The Moscow Mechanism Expert Report: On the Arbitrary Deprivation of Liberty of Ukrainian Civilians by the Russian Federation

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Introduction

When, in 1991, the Participating States of the Conference for Security and Cooperation in Europe (CBSE) at their meeting in Moscow established the so-called Moscow Mechanism, nobody could have anticipated the pivotal role that this mechanism would have some three decades later in holding to account its “country of origin”, the Russian Federation. Yet, this is exactly what we have witnessed and continue to witness. While the first three decades of Mechanism’s existence, 1991-2021, were characterised by its very rare invocations, leading to some rumours of it becoming redundant, the Russian war of aggression against Ukraine and the radical worsening of the human rights situation in the Russian Federation and its close “partner in crime”, Belarus, have completely revitalised and indeed revealed the true potential of the Moscow Mechanism, giving it a new lease of life.

Since March 2022, the Mechanism has been activated already six times – four times with respect to the violations of international law committed during the conflict in Ukraine and twice concerning the human rights situation in the Russian Federation and Belarus. The most recent report issued under the Moscow Mechanism relates to the arbitrary deprivation of liberty of Ukrainian civilians by the Russian Federation.

This post provides a trailer for this almost 90-page long document, which, following its presentation to the OSCE Permanent Council on 25 April 2024, has already been made publicly available in full length. We will first briefly recall how the OSCE Moscow Mechanism works and will then introduce the main factual and legal findings of this most recent report.

OSCE Moscow Mechanism

The OSCE Moscow Mechanism entitles any of the 57 Participating States of the OSCE to establish a mission of up to three experts and to task it to “address or contribute to the resolution of questions in its territory relating to the human dimension”. Experts are selected from a list available on the website of the OSCE-ODIHR which encompasses persons appointed by their States of nationality. The list must have at least 45 names on it to be operational – currently, it has over 70 names, with several States only appointing their experts once the mechanism has started to be actively used in recent years. Experts shall be “eminent persons, /…/ preferably experienced in the field of the human dimension, from whom an impartial performance of their functions may be expected”. To ensure their impartiality and independence, experts draft their reports fully on their own, with no material, financial or other support provided by OSCE States or by the OSCE itself.

The Moscow Mechanism has two forms. It is consultative when the State on whose territory the relevant events to be examined have occurred invokes the mechanism itself. In this case, a mission of three experts is usually established, and the mission can expect cooperation from the territorial State. The mechanism is adversarial when it is invoked by States other than the one on whose territory the relevant events to be examined have occurred and when this State does not support the invocation. In this case, the mission usually consists of one expert only and there is a limited chance that the territorial State would cooperate. One peculiarity of the Moscow Mechanism, when compared with other fact-finding bodies, is the extremely short terms for its work. The experts must produce their report within three (consultative form) and two (adversarial form) weeks from the day of their appointment.

The Moscow Mechanism has been triggered 15 times since 1991. As already noted, six of these invocations have taken place since March 2022. Two of them – on the human rights situation in the Russian Federation and in Belarus – were adversarial, while the remaining four – all related to the conflict in Ukraine – were consensual.

The most recent invocation occurred on 29 February 2024 when the delegations of 45 OSCE participating States invited Ukraine, after consultation with it, to establish a mission of experts to address the arbitrary deprivation of liberty of Ukrainian civilians by the Russian Federation. Ukraine responded positively, and on 14 March 2024, it appointed three experts from the list: Prof. Veronika Bílková (Czech Republic), Dr. Cecilie Hellestveit (Norway) and Dr. Elīna Šteinerte (Latvia). Uniquely, the composition of the Mission was identical to that of the previous one, which focused on forcible transfers of Ukrainian children by the Russian Federation. The Mission submitted its report on 4 April 2024 and formally presented it to the OSCE Permanent Council on 25 April 2024.

