Legal Qualification of the Deportation of the Crimean Tatar People as an International Crime Against an Indigenous People

May 17, 2016

Boris Babin, expert of the Crimean Tatar Resource Center, professor, babinb@ukr.net

The legal qualification of the forced deportation of an ethnic group from the location where it traditionally resides became quite a relevant issue given the horrific acts of individual States during the course of the 20th Century. In particular, this was the policy of the USSR and of the contemporary Russian Federation as a new reincarnation of Russian imperialism with regards to the Crimean Tatar People.

Deportation of ethnic groups by the Soviets was recognized as a crime in legislation of the USSR during the last years of its existence; the illegal deportation of ethnic groups by the Soviet authorities has repeatedly been the subject of regulatory activity in Ukraine since 1992. Later, deportation of the Crimean Tatar People was recognized as genocide by a parliamentary resolution of the Ukrainian Parliament on November 12, 2015 (No. 792-VIII).

After the Soviet Union disintegrated, individual interstate agreements on the post-Soviet territory also returned to the issue of qualifying the deportation as a crime. These include the agreement on issues related to the restoration of the rights of deported persons, national minorities and peoples, dated October 9, 1992, and the agreement between the governments of Ukraine and Uzbekistan on cooperation with regards to the voluntary organized return of national minorities and peoples to Ukraine, dated February 20, 1993. This agreement continues to be in effect.

Without a doubt, the forced deportation of the civilian population is considered an international crime of international humanity law. As far back as 1863, Article 23 of the Lieber Code contained a prohibition against the forced expulsion of the civilian population to “remote regions”. Forced resettlement or deportation as a war crime was mentioned in the London (St. James) Declaration of 1942, drafted by the anti-Hitler Coalition, and in Article 6c of the Charter of the International Military Tribunal of 1945. The Judgment of the Nuremberg Tribunal refers to the deportation of the population of the occupied territories that were annexed to the German authority of that State as an international crime.

There is an issue of the scope of the forced deportations, as discussed in Article 2 of the 1948 Convention on the prevention and punishment of the crime of genocide. It does not directly provide for consideration of the deportation as a form of genocide. In order to qualify a deportation as a genocide, one must prove, at a minimum, that the intent of the organizers of such a deportation was the full or partial destruction of the relevant ethnic group as a result of the deportation and the processes directly linked to it. The thesis regarding the necessity of proving the intent of the organizers of the deportation in particular was contained in paragraph 214 of the preliminary report titled, “The Human rights dimension of population transfer, including the implantation of settlers”, drafted by the Sub-commission on prevention of discrimination and protection of minorities of the UN Human Rights Commission, dated July 6, 1993, E/CN.4/sub.2/1993/17, and paragraph 23 of the UN preliminary report of the same name, dated June 30, 1994, Document Reference E/CN.4/sub.2/1994/18.

The authors of the above-mentioned 1993 UN report noted that the general consequences of population transfers coincide with the consequences of an ethnocide, which are characterized by the implication of the government in destroying vitally important elements or resources for any individual population, nation or people by usurping control over these elements, and going as far as achieving their complete destruction (paragraph 100 of the report). The authors also mentioned that the “cumulative effects of population transfer may fall under one or more of the definitions of genocide” (paragraph 101 of the report). In paragraph 215 of the 1993 report, it was pointed out that the understanding of the government of the destructive impact of displacement for the relevant group and, at the same time, the continued participation in the implementation of such practices or the failure to take measures to prevent it makes baseless any argument regarding the absence of intent that may be presented by such government.

Characteristically, by stating in paragraph 211 that certain populations transfer cases in the 20th Century fall under the definition of a genocide, the authors of this 1993 UN report referred specifically to the examples of the forced transfers of the population by the Soviet Government in 1941-1952.

The Sub-commission resolution 1997/29, dated August 28, 1997, and titled, “The freedom of movement and population transfer”, was adopted as a result of the cited reports of 1993. The resolution stated that the practice of forced expulsions, resettlements and deportations, forcible population exchange, unlawful evacuation, “ethnic cleansings”, etc., are forms of forcible transfers that may happen between States as well as on the internal level of the country; not only do they strip this population of its right of freedom of movement, but they also threaten the peace and security of these States.

These processes of the UN system influenced the codification of international criminal law, as embodied in Articles 7 and 8 of the Rome Statute of the International Criminal Court of 1998. Therefore, the deportation of populations, depending on the circumstances of its implementation, is regarded by contemporary international law as a crime against humanity or a war crime, which is different from a genocide. As regards the deportation by the Soviet Government, it can generally be described as a crime against humanity, different from a genocide. For example, it is difficult to imagine that the USSR, having deported ethnic Armenians from Crimea, had as their aim the destruction of this ethnic group (since the USSR implemented no particular restrictions to the rights of Armenians either in 1944 or afterwards).

At the same time, it is specifically the deportation of the Crimean Tatar People that should be qualified as a genocide in the face of evidence of the intent to carry out complete or partial destruction of the ethnic group as Indigenous People, by stripping them of their ancestral homeland and by destroying their national elite beforehand during the lengthy repressions of the 1920s and 1930s.

The 1968 Convention on the non-applicability of statutory limitations to war crimes or crimes against humanity, among others, was ratified by the Ukrainian Soviet Socialist Republic on March 25, 1969. Article 1 provides for the non-applicability of statutory limitations to the serious violations of the Geneva Conventions of 1949 and to war crimes and crimes against humanity, as provided for in the Charter of the International Military Tribunal of Nuremberg, as well as to the facts of “exile as a result of armed attack or occupation” and, separately, to the facts of the genocide. In accordance with the requirements of the 1968 Convention and section 5, article 49, of the Criminal Code of Ukraine, the possibility of criminal proceedings on the facts of any deportations on ethnic grounds is not dependent on the length of time that has passed since the period of the relevant events.

In addition, the crime of deportation as a form of forced displacement cannot be considered complete when the actual forced relocation is complete. When the deported population finds itself in areas where they have been forcibly relocated, without the ability to return at their will to the territory of the previous, traditional residence, this logically amounts to the continuation of forced displacement, with an associated single intent and purpose.

A portion of the Crimean Tatar People and other deported ethnic groups still live in areas of Central Asia; opposition to their return to their historical homeland was consistently implemented by the Soviet authorities in various forms from 1944 until 1988. Beginning in March 2014, the opposition has been carried out by the authorities of the Russian Federation in the occupied territories of Ukraine. Many incidents of de facto deportation of Crimean Tatars occurred in 2014-2016, when Russian authorities forbid their entry to Crimea, or when they fabricated criminal cases under the rubric of “counter-extremism” and “counter-terrorism”, which created circumstances requiring them to depart the peninsula to save their own life and liberty.

So, the deportation of the Crimean Tatar People as an Indigenous People from their historical homeland in Crimea has not yet been completed (and is ongoing) as an international crime with no statute of limitations. Ukraine has adequate material and procedural jurisdiction for their investigation and final qualification; legal recognition that deportation constitutes genocide becomes final after the entry into effect of the decision by a competent court. In the face of ongoing occupation of Crimea by Russia, appropriate criminal investigation of the Ukrainian authorities should be advanced by the international community, UN agencies and entities, the International Criminal Court, human rights structures, historical institutions of representative and public structures of the Crimean Tatar People and other Indigenous Peoples of the world.