Three Legal Questions Arising From Reported Practices of Enforced Disappearance in Russian-Occupied Ukrainian Territories

This week, on August 30, the international community observed the International Day of the Victims of Enforced Disappearance. Enforced disappearance places victims outside of the protection of the law in a state of complete vulnerability. It is a fundamental denial of human rights that directly victimises those disappeared, subjects their families to uncertainty and torment, and threatens and subjugates communities afflicted by the threat of being victimised themselves. Enforced disappearances are not just the sum total of violations of a number of human rights, such as the right to liberty or freedom from torture, cruel, human or degrading treatment. They are a self-standing and distinct wrong that is robustly prohibited under both customary and treaty law.

Many reports, including that of the Expert Mission established by under the Organization of Security and Cooperation in Europe’s (OSCE) Moscow Mechanism, have found numerous cases of enforced disappearances in Russian-occupied Ukrainian territories.  Testimony collected by The Reckoning Project (‘TRP’ – a group of journalists and legal professionals supporting accountability for international wrongs connected to the Russian aggression in Ukraine), which has been reviewed by the authors and stored on TRP’s database, exposes disturbing patterns of disappearances.

Witnesses repeatedly recall that those in occupied Ukrainian territories can be arrested at any time, commonly due to hearsay evidence regarding their allegiance or views on the Russian occupation. Individuals are often held without families being officially informed of their whereabouts. Although in some cases families will have rough information on their whereabouts from external sources, in others, they will have no such indication, with Russian forces either refusing to engage altogether or claiming to have no knowledge of the detained person. Parcels from family members are sometimes accepted by guards, but it is unclear whether the acceptance of the parcels is done as an acknowledgment that the individual is in fact detained in the facility. Whilst detention can range from a few days to a few months, testimonies also demonstrate a disturbing uptick in detained individuals later being found deceased, either having had their body concealed or having been brazenly left in the open, often mutilated.

These practices give rise to a number of legal questions, three of which are the focus of this post. First, what is the relationship between the customary definition of enforced disappearance binding states and the definitions of enforced disappearance as established in relevant treaties and United Nations resolutions? Second, is a ‘time threshold’ an element of the definition of enforced disappearance, thus leaving short-term disappearances outside its ambit? Third, given the practice of accepting parcels for those detained, what does it mean for a state to acknowledge the fate or whereabouts of a victim as a way of terminating the disappearance?

Defining ‘enforced disappearance’ under customary international law

Determining the content of the customary prohibition on enforced disappearance is of particular importance in the Ukrainian context. This is because the Russian Federation is neither a party nor a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance (‘CPED’). Thus, any group examining allegations of disappearances carried out by the Russian Federation, such as the Working Group on Enforced or Involuntary Disappearances, would have to rely upon the customary framework outlawing the practice.

Enforced disappearances are regulated under treaty law and custom as both a state wrong and an international crime. The 1994 Inter-American Convention on Forced Disappearance of Persons and the 2007 CPED provide their own (almost identical) definitions of ‘enforced disappearance’, which largely reflect the definition posited in the 1992 Declaration on the Protection of all Persons from Enforced Disappearance (‘Declaration’) adopted by the United Nations General Assembly. Under the two Conventions and the Declaration, an enforced disappearance is characterised by the presence of three constitutive and cumulative elements: (1) deprivation of liberty; (2) by state authorities or groups or persons acting with the authorisation, support or acquiescence of the state; and (3) a refusal to acknowledge the deprivation of liberty or to disclose the fate or whereabouts of the disappeared person.

