Seven cir­cles of free­dom:

In­ter­na­tional law and clar­ity on the sta­tus of the con­flict as tools to lib­er­ate cit­i­zens per­se­cuted in Rus­sia and Crimea

The Ukrainian Week - - CONTENTS - Stanislav Ko­zliuk

About 15 of these are in Rus­sia and an­other 29 in the an­nexed Crimea. Some are be­ing pros­e­cuted for "ex­trem­ism", oth­ers for "par­tic­i­pa­tion in the Chechen War", oth­ers still for "ter­ror­ism" and yet more for "sab­o­tage op­er­a­tions". There are at­tempts to throw Crimean Tatars, who have come un­der in­creased pres­sure re­cently, into prison for pro-Ukrainian ral­lies three years ago and for their mem­ber­ship, real or al­leged, in the in­ter­na­tional po­lit­i­cal or­ga­ni­za­tion Hizb at-Tahrir. Rus­sia recog­nised it as a "ter­ror­ist or­gan­i­sa­tion" in 2003 and banned it. There were no such re­stric­tions in Ukraine.

"The num­ber of peo­ple de­tained by the il­le­git­i­mate Rus­sian au­thor­i­ties in Crimea on charges of ter­ror­ism, ex­trem­ism and sub­ver­sive ac­tiv­i­ties is in­creas­ing," said Min­istry of For­eign Af­fairs (MFA) spokesper­son Mar­i­ana Betsa in a com­ment on the sit­u­a­tion to The Ukrainian Week. "29 cit­i­zens of Ukraine are cur­rently de­tained in Crimea. But this fig­ure could be higher, be­cause it is ex­tremely dif­fi­cult to get in­for­ma­tion from the an­nexed penin­sula – it is our ter­ri­tory, albeit oc­cu­pied, so the MFA has no rep­re­sen­ta­tion there. And the oc­cu­py­ing state does not al­low us to en­ter with a mis­sion. Sim­i­larly, it does not ad­mit in­ter­na­tional mis­sions that could in­de­pen­dently mon­i­tor hu­man rights. Dis­ap­pear­ances, ar­rests and cases of tor­ture are con­stantly ob­served on the penin­sula. Every vi­o­la­tion pos­si­ble is tak­ing place there. The peak of the oc­cu­py­ing au­thor­i­ties' cyn­i­cism is the per­se­cu­tion of lawyers and hu­man rights ac­tivists in Crimea. It can be noted that the re­pres­sion of eth­nic Ukraini­ans and Crimean Tatars is only in­ten­si­fy­ing on the penin­sula. As for Rus­sia, 15 cit­i­zens of Ukraine con­tin­ued to be held there. They are hostages of the Rus­sian Fed­er­a­tion's ag­gres­sive pol­icy to­wards our coun­try. And Moscow is us­ing them as a bar­gain­ing tool for its po­lit­i­cal goals."

De­spite the work that the Ukrainian For­eign Min­istry, Min­istry of Jus­tice and sev­eral other state agen­cies are do­ing, the is­sue of free­ing these peo­ple re­mains rather com­pli­cated. Last year, five Ukraini­ans re­turned from Rus­sian cap­tiv­ity. Af­ter sen­tenc­ing, Rus­sian au­thor­i­ties ex­changed Nadiya Savchenko for its spe­cial forces op­er­a­tives Alexander Alexan­drov and Yevgeny Yero­feyev, while Hen­nadiy Afanasiev and Yuriy Soloshenko were ex­changed for the or­gan­is­ers of the Peo­ple's Coun­cil of Bes­sara­bia, Ukraini­ans Olena Hlishchyn­ska and Vi­taliy Di­denko. In ad­di­tion, Yuriy Ilchenko, ac­cused of ei­ther ex­trem­ism or in­cit­ing ha­tred, es­caped from Crimea in early sum­mer. In late Novem­ber Khaiser Dzhemilev, son of Crimean Tatar leader Mustafa Dzhemilev, re­turned to Ukraine af­ter serv­ing his "sen­tence" in the Rus­sian Fed­er­a­tion. At the same time, more so-called sabo­teurs were charged in Rus­sia – for- mer sol­diers who were al­legedly plan­ning to blow up crit­i­cal Crimean in­fra­struc­ture fa­cil­i­ties. The Krem­lin re­fuses to ex­change Ukrainian cit­i­zens that have al­ready been con­victed, in par­tic­u­lar Oleh Sentsov, Mykola Karpiuk and Stanislav Klykh. The sit­u­a­tion of the lat­ter is com­pli­cated by fact that he has started to suf­fer from men­tal dis­or­ders in Rus­sian cap­tiv­ity. How­ever, the au­thor­i­ties of the ag­gres­sor state ig­nore this.

