The Disappeared: Ensuring Future Investigations Recognise Enforced Disappearances in Ukraine (Part II)

While the full scale of the enforced disappearances in Ukraine are currently unknown, available information indicates that Russian forces have systematically abducted active and outspoken community leaders, journalists, and activists. While the first part of this post provided an overview of the legal framework of enforced disappearances both internationally and domestically, this part argues that there is at least a reasonable basis to believe that each of the elements of the crime against humanity (Article 7(1)(i) of the Rome Statute) are engaged. 

First, the enforced disappearances have clearly been committed as part of a widespread or systematic attack directed against the civilian population. The details of Russia’s invasion of Ukraine and the subsequent attacks against civilians, encompassing numerous crimes against humanity, have been well documented elsewhere.    

Second, there is evidence that numerous Ukrainian journalists (e.g., herehere, and here), activists (e.g., here and here) and local leaders, usually mayors (e.g., herehere, and here) have been arrested, detained or abducted (element 1.a/2.b – which includes “any form of deprivation of liberty of a person against his or her will” (see e.g., Burundi Decision, para. 118)) and that this has been followed by a refusal to give information on their fate or whereabouts (element 1.b/2.a). Such refusal will include situations in which there is an outright denial of, or misleading information given about, the deprivation of liberty (see e.g., Burundi Decision, para. 118). 

In the Zaporizhzhia region, multiple leaders have been abducted and their fate and whereabouts remain unknown. For instance, on 13 March 2022, the house of Serhii Pryima (head of the Melitopol district council of the Zaporizhzhia region) was searched by Russian law enforcement agents who arrested him. On the same day, Yevhenii Matveev (mayor of Dniprorudne) was abducted by Russian forces. There is no information about the fate or whereabouts of either of these men. 

In the Kharkiv region, several members of the local council have disappeared. On 1 March 2022, during a pro-Ukrainian rally, Russian servicemen summoned Kupyansk city council member, Mykola Maslii, for a conversation during which they used smoke bombs in order to prevent witnesses seeing as they abducted him. His whereabouts are unknown to date. On 21 March, Russian forces abducted Mykola Sikalenko (head of the Tsyrkunivska community) from his home and took him in an unknown direction. Although Ukrainian law enforcement are trying to locate Sikalenko, Russian forces have provided no information about his fate or whereabouts. 

In the Kherson region, at least 17 journalists, activists and Ukrainian veterans have disappeared. For instance, local activist Serhii Tsyhipa from Nova Kakhovka has been missing since 12 March 2022. According to his wife, eyewitnesses reported that Tsyhipa was arrested at the Russian checkpoint, possibly to prevent him from spreading pro-Ukrainian information. Another activist and Ukrainian veteran, Maksym Nehrov, disappeared at a Russian checkpoint under similar circumstances on 15 March. 

Third, the systematic nature of the enforced disappearances in Ukraine – in particular areas and targeting a specific profile of the victims (i.e., leaders, journalists and activists) – allows for an inference that the perpetrators would have been aware either that the deprivation of liberty would be followed by a refusal to provide information in the ordinary course of events, or that the refusal was preceded or accompanied by the deprivation of liberty (element 3).

Fourth, both the deprivations of liberty and the refusals to provide information have been carried out by, or with the authorisation, support, or acquiescence of the Russian state (elements 4 and 5). These acts take place in territories controlled by Russian forces after the Ukrainian troops have withdrawn. In most cases described above, the initial abductions are conducted by Russian military or law enforcement agencies. At least two abductions in the Kherson region occurred at a Russian checkpoint. Some of the victims have been released by the Russian forces in exchange for the captured Russian soldiers or after they film a statement in support of Russia.

Fifth and finally, the ICC Elements require that the perpetrator intended to remove such person or person from the protection of the law for a prolonged period of time (element 6). This element substantially differs from the definition of enforced disappearance in human rights law and imposes an additional burden which may be difficult to prove in practice (see ICJ, pp. 17-18). The Working Group on Enforced Disappearances has recommended (at paragraph 15) that “the definition of enforced disappearance provided for by the Rome Statute be interpreted by the national authorities in line with the more adequate definition provided for in Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance.” Therefore, the inclusion of these elements is not required in any future domestic prosecution of enforced disappearance in Ukraine, whether under current Article 1461 of the CCU, or Article 4421(1)(6) of the CCU (if, and when, Draft Bill 2689 or 7290 enter into force).

