Why Ukraine Should Risk It All

Forget Crimea. Kiev needs to hold a referendum on secession in all its southeastern provinces.

Tensions continue to rise ahead of Crimea's vote to join the Russian Federation, scheduled to take place on Sunday. Russian troops are massing along the Ukrainian border, and a spokesman for the government in Kiev has warned of a possible "full-scale invasion from various directions." Meanwhile, President Vladimir Putin has added fuel to the fire by reportedly questioning whether Ukraine's exit from the USSR was legal. Fortunately, there's a simple way to defuse the Russo-Ukrainian conflict once and for all. Forget a single-province referendum in Crimea: Ukraine should ask the United Nations or some other neutral international organization to hold a vote on secession in all the southeastern provinces with significant Russian and Russian-speaking populations.

If that sounds outlandish or foolhardy or even politically impossible, just consider what it would accomplish. Russia insists these southeastern populations are being threatened by the "neo-Nazis" and "fascists" in Kiev. Putin insists he has the right to employ military force to defend them. Kiev -- along with most Western observers -- reasonably rejects these claims, but being right makes little difference when Moscow has the force of might on its side. According to acting Ukrainian Defense Minister Ihor Tenyukh, Russia has positioned 220,000 soldiers, 1,800 tanks, 400 helicopters, 150 planes, and 60 ships along Ukraine's eastern border. By contrast, Ukraine's infantry consists of 41,000 soldiers, of whom only 6,000 are battle-ready. In other words, if Putin were to launch an attack on Ukraine, it would swiftly succeed, although it could conceivably become bogged down in a prolonged occupation and pacification fight.

Since the relative force capability precludes a successful military defense of Ukraine by Kiev -- and a Western military intervention is unlikely as long as Russia's aggression is confined to the southeastern provinces (all bets are off if Russian tanks advance on Kiev or Lviv) -- Ukraine's government really has only one option: to remove the pretext for a possible invasion. Since Russia insists that any intervention would be motivated solely by a desire to help threatened countrymen, Ukraine should act immediately to determine just how many of its southeastern residents do in fact feel threatened enough to want independence. The provinces in question would be, from west to east: Odessa, Mykolaiv, Kherson, Zaporizhzhya, Donetsk, Luhansk, and Kharkiv. Ideally, Crimea would be added to the mix.

An internationally-conducted referendum would give the residents of these provinces the chance to speak for themselves. The organization overseeing the vote would have to be acceptable to Ukraine, Russia, and the West; the United Nations or the Organization for Security and Cooperation in Europe come to mind. Guided by international conventions, that organization should determine how high the percentage of pro-independence votes would have to be to trigger legal secession: 50 percent plus one, 60 percent, or some other figure. The referendum should be held as quickly as possible, so as to keep tensions from rising as a result of divisive campaigning. To guarantee a peaceful environment, U.N. peacekeepers should be temporarily deployed to the provinces in question. Three-person teams of international observers consisting of one European or American, one Ukrainian, and one Russian could monitor the voting. The results should be binding on both Ukraine and Russia. The question could be as simple as this: "Do you support X province's independence from Ukraine and annexation by the Russian Federation?" Since both Russia and Ukraine insist that the local populations support them, a referendum would call their bluffs.

There is actually a precedent for this kind of procedure in recent Soviet history. On March 17, 1991, Soviet voters were asked to vote on the following question: "Do you consider necessary the preservation of the Union of Soviet Socialist Republics as a renewed federation of equal sovereign republics in which the rights and freedom of an individual of any nationality will be fully guaranteed?" Seventy-one percent of Ukrainians voted yes. Ukrainian voters were also asked: "Do you agree that Ukraine should be part of a Union of Soviet sovereign states on the basis of the Declaration of State Sovereignty of Ukraine?" Eighty-two percent said yes. Although the referendum proved inconclusive -- the August putsch followed soon thereafter, Mikhail Gorbachev effectively lost power, and Ukraine declared independence on Aug. 24 -- it is certainly still remembered in Ukraine and could serve to legitimate a new vote.

