Of jailers and torturers

Andriy Kostin, Prosecutor General of UkraineTuesday 3 October 2023

In this article, written exclusively for Global Insight, Ukraine’s Prosecutor General describes the systemic and widespread practice of the Russian occupiers unlawfully detaining Ukrainian civilians in torturous conditions, and elaborates on the implications for international human rights law, international humanitarian law and international criminal law.

Since the beginning of its brutal war of aggression against Ukraine, Russia has engaged in the business of unlawfully detaining thousands of Ukrainian civilians – and the numbers are growing rapidly. In the first wave, Russian units scoured the land with lists of activists, pro-Ukrainian community leaders and military veterans. Later, they came for the teachers, the doctors and any others who refused to collaborate with the occupiers. Today, Ukrainians in the occupied territories may get abducted and incarcerated merely for wearing blue and yellow colours or speaking Ukrainian.

As many have vanished without a trace, it is notoriously difficult to estimate the exact number of unlawfully detained Ukrainian citizens. In a June 2023 report, the United Nations Office of the High Commissioner for Human Rights (OHCHR) documented 864 individual cases – 763 men, 94 women and seven boys – of arbitrary detention perpetrated by the Russian Federation between 24 February 2022 and 23 May 2023. Naturally, the actual number is many times more. Ukraine’s government has been able to identify over 1,000 who are facing charges. According to Gulagu.net, a Russian human rights group, at least 4,000 Ukrainian civilians are held in Russia and at least as many scattered around the occupied territories. In all, the full numbers are unknown but according to various assessments, there could be tens of thousands held captive by the occupiers.

According to data from former captives, the Ukrainian Media Initiative for Human Rights and Gulagu.net, the detainees are held in at least 40 detention facilities in Belarus and Russia, and 63 makeshift and formal ones in occupied Ukrainian territory. The recent UN report counted a total of 37 facilities in Belarus and Russia and 125 in occupied Ukraine.

Unsurprisingly, Russia has no intention of making the conditions for detainees anything close to humane. The prisons – often rather cold makeshift dungeons – are routinely overcrowded, lacking adequate food, water, medical care, sanitation and heating.

Moreover, actors of the Russian Federation frequently submit detained Ukrainian men and women to barbaric torture and abuse. In its report, the UN expressed grave concerns about ‘widespread practices of torture or ill-treatment by Russian armed forces, law enforcement and penitentiary authorities’. According to the OHCHR, those acts included ‘punching and cutting detainees, putting sharp objects under fingernails, hitting with batons and rifle butts, strangling, waterboarding, electrocution, stress positions for long periods, exposure to cold temperatures or to a hot box, deprivation of water and food, and mock executions or threats’. Further, the OHCHR documented 36 cases of sexual violence against 25 men and 11 women perpetrated in the context of arbitrary detention, including rape, threats of rape against victims and their loved ones, electrocution to genitals or nipples, beating to genitals and forced stripping and nudity.

Putin’s henchmen aren’t satisfied with pretend killings. The UN shed light on the summary execution of 77 civilians (72 men and five women) while they were arbitrarily detained, and the death of one more male detainee as a result of torture, inhumane detention conditions and denial of medical care. Again, the actual numbers are, tragically, much higher.

And the detentions don’t only torment the detained. Detainees were often held incommunicado and cut off from the outside world. The uncertainty about the whereabouts and fate of their loved ones gravely increases the suffering of their families, who – in their despair – relentlessly search for any piece of information on the disappeared.

It is no overstatement to say that Russia is cutting a swathe of devastation across the international legal order. The disregard that Putin and his accomplices are showing for human lives and human rights, their lack of compassion or even a hint of morals, is – even after nearly a decade of war – still staggering. The unfathomably atrocious behaviour of the Russian occupiers violates the bedrock principles of international human rights and international humanitarian law.

Human rights protected

Arbitrary deprivation of liberty is prohibited both in the framework of international humanitarian law as well as international human rights law.

The right to personal freedom and protection from arbitrary detention is guaranteed by Article 3 of the Universal Declaration of Human Rights (UDHR). Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which both Ukraine and Russia have signed and ratified, emphasises the same right to liberty and security of any person. Article 10 of the UDHR recognises the right to a fair and public hearing by an independent and impartial tribunal. Article 14 of the ICCPR expands upon this right, ensuring fair trial guarantees, including the right to be presumed innocent until proven guilty. Article 17 of the ICCPR safeguards detainees' right to communicate with the outside world and maintain contact with their family members. Additionally, the UN Standard Minimum Rules for the Treatment of Prisoners further elaborate on these rights, prescribing the humane treatment of detainees.