Arbitrary Deprivation of Liberty of Ukrainian Civilians

The report first establishes facts and then analyses those facts in light of the applicable standards of international humanitarian law (IHL), international human rights law (IHRL), international criminal law (ICL) and the OSCE commitments. All these four areas of law contain a clear prohibition of arbitrary deprivation of liberty which occurs when individuals are detained without their free consent and detention either lacks legal grounds or is conducted without adequate procedural guarantees.

The Mission established that since February 2014, thousands of Ukrainian civilians have been deprived of liberty by the Russian Federation acting either directly through its organs or, in 2014-2022, through its proxies in the so-called Donetsk and Luhansk People’s Republics. This practice was documented in all Ukrainian regions which, for a shorter or longer period, were under the temporary occupation of the Russian Federation. Strikingly, the arbitrary deprivation of liberty of the Ukrainian civilians by Russia seems to be one of the defining features of this occupation.

IHRL and IHL establish certain grounds which enable one party to an armed conflict to lawfully detain civilians belonging to the other party. One example is the internment of civilians in occupied territories for “imperative reasons of security” under Article 78 of the GCIV. The Mission, however, concluded that for the overwhelming majority of Ukrainian civilians detained by the Russian Federation, this or any other lawful ground was not present. In fact, the civilians were mostly detained either because of their general support for Ukraine and rejection of the Russian occupation, to force them into cooperation with the occupying powers, or to simply spread fear in the population and compel them into submission to the occupying power. All these reasons are unlawful under international law, and as a result, any deprivation of liberty based on them is arbitrary.

There were also instances where Ukrainian civilians were detained on account of their alleged affiliation with the Ukrainian armed forces or their alleged involvement in extremist or terrorist acts. While such grounds could be lawful, evidence collected by the Mission suggests that in most cases, these were mere pretexts, and the detention pursued other purposes such as harassment or reprisals, which again render the detention unlawful and arbitrary.

The absence of lawful grounds for the deprivation of liberty of Ukrainian civilians is further compounded by the unavailability of virtually all procedural guarantees that are foreseen under international standards to guard against arbitrary detention. IHL and IHRL concur in that detained persons must be informed about the reasons for their detention; must be provided with an opportunity to challenge the legality of their detention; are entitled to periodic reviews of their detention; must be provided with fair trial guarantees and have the right that their State, their families and certain other actors (the ICRC, the Central Tracing Agency, etc.) be informed about their detention and its location. Special guarantees also are to be provided to individuals in situations of vulnerability, such as children and older persons, or persons enjoying privileges and immunities under international law, including members of the OSCE staff. The Mission established that none of these guarantees were available to detained Ukrainian civilians, which again renders the detention unlawful and arbitrary.

Treatment of Ukrainian Civilians Deprived of Liberty by the Russian Federation

Both IHL and IHRL foresee a comprehensive legal regime applicable to the treatment of civilians detained in the context of an armed conflict. While the treatment of detained Ukrainian civilians was not the prime focus of the Mission, it is impossible to examine the phenomena without also looking into the treatment that such civilians have endured. Moreover, it must be underscored that in some instances the treatment subsequent to the detention may affect the status of that detention, rendering it arbitrary.

The obligation to treat everyone deprived of liberty “with humanity and with respect for the inherent dignity of the human person” is encapsulated in Article 10 of the ICCPR, which applies to all forms and places of detention. This is a positive obligation imposed in relation to persons who, because of their status as persons deprived of their liberty, are in situations of particular vulnerability and this obligation is nowadays considered to be non-derogable in nature. It is also one that the Russian Federation has not even attempted to derogate from.  The obligation of humane treatment is an overarching concept and there are certain acts which are clearly incompatible with it. These especially include extrajudicial killings, torture and other cruel, inhuman or degrading treatment or punishment, various forms of sexual violence, including rape, and the denial of basic fair trial guarantees.