"Work to free the Ukraini­ans is car­ried out daily. But not ev­ery­thing is pub­lic. There is an as­pect of quiet diplo­macy, where we work to free peo­ple with the other com­pe­tent au­thor­i­ties, for in­stance, the Min­istry of Jus­tice and Se­cu­rity Ser­vice. We try to do this qui­etly so as not to dis­rupt ne­go­ti­a­tions. Last year, Rus­sia re­leased four of our cit­i­zens. This hap­pened the day be­fore sanc­tions against it were ex­tended. A cer­tain logic can be fol­lowed: if Moscow sees prospec­tive ben­e­fits, it can agree to make con­ces­sions. At the mo­ment, spe­cific ex­changes are not be­ing dis­cussed. But we are work­ing," as­sures the MFA.

AN AL­TER­NA­TIVE TO MINSK

As for specifics, the MFA reg­u­larly pub­lishes notes of protest and de­mands the re­lease of il­le­gally de­tained Ukraini­ans. More­over, the is­sue of free­ing po­lit­i­cal pris­on­ers is brought up dur­ing bi­lat­eral meet­ings and in the tri­lat­eral con­tact group. The per­se­cu­tion of

Ukraini­ans is also men­tioned at OSCE Per­ma­nent Coun­cil meet­ings, the Coun­cil of Europe Com­mit­tee of Min­is­ters, the UN and so on. How­ever, it seems that these meth­ods have no ef­fect on Rus­sia. In ad­di­tion, Ukraine has more than one hun­dred peo­ple, both mil­i­tary and civil­ian, in cap­tiv­ity in the sep­a­ratist-con­trolled dis­tricts of the Don­bas. It is also nec­es­sary to work on their re­lease. But, as hu­man rights ac­tivists point out, the Minsk for­mat is not too ef­fec­tive here ei­ther. They men­tion sev­eral rea­sons. One of the key ones is the politi­ci­sa­tion of the process. Moscow and some­times Kyiv use the cap­tives and po­lit­i­cal pris­on­ers for their own ben­e­fit. Hu­man rights or­gan­i­sa­tions are con­vinced the cre­ation of a sep­a­rate hu­man­i­tar­ian ne­go­ti­a­tion plat­form could rec­tify this.

"To­day, apart from Minsk, there is no other for­mat to dis­cuss the re­turn of pris­on­ers or those il­le­gally de­tained. But Minsk does not work," Maria To­mak, rep­re­sen­ta­tive of the Me­dia Ini­tia­tive for Hu­man Rights, told The Ukrainian Week. "It is opaque and un­clear in terms of in­ter­na­tional hu­man­i­tar­ian law and also po­lit­i­cally. No one knows how pris­oner ex­changes take place, un­der which con­di­tions and who chooses the peo­ple for them. More­over, Ukrainian cit­i­zens were last ex­changed last nine months ago. There was also Dzhemilev, but he was not ex­changed – he served a sen­tence. An im­por­tant is­sue for us is find­ing an ex­change for­mat to cover all Ukrainian cit­i­zens: de­tained or im­pris­oned be­cause of the con­flict in the east or in the Crimea, both mil­i­tary and civil­ian. In ad­di­tion, an­other im­por­tant com­po­nent should fi­nally come into play – the ob­ser­vance of in­ter­na­tional hu­man­i­tar­ian law. In other words, the sta­tus of de­tainees, their treat­ment, the ex­change process and so on should be de­ter­mined."

"In the Don­bas con­flict, the peo­ple held by both sides have no le­gal sta­tus at all. It is un­clear whether they are pris­on­ers of war or not. As nei­ther in Ukraine, nor in Rus­sia, nor in the sep­a­ratist-con­trolled dis­tricts do they en­joy the guar­an­tees of in­ter­na­tional hu­man­i­tar­ian law. They are ba­si­cally ob­jects rather than the sub­jects in the ex­change ne­go­ti­a­tion process. We even know of cases when peo­ple were put on the lists and ex­changed against their will," added Daria Svyry­dova from Ukrainian Helsinki Hu­man Rights Union.

"Yes, we have a com­mu­ni­ca­tion for­mat in Minsk that per­tains to the Don­bas. But there is no plat­form for Crimea and po­lit­i­cal pris­on­ers. So there is no for­mat for ne­go­ti­a­tions on this is­sue at all. We can talk about Rus­sia's un­will­ing­ness to organise such a plat­form, but Ukraine should have such in­ten­tions too," she stated.

