Anastasia Bagalika
Ihor Kotelyanets
How the Moscow Mechanism will help release illegally detained civilians
We’re discussing the OSCE Moscow Mechanism with Olha Reshetylova, a human rights activist and coordinator of the Media Initiative for Human Rights.
Guests1
Illustrative photo
About the Moscow Mechanism
Olha Reshetylova: In this mechanism, Moscow is merely a namesake, as it was established during an OSCE meeting in 1991 held in Moscow. However, Russia does not hold a special role in its creation or outcomes.
Any OSCE participating state can initiate this mechanism to investigate another OSCE participating state. It involves the selected state appointing experts to conduct an independent investigation on a specific issue, followed by presenting a report with recommendations to the OSCE states.
We advocated for the launch of the Moscow Mechanism specifically concerning the persecution of civilians. Our first OSCE event took place in June 2022. It was crucial for us to initiate the Moscow Mechanism because, firstly, it stands out as one of the few effective instruments within the OSCE framework. The OSCE is among the few organizations where Russia remains active, making it pivotal to raise this issue at the OSCE level, given the existing, if not external, then internal channels of communication with Russia. Secondly, historical precedence underscores the potential impact of Moscow Mechanism reports. For instance, following the initial Moscow Mechanism report on the situation in Yugoslavia, the Yugoslav Tribunal was established. A well-written report carries significant political weight.
Last week, we presented our report, which, according to experts, is highly critical. It is rich in factual evidence and focuses on the persecution of civilians. The report meticulously documents all the crimes perpetrated by Russia against civilians in occupied territories. Importantly, it emphasizes that these are not isolated incidents carried out by individual soldiers, nor are they mere accidents or expressions of individual soldiers’ animosity towards civilians. Instead, the report asserts that these actions constitute a systematic, deliberate policy of the Russian Federation targeting civilian populations.
During the presentation of the report, the US Mission to the OSCE stated that the detention, crimes, and persecution of civilians in the occupied territories constitute a strategic aspect of the Russian Federation’s warfare. This acknowledgment is of utmost significance. The report unequivocally identifies these acts as possessing the characteristics of crimes against humanity. Following the presentation of this report, we have attained a significantly enhanced comprehension of the atrocities perpetrated by Russians against Ukrainians.
The subsequent crucial step entails initiating a comprehensive criminal investigation into these crimes. While the report itself holds significance, its impact hinges on follow-up actions. Therefore, the next endeavors of both civil society organizations in Ukraine and diplomatic missions should focus on ensuring the implementation of additional mechanisms subsequent to the report.
We are earnestly hopeful that the International Criminal Court will commence proceedings on war crimes. Additionally, we anticipate the activation of the dormant UN mechanisms concerning this matter. The recommendations outlined in the Moscow Mechanism report extensively reference the International Committee of the Red Cross (ICRC). Hence, we also aspire for increased engagement from the ICRC, its donors, and the broader international community. It’s imperative to acknowledge that the mere existence of the ICRC does not suffice to address the issue; rather, its operational methods require reassessment and modification.
The preceding three Moscow Mechanisms pertaining to Ukraine were initiated post-2022. Notably, the third mechanism, preceding the current one, focused on the issue of child deportation. Subsequently, global attention was drawn to the deportation problem, prompting widespread acknowledgment and shock. We anticipate a similar outcome now, as for the past decade, discussions regarding Russia’s capture of civilians have failed to yield tangible results.
Read also: Political sponsor for those illegally imprisoned by the Russians — explains the wife of the civilian hostage
Is the term «hostages» appropriate?
Olha Reshetylova: Discussions regarding naming persist, contemplating terms such as civilian hostages, hostages, civilian captives, or victims of enforced disappearances. The array of options for designation is extensive. However, recent events, particularly the escalation of conflict in Gaza, Palestine, have led to frequent requests, notably from the UN, to refrain from using the term «hostages,» as it immediately draws parallels to the situation in Palestine. Through discussions with experts from the Moscow Mechanism and other international humanitarian law specialists, we’ve concluded that «hostages» might not always be the most appropriate term for this phenomenon, as Russia doesn’t consistently demand concessions for their release.