The results of a referendum in Ukraine's southeastern provinces should be acceptable to Russia, but it's a gamble. The will of the people will have been heard, and if, as Moscow insists, it is pro-Russian, the Russian Federation will have the opportunity to annex a few territories. If it is not pro-Russian, then Moscow will have to recognize that its claims of persecution are unfounded.

Ukraine should also be satisfied with such a procedure, both because a Russian invasion of mainland Ukraine looks more likely with every day and because mid-February polling data suggest that none of the southeastern provinces has more than a third of its voters supporting unification with Russia. If these provinces choose to stay, then Russia will no longer be able to claim that they are oppressed. If pro-Russian sentiment grows exponentially in the immediate future and some provinces choose to leave, then Ukraine's stability and security will only be enhanced by the departure of regions with fifth columns that exceed 50 or 60 percent of the population and that, as a result, could not be defended from Russian aggression.

The referendum could be capped with a broad treaty between Russia, Ukraine, the European Union, and the United States in which all sides agree to respect the referendum's results in perpetuity. Russia and Ukraine would also agree to respect each other's sovereignty, independence, and territorial integrity, to provide for minority rights (especially in the disputed southeastern provinces), to refrain from threatening actions, and to respect each other's choice of domestic policies and international orientations.

The results would insulate Ukraine from further Russian aggression -- and they should satisfy Putin that large numbers of southeastern Ukrainians aren't being held hostage against their will. Unless Putin intends to swallow all of Ukraine and thereby declare war on the entire post-war international order, he should appreciate that only such a referendum would produce legal and legitimate outcomes, and not internationally unrecognized statelets and frozen conflicts at best, and a land war, a lengthy occupation, and the certainty of protracted conflict at worst.



Blind Spot

Why do convictions for the world’s worst crimes neglect survivors of rape?

The village of Bogoro, in the Democratic Republic of Congo, is a place swathed in green, dusted with orange earth, and studded with gold deposits. In the early morning of Feb. 24, 2003, at least 200 people in Bogoro were massacred by the Patriotic Resistance Forces of Ituri, or FRPI, a rebel group headed by a man known as Simba ("lion" in Swahili). When they weren't shot, victims were allegedly sliced with machetes -- a mode of killing, also used in the Rwandan genocide, which saves precious bullets. In the course of the Bogoro massacre, as in so many mass atrocities in Congo's never-ending conflict, women were also raped; some were even taken as sexual slaves.

But unlike in most cases of inhumane acts carried out against Congolese civilians, there was a chance for justice this time. Germain Katanga, the now 35-year-old former leader of the FRPI, was brought to the International Criminal Court (ICC) in 2007 and tried on charges of murder and attacking civilians. He was also charged for acts of rape, sexual slavery, and the use of child soldiers by his troops.

On Friday, March 7, Katanga was found guilty as an accessory on charges of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property, and pillaging). But he was acquitted of charges pertaining to sexualized violence.

It is hardly the first or the last time someone in Congo, or Africa, or the wider world, has walked away from charges of rape that appeared to have occurred under his watch.

Understandably, the global community of advocates working to end sexualized violence is tired of seeing warlord after warlord get away with rape but not with murder. Justice for crimes against women always seems to come last in the long, slow line of convictions and reparations for the world's worst abuses, handed out like crumbs of bread.

In a statement, Brigid Inder, the executive director of the Women's Initiatives for Gender Justice, an international organization advocating gender-inclusive justice both at and through the ICC, called the Katanga decision "devastating" for the victims of the Bogoro attack and other attacks by Katanga's militia. And in an interview, Jody Williams, a Nobel laureate and chair of the Nobel Women's Initiative, said that while Katanga's conviction for war crimes is a "step forward for those who seek to repair divisions within the Democratic Republic of Congo, justice has once again been denied to survivors of sexual violence perpetrated by Katanga's forces."

"Katanga's acquittal on charges of rape and sexual slavery sends a chilling message to survivors of rape and gender violence worldwide," Williams added.

Chilling yes, but also inevitable, given the legal interpretation of a certain form of accomplice liability under the Rome Statute, the ICC's governing document. So said Patricia Sellers, a former legal advisor for gender at the tribunals set up for the former Yugoslavia and Rwanda and a fellow at Oxford University in international criminal law, in an interview after the Katanga verdict was issued.