It should be noted that as part of the cur­rent Minsk ne­go­ti­a­tions, there is a hu­man­i­tar­ian group that deals in par­tic­u­lar with pris­oner ex­change is­sues. But a po­lit­i­cal com­po­nent is also present. In ad­di­tion, when mem­bers of the group try to talk about Crimea or po­lit­i­cal pris­on­ers, they en­counter re­sis­tance from Rus­sia, which al­leges that the scope of the ne­go­ti­a­tions only ex­tends to the Don­bas. The al­ter­na­tive could be a sep­a­rate ne­go­ti­a­tion plat­form par­al­lel to Minsk. More­over, the Euro­pean Par­lia­ment em­pha­sised the need to in­tro­duce such a for­mat for the Crimea in its March 16 res­o­lu­tion.

"The new ne­go­ti­a­tions should not have the same opaque form as pre­vi­ous ones. That is, it won't be con­struc­tive if the same old peo­ple turn up at the new plat- form," ex­plains To­mak. "The idea is that the new for­mat would not re­quire the re­jec­tion of the Minsk talks or cause po­lit­i­cal turbulence. Now, the dif­fi­culty is that pris­on­ers from the sep­a­ratist-con­trolled dis­tricts can be brought back through po­lit­i­cal ne­go­ti­a­tions, while the re­turn Sentsov or Kolchenko is only pos­si­ble if they are par­doned by Putin. Even if Ukraine does not recog­nise the de­ci­sions of their quasi-courts. That is to say, they pris­on­ers can­not sim­ply be brought to the bor­der and ex­changed. They could ap­ply for pa­role, but the short­est way is still a par­don. The hu­man­i­tar­ian ne­go­ti­a­tion plat­form we are talk­ing about could fa­cil­i­tate the process. But it should be un­der­stood that from the very be­gin­ning this project should in­volve very se­ri­ous au­thor­i­ties in the hu­man­i­tar­ian field – on the level of Kofi An­nan. The idea is not to deny the Minsk process its chance to be ef­fec­tive. This could be done in par­al­lel with­out aban­don­ing Minsk."

IN­TER­NA­TIONAL ARMED CON­FLICT

In or­der to re­solve this is­sue, hu­man rights ac­tivists re­cently pre­pared a con­cept strat­egy that would the­o­ret­i­cally make it eas­ier to free po­lit­i­cal pris­on­ers and other cap­tives. They sug­gest mov­ing the is­sue of pris­oner ex­change and re­lease into an ex­clu­sively hu­man-

WHEN MEM­BERS OF THE MINSK GROUP RAISE THE IS­SUE OF CRIMEA OR PO­LIT­I­CAL PRIS­ON­ERS, THEY EN­COUNTER RE­SIS­TANCE FROM RUS­SIA, WHICH AL­LEGES THAT THE SCOPE OF THE NE­GO­TI­A­TIONS EX­TENDS TO THE DON­BAS ONLY. THE AL­TER­NA­TIVE COULD BE A SEP­A­RATE NE­GO­TI­A­TION PLAT­FORM PAR­AL­LEL TO MINSK

itar­ian realm. There have also been pro­pos­als for a Na­tional In­for­ma­tion Bureau that the com­pe­tent au­thor­i­ties, such as the Se­cu­rity Ser­vice or Pub­lic Prose­cu­tor, would con­trib­ute data re­gard­ing pris­on­ers and cap­tives. This would make it pos­si­ble to cat­a­logue al­ready ex­ist­ing in­for­ma­tion and help fam­i­lies quickly ob­tain in­for­ma­tion about their rel­a­tives: lo­ca­tion, sta­tus, phys­i­cal con­di­tion, po­ten­tial court pro­ceed­ings and so on. Sep­a­rately, hu­man rights ac­tivists em­pha­sise the need to recog­nise the war in the Don­bas not as an "an­titer­ror­ist op­er­a­tion", but an in­ter­na­tional armed con­flict. This, in turn, would fi­nally de­ter­mine the le­gal sta­tus of mil­i­tary per­son­nel and civil­ians that are held on the ter­ri­tory of the self­pro­claimed "re­publics".