Certainly, various situations arise where individuals are indeed held hostage for ransom, as an example. Additionally, in Kherson, it’s not uncommon for family members to be captured with the aim of coercing their relatives into collaborating with the Armed Forces. These instances constitute clear cases of hostage-taking. However, there are also instances of individuals becoming victims of enforced disappearances and arbitrary detention, which represent more egregious crimes under the Rome Statute and international humanitarian law.
The usage of the term «hostages» originated from our domestic so-called terrorist legislation. Previously, the LPR and DPR were labeled as terrorist organizations in Ukraine, a direction I believe was misguided. Subsequently, there were attempts to designate Russia as a terrorist state. However, such terminology has limited relevance to international humanitarian law. If we aim for an investigation by the International Criminal Court into these crimes, it’s imperative that we employ accurate terminology and definitions.
The Moscow Mechanism underscores that Russia treats civilians akin to prisoners of war, depriving them of rights and holding them captive. One of the key demands of the Moscow Mechanism is to cease treating them in this manner. Hence, the term «prisoners» should also be omitted in this context.
Read also: Helping civilians in illegal detention and their families — NGO «Egida-Zaporizhzhia»
Persecution of civilians is a systemic state policy of the Russian Federation
Olha Reshetylova: We are confronting a systemic crime that unfolds with the persecution and intimidation of entire communities, followed by the arbitrary detention of individuals from these communities. The cycle persists with instances of torture, confinement in deplorable conditions, transportation, denial of medical treatment, and restrictions on communication with relatives. It culminates in deeply unjust trials where so-called confessions are coerced from individuals. Our testimonies reveal instances where people are compelled to fabricate crimes they never committed. This is not merely a violation of the right to a fair trial; it constitutes outright mockery of justice.
Regrettably, international humanitarian law often tolerates such semblances of justice. Merely having a judge, individuals serving as defense counsel, and a prosecutor can create the illusion of a legitimate court proceeding.
When it comes to trials conducted in the occupied territories and in Russia, monitoring them proves exceedingly challenging. Few individuals are willing to undertake this task, and those who do often encounter immediate threats of persecution. Nonetheless, organizations like the ZMINA Human Rights Centre and Graty publication are committed to monitoring these trials. We have initiated a special project dedicated to this endeavor, with the aim of demonstrating that these trials constitute war crimes.
We are confronted with a systemic phenomenon: a state policy of the Russian Federation aimed at persecuting civilians. It’s evident that numerous Russian state bodies are complicit in perpetrating this crime. From soldiers and the military who detain civilians, to the FSB, and extending to the Federal Penitentiary Service, investigators who employ torture during interrogations, and judges, lawyers, and prosecutors, a multitude of entities are involved.
The involvement of numerous state bodies suggests a coordinated effort sanctioned at the highest political level. Hence, when addressing the investigation of this crime, it’s crucial to approach it not as isolated instances of different war crimes, but rather as a collective crime against humanity.
Our efforts are underway, commencing with the northern regions where the crime has concluded, enabling us to document, or at the very least, ascertain the precise number of abducted individuals. It’s worth emphasizing that over 300 people from the northern regions remain in custody of the Russian Federation, a situation that has persisted for over two years now.
It’s crucial that the Moscow Mechanism underscores the inception of this practice in 2014. This underscores the necessity of investigating all crimes dating back to the outset of the aggression, including the annexation of Crimea and the seizure of territories in Donbas.
Read also: «We need help with publicity» — sister of Oleksiy Kyrychenko, civilian hostage held by the Russians
Internment
Olha Reshetylova: We are currently engaged in intense internal discussions regarding certain aspects of this report. Specifically, it mentions that some of the civilians unlawfully detained by the Russians could potentially be subject to internment, indicating that there might have been justifications for such action.