Russia abducting Ukrainian civilians, often holding them incommunicado for months without charges or even the resemblance of a judicial process is a clear violation of these provisions. Moreover, notwithstanding that the Russian Federation has not acceded to the relevant convention, the secretive incarcerations often amount to enforced disappearance, a crime so heinous and unanimously condemned by the international community it has attained the status of universally accepted customary international law. Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance defines enforced disappearance as ‘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’. There can be no doubt that this description fits the actions of those acting on Putin’s authority.

The same obviously holds true for the inhumane treatment and torture the detainees suffer at the hands of the occupiers. Article 5 of the UDHR protects individuals from torture and cruel, inhumane, or degrading treatment or punishment. Articles 7 and 10 of the ICCPR echo this protection, emphasising the prohibition of torture and mandating the respect for the inherent dignity of persons deprived of their liberty. Articles 2 and 16 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment reinforce this absolute prohibition of torture. Accordingly, ‘no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture’.

Indeed, the prohibition of torture is considered ius cogens, a peremptory norm of international law, which represents one of the most fundamental and universally accepted principles in the realm of human rights. Ius cogens, Latin for ‘compelling law,’ refers to norms and principles that are so fundamental, essential and universally recognised that they hold a unique and supreme status. They typically address the most serious and heinous violations of human rights and impose obligations on all states, regardless of whether they are parties to specific treaties.

In addition to human rights violations, Russia’s systemic abduction, incarceration and torture of Ukrainian civilians is an egregious violation of the laws and customs of war, particularly of the Geneva Conventions. Common Article 3 of the Fourth Geneva Convention relates to the protection of civilian persons in time of war, as well as Additional Protocol I which requires that all civilians be treated humanely. Arbitrary deprivation of liberty violates this requirement. Article 27 of the Fourth Geneva Convention demands that civilians, whether detained or not, be treated humanely with respect for their dignity at all times. They may not be arbitrarily separated from their families.

Under international humanitarian law, there is an important distinction between detention and the internment of civilians. During an armed conflict, civilians may only be interned as an exceptional measure and if imperative security reasons so demand, that is, if they pose a threat to the occupying power. Internment is distinct from detention in that it may not be used as a punishment.

Interned civilians must be housed in facilities that ensure their wellbeing and protection from the elements, and they must be provided adequate food, clothing and medical care. They must be protected against acts of violence, intimidation and insult, and their safety and dignity must be respected throughout their internment. Within the week following the internment, each internee must be able to inform family members, as well as the Central Tracing Agency of the Red Cross, of their internment. Moreover, internees should have an opportunity to challenge their internment and review it regularly by an appropriate court or administrative board. All these guarantees are explicitly prescribed by Articles 41–43 and 78–116 of the Fourth Geneva Convention and Article 75 of Additional Protocol I to the Geneva Conventions.

Even if Russia claimed that some of its arbitrary incarcerations of Ukrainians were internments, the gruesome conditions and treatment at the hands of the Russian jailers, and the lack of fundamental procedural safeguards constitute unlawful confinement and egregious violations of international humanitarian law.

Finally, the actions of the troops committing those atrocious acts, and of their superiors and commanders who ordered them or knew but did not interfere, entail individual criminal responsibility and constitute war crimes according to the Rome Statute of the International Criminal Court. These include unlawful confinement (Article 8(2)(a)(vii)); torture or inhuman treatment (Article 8(2)(a)(ii)); wilful killing (Article 8(2)(a)(i)); the taking of hostages (Article 8(2)(a)(viii)); wilfully depriving civilians of the rights of fair and regular trial (Article 8(2)(a)(vi)); and the list goes on.

Nevertheless, it seems Putin’s thirst for human suffering is growing ever worse. In May, Putin signed a decree allowing people to be sent from territories with martial law, including occupied Ukraine, to those without – meaning Russia. This makes it easier to deport Ukrainians deep into the Russian territory indefinitely. Moreover, a January 2023 document from the Russian government contains plans to create 25 new prison colonies and six other detention centres in occupied Ukraine by 2026.

In the face of all the staggering horrors and hardship, the Ukrainian government is of course not sitting idle. In cooperation with international partners, the Prosecutor General’s Office is setting up a mechanism that will serve to identify, locate and facilitate the liberation and return of unlawfully detained Ukrainian citizens. This facility will of course also strive to bring the perpetrators to justice and end impunity for those most horrific crimes.

The Ukrainian Prosecutor General’s office is seeking international support and partnership to create a mechanism to address the issue of civil detainees.

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