"The state can have a bunch of ar­gu­ments why it should not recog­nise the in­ter­na­tional armed con­flict. But this re­jec­tion will not make the war go away. In ad­di­tion, there are in­ter­na­tional bod­ies that will not recog­nise it in the near fu­ture. The ques­tion is whether Ukraine will be held li­able for fail­ing to ful­fil its pos­i­tive obli­ga­tions to its cit­i­zens against the back­ground of an armed con­flict. What has it done to pro­tect hu­man rights? Af­ter all, if a state does not con­trol a part of its ter­ri­tory, it is not re­lieved of its duty to pro­tect its cit­i­zens. You can­not pass a law and say that Rus­sia is re­spon­si­ble for ev­ery­thing that hap­pens in, say, the Crimea. That's not the way it works. The de­ci­sions of the ECHR con­firm this. For ex­am­ple, in the case Mozer v. Moldova re­gard­ing the con­flict in Transnis­tria. The

ECHR said un­equiv­o­cally that if you do not con­trol an area, it does not mean that you can do noth­ing," Svyry­dova notes.

She adds that on the world stage Ukraine re­peat­edly stresses that the Don­bas war is con­tin­u­ing be­cause of the Rus­sian Fed­er­a­tion, which fi­nances ter­ror­ists, has de facto oc­cu­pied part of the East and ex­er­cises ef­fec­tive con­trol there. But at the na­tional level, this con­flict has not been recog­nised as in­ter­na­tional.

"At one time, a draft law was pre­pared on the oc­cu­pied ter­ri­to­ries. But there was a neg­a­tive re­ac­tion from Poroshenko. It was an­nounced that there would be a law on de-oc­cu­pa­tion in­stead of this one. It's not clear how one is sup­posed to re­place the other in this case. But I get the im­pres­sion peo­ple think that by call­ing what is hap­pen­ing in the Don­bas an in­ter­na­tional armed con­flict, Ukraine would be declar­ing war on Rus­sia. Ac­tu­ally, this is two dif­fer­ent con­cepts," says To­mak.

Hu­man rights ac­tivists add that Ukraine could al­ready start to utilise the Geneva Con­ven­tions and in­ter­na­tional hu­man­i­tar­ian law in or­der to show the world that the con­flict is truly in­ter­na­tional, rather than do­mes­tic, as Rus­sia claims. Ad­di­tion­ally, the state could min­imise fu­ture losses in in­ter­na­tional courts. As noted above, no one has waived its re­spon­si­bil­ity to its cit­i­zens.

"Let's start with the pris­on­ers we are hold­ing: Rus­sians or Ukraini­ans who fought for the en­emy. Let's show the world that we recog­nise this con­flict and that the Rus­sian Fed­er­a­tion is an ag­gres­sor that con­trols our ter­ri­tory. And we de­mand from it and the world that Rus­sia also ful­fils its obli­ga­tions. It is a mat­ter of time be­fore we are brought to jus­tice. And we must do ev­ery­thing to min­imise the con­se­quences of our pos­si­ble vi­o­la­tions. This means the proper treat­ment of pris­on­ers, ne­go­ti­a­tions re­gard­ing Ukraini­ans in cap­tiv­ity and com­mu­ni­ca­tion with the ag­gres­sor on this is­sue," ex­horts Svyry­dova.

SIN­GLE SO­LU­TION CEN­TRE

For three years, in fact since the first po­lit­i­cal pris­on­ers emerged, their fam­i­lies have com­plained about the lack of ac­count­abil­ity. There is no per­son or agency that looks af­ter per­se­cuted Ukraini­ans and co­or­di­nates work on their re­lease. Last au­tumn, a pub­lic plat­form was cre­ated un­der the MFA, bring­ing to­gether var­i­ous NGOs and the For­eign Min­istry it­self. But not enough has been done. Par­tic­i­pants in meet­ings com­plain about their ir­reg­u­lar­ity and the lack of rep­re­sen­ta­tives from other agen­cies, which could can­cel out an orig­i­nally good idea.

