Since the full-scale Russian invasion in Ukraine on 24 February 2022, multiple prominent Ukrainians, including journalists, activists and local leaders have been abducted and forcibly disappeared at the hands of the invading Russian forces.
This two-part post will advocate for this conduct to be investigated and prosecuted using all available avenues both internationally and domestically. The first part will describe the overall legal framework of enforced disappearances including under human rights law, Ukrainian domestic law and as a crime against humanity under international criminal law. The second part will provide a preliminary analysis of the available evidence, which offers at least a reasonable basis to believe that each of the elements of the crime against humanity of enforced disappearance is engaged.
Enforced disappearance involves the arrest, detention, or abduction of a person, followed by a refusal to acknowledge their fate or whereabouts, with both these acts carried out with the authorisation, support, or acquiescence of a State or political organisation. Due to the fact they have been rendered outside the protection of the law by virtue of their disappearance, the victims of enforced disappearance are particularly vulnerable to the risk of other serious crimes, such as torture or execution.
While the definition of the crime against humanity of enforced disappearance in the Rome Statute entails significant challenges for its prosecution, it is crucial that the specific harm suffered by the victims and their families in Ukraine by virtue of their disappearance is adequately recognised and the victims and their families can access meaningful justice, whether before the International Criminal Court (‘ICC’) or another appropriate accountability mechanism.
The Legal Framework
Enforced disappearance is a serious violation of human rights, prohibited by the International Convention for the Protection of All Persons from Enforced Disappearance (‘ICPPED’).While Ukraine is a State Party to the Convention, requiring it to exercise jurisdiction over any acts of enforced disappearance which occur on its territory or against one of its nationals (Article 9), Russia has neither signed nor ratified it.
In addition, enforced disappearances have been recognised by the Human Rights Committee as, among others, a violation of the right to liberty and security, the right of all persons deprived of their liberty to be treated with humanity and respect for dignity, and a threat to the right to life (see e.g., Boucherf v. Algeria, Bousroual v. Algeria, El Alwani v. Libyan Arab Jamahiriya). Enforced disappearances also constitutes a violation of both the victims’ and their families’ right not to be subjected to torture, or to cruel, inhuman or degrading treatment or punishment, as recognised by the Human Rights Committee (see e.g., Quinteros v. Uruguay, Lyashkevich v. Belarus, El Hassy v. Libyan Arab Jamahiriya, Boucherf v. Algeria) and by the ECtHR (see e.g., Timurtas v. Turkey, Kurt v. Turkey).
When it takes place as part of a widespread or systematic attack against a civilian population, enforced disappearance constitutes a crime against humanity and is prohibited by the Rome Statute. Although Ukraine has not ratified the Rome Statute, it has accepted the jurisdiction of the ICC pursuant to two Declarations (first and second) under Article 12(3) of the Rome Statute. As such, the ICC has jurisdiction over Rome Statute crimes – including enforced disappearance – committed in Ukraine since February 2014. The ICC Prosecutor is conducting an investigation into the situation.
Domestically, Ukrainian legislation does not criminalise the crime against humanity of enforced disappearance. It does, however, criminalise enforced disappearance as an ordinary crime under Article 1461 of the Criminal Code of Ukraine (‘CCU’). Specifically, the domestic crime of enforced disappearance involves “the arrest, detention, abduction or deprivation of liberty in any other form by a representative of a State, including a foreign one, with subsequent refusal to acknowledge the arrest, detention, abduction or deprivation of liberty in any other form or withholding the fate of such a person or place of residence”. Several criminal proceedings were initiated under this provision in March (e.g., here and here), while more investigations have been opened into the facts of enforced disappearance under Article 438 of the CCU which criminalises violations of laws and customs of war (e.g., here, here, here and here).
Further, two draft Bills (2689, which was adopted by the Verkhovna Rada of Ukraine but is yet to be signed by the President and 7290, which was recently submitted to the Verkhovna Rada for consideration), will (if and when either of them enter into force) incorporate the crime against humanity of enforced disappearances into Article 4421(1)(6) of the CCU.
The Crime against Humanity of Enforced Disappearance
The crime against humanity of enforced disappearance under Article 7(1)(i) of the Rome Statute is a complex one, and we do not have the benefit of extensive ICL jurisprudence to explain the elements. The complexity of the crime and the addition of elements not found in human rights law may be significant (but not absolute) barriers to its successful prosecution.
The crime against humanity of enforced disappearance under the Rome Statute allows for several persons to be prosecuted at different stages of the disappearance. In sum, the crime consists of two major alternative types of conduct – deprivation of liberty and withholding of information. As such, it criminalises two types of perpetrators:
- A perpetrator who arrested, detained, or abducted one more person (element 1.a), where this conduct was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons (element 2.a) which the perpetrator knew would occur in the ordinary course of events (element 3.a).
- A perpetrator who refused to acknowledge the arrest, detention, or abduction, or to give information on the fate or whereabouts of such person or persons (element 1.b), where this conduct was proceeded or accompanied by a deprivation of freedom (element 2.b) which the perpetrator was aware of (element 3.b).
In addition, there are also jurisdictional elements to the crime against humanity of enforced disappearance under the Rome Statute: the act must have been committed by a State or political organisation, such as the police or armed forces, a state’s security service, or groups that are implementing state policies (which would include paramilitary groups controlled by or implementing the policies of a State); there must be a specific purpose (the act must be committed with the intention of removing the person from the protection of law); and a temporal element (for a prolonged period of time).
In the second part of this post, a closer examination of the elements of the crime against humanity of enforced disappearance will be undertaken with a view to assessing whether there is a reasonable basis to believe that the conduct in Ukraine satisfies the elements.