Internees are civilians perceived as potential threats to the occupying power. Consequently, they may be isolated for the duration of the occupation or the active phase of the conflict. International humanitarian law permits internment under certain circumstances. Therefore, the detention of civilians in internment camps is not deemed criminal if these individuals indeed posed a threat, such as engaging in guerrilla activities, planting explosives, or attempting to harm representatives of the occupying power.
The investigators have observed that there were legitimate grounds for internment for certain civilians. However, Russia failed to adhere to the proper internment procedures and instead committed crimes. It’s essential that we maintain utmost honesty in our assessment. Presently, we have identified 1649 detainees. Among them, a small fraction indeed collaborated with the Armed Forces or special services of Ukraine, not only by providing information but also by taking active measures. This is a natural response, as countering armed aggression aligns with our constitutional duty. These individuals, upon their release, will be regarded as heroes in Ukraine.
But what is Russia doing? In some instances, we observe a dubious practice where one individual, possibly associated with explosives found at their residence, is arbitrarily grouped with nine others who have no connection to the situation. Such actions appear to be an attempt to obfuscate the crimes committed by the Russians against the civilian population, under the guise of alleged internment or criminal investigation.
Their deliberate actions aim to create a convoluted situation that obscures clarity. By refraining from explicitly labeling it as internment, they foster ambiguity, prompting us and international experts to speculate on its nature. Consequently, discussions revolve around this ambiguity rather than unequivocally stating that Russia is perpetrating a crime against humanity.
Eventually, we will prepare material on why this is not internment. At the very least, because after the Russian troops retreated from the northern regions or from the right-bank Kherson region, they had to release these conditionally interned people, if they were interned. However, they did not do so even though these people no longer posed a threat.
The report very clearly states that Russia systematically and deliberately commits crimes against civilians in the occupied territories to sow an atmosphere of fear and break down resistance.
Read also: «As long as there is no mechanism for the return of civilian prisoners, people will continue to die»
Conclusions on the report
Olha Reshetylova: The report clearly states that Ukraine must continue its efforts to identify everyone. For our country, the biggest problem is with the lists. We cannot provide lists. It is obvious why we cannot do this – the crime is committed in the occupied territories. It is very difficult to get data from there. Russia does not provide such data.
We find ourselves in a situation where we know neither the exact number nor the exact names. Both the government and NGOs need to synchronize their efforts because everyone keeps providing different numbers. Our list today includes 1,649 names and 560 former hostages.
The report of the Moscow Mechanism should be submitted to the International Criminal Court and the UN. These are our next steps.
I understand that the most important thing for the family is to secure the release. What should be done to achieve this? Of course, the first recommendation in the report is to unconditionally and immediately release all civilians and provide lists of all those who are being held. It is clear that Russia will not easily heed this.
Therefore, the next recommendation of our release mechanisms is to create an international working group on release. Today, the Platform for the Release of Civilians has been established, with Norway and Canada taking the lead. It is crucial that this working group does not remain merely declarative but is filled with concrete steps.
The involvement of many countries is crucial to us because each country possesses levers that can exert pressure on Russia. Russia has economic interests worldwide, so it’s necessary to identify these interests and take action accordingly. It is paramount not to turn the liberation process into blackmail against Russia. We must ensure that Russia is not given any room for maneuver but rather formulate our requirements very clearly, along with what it can obtain in return or, conversely, what it cannot obtain.
This is indeed a long and challenging journey. It requires robust diplomatic efforts, pressure from NGOs, and intellectual work, among other things. Fortunately, there are individuals in the world capable of undertaking these tasks. The main priority for us is to engage them now.
Read also: Why illegally detained civilians are left without social protection from the state
In times of war, the program «Free our relatives» tells the stories of people, cities, villages, and entire regions that have been captured by Russian invaders. We discuss the war crimes committed by the Kremlin and its troops against the Ukrainian people.
The program is hosted by Ihor Kotelyanets and Anastasia Bagalika.
This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by Ukrainian Helsinki Human Rights Union. Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of USAID, the United States Government. The contents are the responsibility of the authors.
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