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