"There was once an ap­peal to the pres­i­dent, the sec­re­tary of the Na­tional Se­cu­rity and De­fence Coun­cil and For­eign Min­is­ter Pavlo Klimkin, which was signed by the rel­a­tives of pris­on­ers, hu­man rights ac­tivists and MPs. But we were ig­nored. There are two op­tions here: ei­ther it did not reach the head of state, or it is a con­scious pol­icy. Cur­rently, one gov­ern­ment agency shifts the re­spon­si­bil­ity onto an­other. For ex­am­ple, the SBU says that it is only re­spon­si­ble for pris­on­ers in the sep­a­ratist-con­trolled ar­eas, whereas po­lit­i­cal pris­on­ers in Rus­sia are within the purview the Min­istry of Jus­tice. But how is that min­istry in­volved? At the most, it could send a re­quest to have the sen­tence served in Ukraine. Mean­while, Kolchenko is al­legedly a cit­i­zen of the Rus- sian Fed­er­a­tion, Sentsov too (the oc­cu­pa­tion au­thor­i­ties in Crimea have en­forced Rus­sian cit­i­zen­ship on them with­out their con­sent – Ed.). What's more, Moscow doesn't re­spond to such re­quests. It's the same with the MFA. What does it have to do with Crimea? There are 29 peo­ple im­pris­oned there, but Crimea is Ukraine. So the MFA is not rep­re­sented in Crimea," com­plains To­mak.

"We are work­ing with the Po­lit­i­cal De­part­ment and Diplo­matic Mis­sion De­part­ment at the MFA, with whom we dis­cuss how to help po­lit­i­cal pris­on­ers. But this is an ad­vo­cacy plat­form that aims to raise the is­sue in­ter­na­tion­ally. It does not ad­dress le­gal is­sues. There is com­mu­ni­ca­tion with the law en­force­ment agen­cies. Namely, the Prose­cu­tor Gen­eral's Of­fice and the Crimean pub­lic prose­cu­tor, who in­ves­ti­gate cases of il­le­gal im­pris­on­ment. But they col­lect ev­i­dence of vi­o­la­tions and do not try to free peo­ple. There is com­mu­ni­ca­tion with the om­buds­man. How­ever, she does not work on pris­oner ex­change. Va­le­ria Lutkovska can only con­tact her Rus­sian col­league Ta­tiana Moskalkova re­gard­ing vis­its to de­ten­tion fa­cil­i­ties. Lutkovska met sev­eral po­lit­i­cal pris­on­ers on one visit. I un­der­stand this was a con­di­tion set by the Rus­sian Fed­er­a­tion. There is also com­mu­ni­ca­tion with the Min­istry of Jus­tice about pris­on­ers that are il­le­gally taken out of the Crimea. But the gen­eral prob­lem is that there is no co­or­di­na­tion be- tween these struc­tures. Some­times one of them is wait­ing for in­for­ma­tion to start work that an­other one has had for a long time. That's not right," says Svyry­dova.

Hu­man rights ac­tivists point out that none of the gov­ern­ment agen­cies is against the cre­ation of such a fo­cal point. The Se­cu­rity Ser­vice, for ex­am­ple, has de­clared its sup­port on mul­ti­ple oc­ca­sions. How­ever, there has been noth­ing more than talk about it over the last three years. The plat­form un­der the Min­istry of For­eign Af­fairs is not an in­sti­tu­tion that op­er­ates con­tin­u­ously.

"Ap­par­ently, a de­ci­sion is re­quired from Poroshenko or his Ad­min­is­tra­tion. How it will be im­ple­mented (as part of a min­istry or an op­er­a­tions cen­tre, of un­der the SBU) is a sec­ondary is­sue. The cur­rent MFA plat­form is mainly for show – the meet­ings are once every three months. It is oc­ca­sion­ally pos­si­ble to solve cur­rent is­sues there and the min­is­ter in­structs de­part­ments to do cer­tain things. So it's more like an in­ter­de­part­men­tal meet­ing within one min­istry," ob­serves To­mak.

The work done so far on this is­sue is mostly owed to in­di­vid­u­als in each gov­ern­ment agency that are con­cerned with the is­sue of po­lit­i­cal pris­on­ers or cap­tives in the Don­bas. How­ever – as hu­man rights ac­tivists stress – Ukraine still has no sys­tem­atic strat­egy to ef­fec­tively re­spond to Rus­sia apart from notes of protest. There­fore, the is­sue of cap­tives and pris­on­ers re­mains un­re­solved. Which, in turn, al­lows it to be used for po­lit­i­cal pur­poses or self-pub­lic­ity.

HU­MAN RIGHTS AC­TIVISTS SAY THAT UKRAINE COULD START TO UTILISE THE GENEVA CON­VEN­TIONS AND IN­TER­NA­TIONAL HU­MAN­I­TAR­IAN LAW IN OR­DER TO SHOW THAT THE CON­FLICT IS TRULY IN­TER­NA­TIONAL, RATHER THAN DO­MES­TIC, AS RUS­SIA CLAIMS

Knock, knock. The FSB searches sev­eral Crimean Tatar house­holds in Dzhankoi area, Crimea, 2016

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