Russia has still not returned the three Ukrainian naval boats seized during its attack in the Kerch Strait on 25 November 2018. This is in direct breach of the binding order issued on 25 May 2019 by the International Tribunal for the Law of the Sea [ITLOS], yet Sergei Tsekov from Russia’s Federation Council has asserted that Ukraine “must admit provocation” to get the vessels back. There was no ‘provocation’, only an act of aggression from Russia, but Ukraine’s State Bureau of Investigations is inexplicably helping Russia push its false narrative.

Tsekov’s pronouncement cannot be considered an official statement from Russia, but it does follow the line which Russia took from the outset. Moscow’s claim that its act in opening fire on Ukrainian naval vessels in international waters and its seizure and 10-month long imprisonment of 24 Ukrainian prisoners was in response to Ukrainian ‘provocation’ was dismissed by the international community. Even before the ITLOS ruling, the Office of the UN High Commissioner for Human Rights had clearly stated that Russia had been in breach of international humanitarian law and that the 24 Ukrainians seized on 25 November 2018 were prisoners of war (details here).

The 24 POWs were returned to Ukraine on 7 September 2019, however this was not strictly in compliance with the ITLOS ruling, as the men were made part of an exchange of prisoners (in which Ukraine, controversially, handed over to Russia Ukrainian MH17 suspect / witness Volodymyr Tsemakh). Nor did their release even meet all the requirements of the ITLOS order which also mentioned the vessels.

Moscow doubtless understands that ITLOS orders cannot be flouted with impunity.

The trouble in this case is that Ukraine’s State Bureau of Investigations [SBI] appears to be providing it with help. The news back on 21 May that SBI had registered allegations of state treason against former President Petro Poroshenko over the seizure of the vessels and men had seemed offensive but laughable. As reported, the allegations were made by Andriy Portnov, an aide to former President Viktor Yanukovych and, at one stage, First Deputy Head of Yanukovych’s Presidential Administration. Portnov is named in the ‘Glazyev Tapes’ as having helped to drawn up a supposed ‘resolution’ from the Crimean parliament aimed at concealing the real nature of Russia’s invasion and annexation of the peninsula. If true, this would certainly justify charges of treason against Portnov, so the fact that he had demanded an investigation into Poroshenko’s supposed ‘treason’ had seemed astounding.

So too were the allegations which seemed to parrot the claims made by the Kremlin. Portnov claimed that Poroshenko had essentially ‘provoked’ Russia’s attack on three naval boats in November 2018, and made his so-called ‘report of crimes’ publicly available . The claims are dotted with hypotheses. Portnov notes that after an emergency session of Ukraine’s National Defence and Security Council, Poroshenko initially asked the Verkhovna Rada to declare martial rule throughout Ukraine for two months. This would have clashed with the beginning of the presidential election campaign, due to begin on 31 December 2018. Had this happened, Portnov’s arguments might have had some validity. In fact, protests led to Poroshenko changing the request for martial rule lasting only one month and only covering 10 oblasts. Most importantly, Poroshenko never sought to have this martial rule extended. Portnov has claimed that the events on 25 November “were the result of planned and illegal actions” by Poroshenko whose actions were supposedly “aimed at deliberately provoking aggressive and predictable actions by the Russian military during a tense situation and causing losses to the Ukrainian Navy.”

“According to the plan by P.O. Poroshenko and the organized group that he headed, the provoked incident was supposed to lead to high-profile consequences and the possibility of asserting Russia’s open aggression against Ukraine in the Sea of Azov and, as a consequence, asserting that there were grounds for imposing martial rule.”

The end result, Portnov claims, was that Poroshenko would be able to “council and postpone indefinitely” the elections since these cannot be held during martial rule. Poroshenko’s “criminal plan”, he asserts, was to effectively seize power, impose all kinds of restrictions on the media, civic rights, the activities of opposition politicians, etc. etc. “

None of this happened, yet that did not stop Portnov from making allegations of treason against Poroshenko.

More bafflingly, it has not persuaded SBI to terminate this extraordinary ‘investigation’. Ilya Novikov, one of the lawyers representing the 24 POWs, recently asked the Director of SBI, Roman Truba “if SBI understands that their investigation into the seizure of the boats in the Kerch Strait is effectively based on the same version as that presented by Russia (that the reason for the incident was military provocation from the Ukrainian leadership). He says that Truba responded that they are removed from politics and had not approached Russia for legal assistance. Truba also stressed that the seamen were not under suspicion in any way, adding that they were investigating the behaviour of the country’s leaders who gave the relevant orders for the boats to be sent there.

Novikov writes that he had hoped that this was indeed the case, but sees now that it is not. In a list of questions to court experts, published by fellow lawyer Ihor Holovan, one specifically asks whether any mistakes were made by the military servicemen in carrying out their task, and whether this led to grave consequences. Whether or not it is expected that the court experts will give a negative answer, Novikov stresses that in principle such a question must allow any answer,

He adds that Russia’s FSB came up with “a very similar expert assessment on the Kerch case from June. This also confirmed all the SBI suspicions: the seamen and other unidentified Ukrainian individuals were indeed wrong in everything, and the Russian border guards correct.”

This is not the only example of apparent cooperation between SBI Director Truba and Portnov in investigating alleged abuses of power by former President Poroshenko. That Portnov should be echoing the position taken from the beginning by Moscow may not be of any surprise. What the State Bureau of Investigations is trying to achieve, however, is significantly harder to fathom.