The Mission concluded that Ukrainian civilians arbitrarily deprived of liberty by the Russian Federation were, on a large scale, subjected to such absolutely prohibited practices. Upon detention, civilians are exposed to regular mistreatment, involving torture and sexual violence, calculated to bring about humiliation, forced confessions or subjugate people into submission to and cooperation with the occupying forces. They are denied any contact with the outside world, including their families. They have to endure harsh conditions as they are often held in unofficial, makeshift, places of detention and subjected to violent, punitive regimes. They are denied food and water, and those families who are fortunate enough to somehow locate their loved ones desperately seek ways of engaging with the Russian prison system’s online shops to ensure that they get at least some food, no matter the, at times, 100% mark up to the prices imposed. The detained civilians are denied medical assistance and forced to sleep on cold floors, without mattresses and bedding – if the overcrowded situations allow them to lie down at all. The conditions of detention are unhygienic, lack basic sanitation, and there is often no proper ventilation or light, let alone the possibility to go out in fresh air. There is denial of medical assistance not only for chronic conditions but also for such which have occurred as a direct result of the treatment endured.

The total denial of contact with the outside world has resulted in Ukrainian civilians being held incommunicado and even being subjected to enforced disappearances, thus also forcing whole families into a state of victimhood, desperate for any news of their relatives, which, in many cases now already exceeds two years. For some, arbitrary deprivation of liberty has cost the ultimate price of their life, as the Mission recorded cases of extrajudicial killings. For others, arbitrary deprivation of liberty has meant total denial of the most fundamental fair trial guarantees. Ukrainian civilians are tried under legislation which should not apply to them in the first place, in violation of the principle of legality and retroactivity. Their procedural rights and the right to defence and legal assistance are not respected, which in and of itself renders detention related to criminal prosecution arbitrary.

Conclusions and Recommendations

The Mission concluded that a large number of Ukrainian civilians have been and continue to be arbitrarily deprived of their liberty by the Russian Federation. These civilians are detained without any legal grounds and in the absence of virtually any procedural guarantees. The Mission furthermore concluded that Ukrainian civilians arbitrarily deprived of their liberty are subjected to various unlawful practices such as extrajudicial killings, enforced disappearance, torture, or sexual crimes. All these practices constitute a clear violation of IHRL and IHL. They also highly likely to amount to war crimes, including the crime of “unlawful confinement” (Article 8(2)(a)(vii) of the ICC Statute), and, due to their massive, widespread and systematic nature, to crimes against humanity, including the crime of “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” (Article 7(1)(e) of the ICC Statute).

Under both IHRL and IHL, individuals arbitrarily deprived of liberty are entitled to immediate and unconditional release. Upon release, moreover, they are entitled to full reparations in all their various forms, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Unfortunately, instances of the release of Ukrainian civilians remain sporadic and isolated, and these small number of releases also include instances when Russia has accorded the detained Ukrainian civilians the status of prisoners of war in a manner diametrically opposite to the provisions of the GCIV. Moreover, there is no evidence of any reparation being provided by the Russian Federation to the detainees and/or their families. In view of this situation, the Mission addressed its recommendations not only to the Russian Federation (including recommendations to stop the practice, to release civilian detainees, to provide reparations, etc.) and to Ukraine (including recommendations to set up a list of Ukrainian civilians detained by the Russian Federation, to provide support to released civilians and their families, etc.) but also to third States and to international organizations (including recommendations to promote the institution of Protecting Powers, to use available legal avenues such as the procedure under Article 30 of the UN Convention against Torture or the procedure before the Working Group on Arbitrary Deprivation of Liberty, etc.).

It is also important to note that all these recommendations to different actors are complementary, aimed at ensuring a comprehensive mesh of measures to address the very serious violations of international law clearly established by the Mission. Notwithstanding this, while the facts are well established and the legal qualification of practices these involve does not give rise to doubts, the way in which the respect for some of the most fundamental rules of IHRL and IHL could be effectively enforced in this context remains a question that legal experts alone can hardly answer.

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