Oleksii Plotnikov, PhD, international judiciary
In early September, the UN published another annual Report of the Secretary-General on the human rights situation in Crimea for the period from July 1, 2020 to June 30, 2021 . Among other things, the Report states that the UN has information on 43 cases of enforced disappearances, which have been described in the Crimea since March 2014, and that no tangible progress has been made in their investigation.
There are reports of extrajudicial executions of at least one missing person, and none of the 30 people released were compensated. Although there is information about the involvement of the “Federal Security Service of the Russian Federation” and other representatives of the Russia-controlled “administration” in these events, none of the perpetrators was brought to justice.
“Investigations”, if any, were formal, non-transparent, and no information was provided to relatives of victims. Those victims who were released faced a risk of persecution, and most of them were forced to leave the Crimea after liberation. The report also called on the UN Secretary-General to “to ensure the independent, impartial and effective investigation of all allegations of torture or ill-treatment, enforced disappearances, and arbitrary arrests and detentions in the Crimea”.
When UN officials talk about “enforced disappearances”, they mean a clear legal term. In 2006, the International Convention for the Protection of All Persons from Enforced Disappearance was adopted. According to it, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.
Although what are now called enforced disappearances have always existed, this phenomenon attracted the attention of international law in the 1970s due to the practices of some dictatorial regimes. Seeking to avoid responsibility for extrajudicial killings of political opponents, such regimes organized themselves or through subordinate non-governmental groups, the secret abduction of unwanted persons, which usually ended in their death (for the history of the phenomenon, see ).
Enforced disappearance is always a secret measure of unlawful state repression. Other forms of kidnapping, such as by criminals for ransom, are not considered enforced disappearances. The main problem with the phenomenon of enforced disappearances is that the person remains “without protection of the law”, i.e. their detention is not documented, which makes it difficult to prove a violation of their rights, for example, torture or detention in violation of the guarantees established by law and/or in inappropriate conditions. In addition, by arranging enforced disappearances, the governing power avoids a formal trial of a detainee.
From this point of view, for example, the arrests of citizens during the Soviet terror of the 1930s, although illegal even from the point of view of Soviet law itself, may not constitute enforced disappearance, if they were usually documented, and the execution or imprisonment of a person has been preceded by some formal procedure, and if the victim’s relatives were informed on the repression that was done. The situation of enforced disappearance is characterized by the complete absence of a formal procedure. The governing power does not even recognize the fact of a person’s detention, and does not provide any information about their fate.
Enforced disappearance is different from mere violations of the detention procedure. Such things as lack of documentation of time and place of detention, absence of a lawyer, failure to notify relatives, etc., may constitute a violation of the human right to liberty and security of person provided for in Article 5 of the European Convention on Human Rights and a number of other international treaties.
However, in such cases it is a question of shortcomings in the organization of law enforcement agencies of the state. Enforced disappearances are a manifestation of a conscious governing policy, when the officials not only do not prevent violations during detention, but they also purposefully neglect any procedure. Enforced disappearance is such a serious act that it was recognized a crime against humanity under Article 7 § 1 “i” of the Rome Statute of the International Criminal Court .
As of early 2021, the UN Human Rights Monitoring Mission in Ukraine registered 43 cases of enforced disappearances in Crimea, of which 28 occurred in 2014, 2 – in 2015, 4 – in 2016, 7 – in 2017, and 2 – in 2018. On September 3, 2021, it became known that unknown persons allegedly connected with the Russian “authorities” in the Crimea abducted at least five Crimean Tatars associated with the civil activities, in particular the Deputy Speaker of the Mejlis of the Crimean Tatar People Nariman Jelal . Although the abductees were later found in the FSB building in Simferopol, their abductions reportedly showed signs of enforced disappearance, as a result of gross violations during “arrest”, absence of proper “registration” of “detention”.
Those victims were taken away in vehicles without license plates, and later the Russian de-facto “authorities” refused to disclose their whereabouts. These signs indicate the purposeful development of a kidnapping operation in the form of enforced disappearance. Thus, the statistics of the UN Mission have been supplemented by at least five more names, not counting those who were deprived freedom while trying to find out the fate of the abductees. In turn, the Russian invaders’ “authorities” has demonstrated that after a long break it is not going to abandon the practice of enforced disappearances in Crimea. Regardless of the further development of the situation, the events of September 3 and 4 already constitute an international crime.
These abductions can be considered in existing or new proceedings before the UN International Court of Justice (as another manifestation of racial discrimination against Crimean Tatars, for which Russia is responsible as a state), the European Court of Human Rights (as a violation of at least Articles 5 and 6 of the Convention, and probably other articles by Russia as a state), the International Criminal Court (as a crime against humanity committed by specific Russia-controlled “officials”).
In parallel with these judicial proceedings, special international mechanisms are in place to combat enforced disappearances. First, we are talking about the UN Committee on Enforced Disappearances. This body was established on the basis of the 2006 Convention. Ukraine is a party to the Convention, including the provisions concerning the Committee. The Russian Federation is not this Convention’s party, but this does not completely rule out the possibility of appealing to the Committee because of Russia’s actions in the Crimea.
The first option is provided for in Article 29 of the Convention, according to which each State Party shall submit to the Committee, through the UN Secretary-General, a report on the measures taken to give effect to its obligations under this Convention, within two years after the entry into force of this Convention. Ukraine has been a party to the Convention for six years, but there is no information on the report. The submission could be an opportunity to draw the Committee’s attention to enforced disappearances in the Crimea, as well as to clearly define Ukraine’s position on the responsibility of Russia for such disappearances.
The second option is established by article 34 of the Convention, according to which if the Committee receives information which appears to it to contain well-founded indications that enforced disappearance is being practised on a widespread or systematic basis in the territory under the jurisdiction of a State Party, it may, after seeking from the State Party concerned all relevant information on the situation, urgently bring the matter to the attention of the UN General Assembly. From the point of view of international law, although the Crimea is under the control of the Russian Federation, and it is responsible for the observation of human rights in the occupied territories, Ukraine has not lost jurisdiction over the peninsula. Therefore, the report on the situation in the Crimea as a situation occurring under the jurisdiction of Ukraine is quite possible.
The next option is to apply to the Working Group on Enforced or Involuntary Disappearances, a UN body that collects information on cases of enforced disappearances and can contact any state or non-governmental group on behalf of relatives of victims of enforced disappearances . In 2018, the experts of the Working Group have already visited Ukraine. During the visit, they were not allowed into the Crimea by the Russia-controlled “powers” and were unable to verify information on 42 cases of enforced disappearances in the Crimea. However, the very fact of such non-admission the Working Group can be seen as evidence of the unwillingness of Russia to investigate enforced disappearances, and can be used in trials in international courts.
It is unlikely that the Russia-controlled “administration” will heed the call of the UN Secretary-General and end the practice of enforced disappearances in the Crimea. Recourse to international bodies dealing with enforced disappearances makes sense in order to obtain additional evidence and assessment from such body with special expertise, which can be used further both politically in working with third countries’ governments and legally as evidence in international courts.