ICC prosecutors framed the massacre, including the rape and sexual slavery, as one that was supposed to "wipe out" the population of Bogoro. In the final judgment, however, the sexualized crimes were considered to be "opportunistic" -- happenstance to the larger plan to flatten the village. Under the Rome Statute, the ICC cannot convict a militia leader for indirect perpetration of "inevitable" or foreseeable crimes like rape that aren't obviously planned. Moreover, the tribunal found that while Katanga was the militia's leader, he wasn't liable for all his troops' crimes, partially because the organization didn't have a strong central command structure. (Think of it like this: The president of Ford Motor Company isn't necessarily liable for accidents due to defects in his cars produced by a bunch of guys at a single factory.)

"The legal interpretation of indirect responsibility under the Rome Statute does not allow for liability for crimes outside of what the chamber held to be the common plan [to overrun the village] -- in this instance, the sexual violence," Sellers said. "They couldn't convict based upon their factual findings and their interpretation of the liability provisions of the Rome Statue."

Rape, in other words, is still seen at the ICC as an opportunistic consequence of war, not something potentially predictable -- a blind spot on the part of the court. This view also falls somewhat behind the legal curve, in comparison to the International Criminal Tribunal for the former Yugoslavia and the one for Rwanda (the ICTY and ICTR, respectively), which use international customary law (broader than the provisions of the Rome Statute) to make their decisions. Sellers pointed out that the recent appellate cases of Djordjevic and Sainovic at the ICTY reversed acquittals on rapes and sexualized violence, "holding that they were the natural and foreseeable consequences of attacks against a Kosovo population in those cases." 

"As much as people say 'rape is a weapon of war,' it's not like people write manuals on how to rape," Sellers said, explaining how the lack of so-called hard evidence creates legal barriers to justice. "Under certain circumstances, it's a natural, foreseeable consequence of taking over a town. That's what the ICTY and ICTR have taken into account."

Of course, sexualized violence in a war context can be carefully thought out, as in the "rape camps" of the Bosnian war, or it can be unexpected and suddenly inflicted. And scholars have found that it certainly isn't always inherent to conflict. But, as Sellers noted, sexualized violence can also become a predictable pattern in a conflict's structure, and should be recognized as such, when it happens, by the ICC and other courts.

Women's rights advocates are frustrated by the lack of international convictions for rape, especially given the long, slow road they've had to travel to even put sexualized violence on the world's roster of the worst crimes deserving of punishment. (Rape was only acknowledged as a crime against humanity in 1998 in the Akayesu case at the Rwanda tribunal.) "How is it that survivors of rape can have their attack acknowledged by the international community while at the same time justice does not apply?" asked Williams.

Survivors of the Bogoro massacre and others like it in Congo are certainly unlikely to find justice at home. Impunity still reigns in the "rape capital of the world" nearly two decades into the country's war. Multiple survivors of sexualized violence recently told me during a reporting trip that they had no reason to go to the police or courts because "nothing will be done."

(According to Amnesty International, the Katanga case "relates to only a very small fraction of the crimes under international law committed in the DRC over the past years," yet the decision can now be used to "focus the DRC authorities on addressing the enormous 'impunity gap' for egregious crimes committed against its people.")

Advocates tend to agree that not enough has been done when it comes to mass sexualized atrocities against both women and men in war -- and not only in Congo. Consider Syria, where crimes, including rape, have been widely documented yet no one knows how to move forward on prosecuting perpetrators. The U.N. Security Council is currently deadlocked on a referral for human rights violations to the ICC because Russia won't support a vote, but even if cases make it to The Hague, there's no guarantee that victims of rape will get a fair deal.

We know that people who are raped need justice. We know theoretically how to get it. Yet the international legal system is lagging behind.

In acknowledging that sexualized crimes occurred but not convicting for them, Sellers said, the Katanga case gave "less than half an inch" in the ongoing struggle to make sure that victims of rape in conflict are recognized and heard, and their aggressors punished. "Energies need to go into looking at how, factually, sexual violence occurs," she said, "and the gendered nature of how we interpret modes of liability."