To begin with, while human right law includes the material element of the victim being placed outside the protection of the law (by virtue of the deprivation of liberty and refusal to provide information) (ICPPED, Article 2), the ICC Elements include the requirement that the perpetrator intended this consequence. This includes situations in which a victim is prevented from accessing judicial assistance or legal procedures (Burundi Decision, para.120). Certain circumstances surrounding the deprivation of liberty may reveal this intent such as abduction in unmarked cars with tinted windows, detention in desolate areas or unofficial prisons, failing to register detainees’ names, failure to allow prompt access to lawyers, and the absence of arrest warrants or any criminal charges. 

In Ukraine, there is evidence – at least – that the victims were placed outside the protection of the law.  It is likely an intent on the part of the perpetrator could be inferred from these circumstances. In general, as described above, the victims have been abducted and taken to unknown locations, without warrants of arrest or any criminal charges, usually in retaliation for their pro-Ukrainian position and/or as a mean of silencing the dissent. They have often been subjected to torture or inhumane treatment while detained. The surrounding circumstances of their abduction also indicates a clear intention to remove them from the protection of the law. For example: according to the Mayor’s Office (and corroborated by CCTV footage), members of the Russian military placed a bag over Ivan Fedorov’s (the mayor of Melitpol) head, forced him out the office into a car and drove him away in an unknown direction. Whilst detained Fedorov was torturedinto declaring his loyalty to the Russian forces. Similarly, as described above, Russian forces used smoke bombs to conceal the abduction on Mykola Maslii. 

In addition, unlike human rights law which imposes no temporal element (see e.g., A/HRC/39/46, para. 143; Yrusta v. Argentinawhich found enforced disappearance occurred where the victim’s whereabouts was unknown for seven days), the Rome Statute requires the victims removal from the protection of the law be for a “prolonged period of time”. Although the precise period that will satisfy this requirement has not been authoritatively clarified by the ICC, it has held that several months or years would fulfil this element (Burundi Decision, para.120). A broad interpretation of this element by the ICC would ensure victims who have been disappeared for even a short period of time can benefit from the protection of the law. 

In Ukraine, there have been some short-term disappearances ranging from several hours in the case of three female journalists arrested in Melitopol, Zaporizhzhia region to eight days in case of Oleh Baturyn, a journalist from Kakhovka, Kherson region. Although it is currently unclear whether these would be included within the protection of Article 7(1)(i) of the Rome Statute, they will certainly fall within the jurisdiction of Ukrainian courts interpreting the crime in line within human rights jurisprudence. In addition, the whereabouts of many unknown and their removal from the protection of the law continues. It is not known how long their disappearances will last. 

Conclusion

In sum, there is clear evidence that Russia has systematically used enforced disappearances against prominent Ukrainians – particularly, journalists, activists and local leaders – as a method of crushing opposition to its invasion in the areas under its control. While the ICC Elements of Crimes outline a complex set of elements for the crime against humanity of enforced disappearance, practitioners should not be discouraged from fully investigating and prosecuting this crime to adequately reflect the harm encountered by the victims and their families. Domestic prosecutions – whether as ordinary crimes under current Article 146 of the CCU or in the future as crimes against humanity under Draft Bill 2689 Article 4421(1)(6) – may utilise the human rights definition of enforced disappearances enabling a broader scope of conduct to fall within their protection. 

The Disappeared: Ensuring Future Investigations Recognise Enforced Disappearances in Ukraine (Part 1)

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. AlgeriaBousroual v. AlgeriaEl 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. BelarusEl Hassy v. Libyan Arab JamahiriyaBoucherf v. Algeria) and by the ECtHR (see e.g., Timurtas v. TurkeyKurt 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 146of 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., hereherehere 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:

  1. 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).
  2. 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.