The Rome Statute, however, adopts a definition that contains additional elements necessary to qualify conduct as enforced disappearance. Under art. 7(2)(i), ‘“[e]nforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.’ Here, we see an additional element of intent of removing a person from the protection of the law – and this, for a prolonged period of time. While this element bears on the definition of the crime for the purposes of individual criminal responsibility under the Rome Statute, an intention of placing a person outside the protection of the law is not required for the state wrong. The negotiating history of the CPED shows the reluctance of several delegations to include this element of intent, since, first, the removal from the protection of the law is best understood as simply a consequence of the disappearance, and second, it would create difficulties related to proof.  There is no mention of such intent in the definition that was ultimately adopted in the CPED. In 2007, the Working Group on Enforced or Involuntary Disappearances published its General Comment on the definition of enforced disappearance, which clarifies that the intention of the perpetrator to place the victim outside the protection of the law is not an element of the offence under the Declaration. More recently, the 2022 Thirtieth anniversary of the Declaration Report prepared by the Working Group reviewed state practice and opinio juris related to enforced disappearances and affirmed that the definition contained in the Declaration is today part of customary law (at 72). The customary definition of enforced disappearance thus tracks the elements enshrined in the 1992 Declaration.

Length of the disappearance

In Ukraine and beyond, disappearances can occur in short timeframes, as well as lengthy ones. Practices of short-term disappearances have been consistently reported by the Working Group on Enforced or Involuntary Disappearances. Against this background, in a 2016 joint statement, the Working Group and the Committee on Enforced Disappearances affirmed that ‘[t]here is no time limit, no matter how short, for an enforced disappearance to occur. Every minute counts when a person is placed outside the protection of the law. And when a person has disappeared, every minute of anguish spent by his or her relatives without news of him or her is too much […]’. The irrelevance of the time period was confirmed by the Committee on Enforced Disappearances in Yrusta v. Argentina (at 10.3). The inclusion of a temporal element in the definition of enforced disappearance was considered during the drafting of CPED, and ultimately rejected (at 22-23).

Neither the definition of enforced disappearance nor the practice and pronouncements of states suggest a minimum timeframe for considering conduct as amounting to an enforced disappearance. In response to a UN call for inputs with a view to issuing a joint statement on the notion of short-term enforced disappearance, six states submitted their positions on this question. No state suggested that disappearances of short duration fall outside the ambit of the offence. According to the submissions by Brazil and Lithuania, the authorities are under a duty to notify interested parties of a detention ‘immediately’/ ‘without delay’.

The length of the disappearance is therefore immaterial if the three constitutive elements of the offence can be established. This is particularly significant given patterns of short-term enforced disappearances in Russian-occupied Ukrainian territories. 

Acknowledgment of fate or whereabouts

A defining element of an enforced disappearance (which distinguishes it from incommunicado detention) is the denial of the deprivation of liberty or the refusal to provide information on the whereabouts or fate of the disappeared individual. It is precisely this absence of information or engagement that creates a sense of complete uncertainty and effective removal from the protection of the law. What are the modalities for a state to acknowledge someone’s fate or whereabouts?

In light of reported Russian practices, a key question is whether the acceptance of parcels with food or medication from families of disappeared persons by Russian soldiers guarding places of detention would amount to such acknowledgment. Whilst this could prima facie be seen as an implicit acknowledgment of whereabouts, the mere acceptance of a parcel need not mean that the person is indeed present in that locality – a parcel could be accepted for a variety of reasons, including distribution among the occupying forces or other detained persons. In a communication to the Russian Federation from 12 June 2023, the Working Group on Enforced or Involuntary Disappearances, alongside a number of UN Mandate Holders, considered that ‘at least until 19 June 2022, when the guards acknowledged his detention by accepting a package from his wife, the detention of Mr. Harahatyi would amount to an enforced disappearance. Prior to that date, his family had no confirmation of the fact or the place of his detention.’ It is doubtful whether the fact of accepting a package can be equated to a confirmation of whereabouts. Without a clear, express and official confirmation of a person’s fate or whereabouts, the state would remain in continuing breach of the prohibition of enforced disappearance.

Conclusion

As the Russian occupation of Ukraine rolls on, testimonies increasingly demonstrate a propensity to engage in practices which may be qualified as enforced disappearance. If proven, such practices will amount to serious and gross violations of the human rights of those disappeared and their families. Today, as we recognise the continuing disturbing trend of enforced disappearance around the world, it is more important than ever to pursue all available accountability avenues to ensure justice for the disappeared and their close ones, and to signal the international community’s commitment to ending this abhorrent practice.

Jack Sproson and Tsvetelina van Benthem are senior legal officers at the TRP.