about 20 communications, which is the information about the alleged crimes on Maidan in the period between November 21, 2013 and February 20, 2014. “To put this relatively small number of 20 into context, the Prosecutor actually received 3854 communications about Georgia in 2008. On average, that is around 550 per year. And it’s a quite large sum compared to Ukraine’s 20,” he pointed out.
Mr. Crowe explained that there are four “main ingredients” that have to be met to prove there was a crime against humanity. First, there have to be an act outlined in article 7 of the Rome Statute: murder, torture, persecution etc.; the act was committed “as part” of a “widespread or systematic attack”; the attack is directed against any civilian population: there was a policy of the state to attack civilian; and the perpetrator has knowledge of the attack. From there, the Prosecutor did find that three out of four criteria were met. Based on the limited information available to the ICC, she concluded that at this stage, insufficient evidence exists to conclude that the attack pursuant to a state policy was either widespread or systematic. “To be “widespread” the attack must be on a large scale, it has to be massive, frequent, carried out collectively, there have to be multiple victims” Matthew Crowe clarified. In this regard, the Prosecutor believes that at this time there’s simply no enough information to support the claim that the attacks had sufficient intensity and geographic scope to consist a crime against humanity.
The alternative requirement is the attack have to be “systematic”. That implies the organized nature of the act and existence of a coordinated plan, it means that the violence was not random but deliberate, that there was a certain pattern. “The reasoning for the Prosecutor to find that there is insufficient information to state that the attacks were systematic is difficult to understand”, Mr Crowe stated. He went on explaining that “on one hand, she appears to say that there was a campaign, a state policy to attack the protestors, but on the other hand, she goes on claiming that the attacks were not systematic, because the acts followed an irregular pattern and no coordinated plan. It is somewhat hard to reconcile.”
Thus, as for now, there is cannot be crime against humanity on Maidan. However, Mr. Crowe believes the ICC Prosecutor can change her preliminary assessment, as soon as she receives new, sufficient information that can support the statement of “widespread or systematic” attacks. “The door is not closed on the issue of crimes against humanity on Maidan. That should be an encouragement for the civil society and for the stakeholders to assist the ICC Prosecutor in revisiting her view,” he emphasized. In this regard, Mr. Crowe suggested concentrating the efforts on the three following issues. That the acts of violence were against a larger group of victims and/or covered a larger geographical area; That they were constituted of sufficiently serious acts of violence; and that the acts of violence were the result of a planned and calculated methodology or system and not merely the result of panicked, excessive or indiscriminate responses to the protest movement or other fast moving events.