June 15, 2024

Injury Aids Lawyers

Experienced In Injury Aids Lawyers

How Civil Society Aids Accountability and Justice

How Civil Society Aids Accountability and Justice

Since the start of the February 2022 illegal invasion of Ukraine by Russia, countless heinous war crimes and crimes against humanity have been committed by the Russian military and its proxies. Evidence has shown bombings of civilian targets including health-care facilities, as well as rape and other forms of sexual violence, mass killings and mass graves, and destruction of humanitarian convoys and corridors. Some estimates put the number of war crimes reported to date at more than 71,000 cases.

In recent months, increasing attention has been focused on Russia’s so-called “filtration” camps. The process that Ukrainian civilians are subjected to in these locations includes screening (“filtering”) by checking their identity, fingerprinting and photographing them, searching their belongings and phones, and interrogating them, and then most often forcibly transferring and deporting them, children included, from Ukraine to Russian-occupied territories in Ukraine or to the Russian Federation.

International law doesn’t specifically define a crime of “filtration.” But the actual forcible transfers and deportations of civilians, including children, from Ukraine to occupied territories of Ukraine or to Russia, the occupying state, is a breach of international law and a violation of a cluster of international human rights norms as well as other relevant statutes.

And the forcible transfers of civilians from Ukraine to Russia or Russian-controlled territory is not only a legal violation. The Russian government also is manipulating reports of the transfers within its propaganda machine to fuel a range of disinformation and nationalistic narratives, such as the false idea that it is “saving” the Ukrainians from Nazis who supposedly dominate Ukraine’s government and military.

Ukraine’s civil society, with the help of international partners, has taken on the arduous, challenging, and laborious work to help document and counter this illegal practice, as we outline in a broader forthcoming report by our organizations – the Center for Civil Liberties (CCL), the Free Russia Foundation (FRF), and the American Bar Association’s Center for Human Rights (ABA/CHR), respectively. The report will analyze various aspects of the filtration system and examine individual cases based on international humanitarian law, international criminal law, and international human rights law and standards.

The Forced Transfers in Practice

Filtration has been used before by the Russian government, during the Chechen war and in Ukraine since Russia’s original illegal seizure and annexation of Crimea and invasion of Ukraine’s eastern Donbas region in 2014.

Considering the large scale of the current filtration and forcible transfer operations, the Ukrainian government, civil society organizations, and the international community are working to counter various elements of this illegal practice. CCL, for example, collects and documents data, organizes cases in a database, and processes evidence that ultimately will be needed to seek accountability and justice in courts.

CCL’s Oleksandra Drik cited several documented cases during a September 2022 address to the U.N. Security Council. In April 2022, for example, a man and his family were detained and interrogated by the Russian military. Upon learning that his wife was donating money to support the Ukrainian military, the Russian soldiers called her a fascist and a Nazi and attempted to take away their child to send to a so-called re-education camp. They assaulted the husband, striking him in the groin area, and tortured him with electricity. The man also saw evidence of torture that apparently had been meted out to others before him – blood on the floor and white pieces that looked like bone fragments. He was saved mainly because the Russians wanted him to work for them. The family ultimately was able to flee to Europe.

In another case, a 21-year-old student from the southern Ukrainian port city of Mariupol, which was under a brutal siege for months before falling to Russian forces in May 2022, went through unimaginable suffering when his father was shot by Russian soldiers, and he had to hide in his basement for 30 days as his home city was destroyed, before being taken by force through two filtration camps (one in Donetsk and one at the Russia border) with his 80-year-old, cancer-stricken grandmother. At the filtration camps, he was fingerprinted, photographed, and interrogated. The Russians also demanded he surrender his Ukrainian passport, a request he refused. Fortunately, four days later he was able to escape, traveling to Georgia, Turkey, and finally Germany.

Another case cited by CCL was that of a 16-year-old male who was trying to flee Melitopol in southeastern Ukraine and was detained by the Russians. They kept him for three months in a prison cell with no working toilet and forced him to watch the torture of other detainees and clean blood from cells after interrogations.

Most cases of “filtration” and forcible removal have yet to be fully documented or publicized; many likely haven’t even been reported. But CCL and others are gathering, recording, and documenting them as they are reported, painstakingly compiling files in a database, piece by piece. CCL experts, like so many Ukrainian civil society organizations documenting war crimes, often work around the clock, due to the volume of cases. And they are coordinating their work with the international community and various Ukrainian government agencies.

In addition to the September U.N. Security Council meeting about the issue, a range of Ukraine’s partner governments, international organizations, and media outlets are exposing and drawing attention to the “filtration” practices as well. In August 2022, the Yale School of Public Health’s Humanitarian Research Lab, as part of a U.S. State Department-supported project, published a report mapping the filtration system in and around Donetsk oblast in eastern Ukraine. Their research found that Russia had created the filtration system weeks before the invasion began. The report identified 21 facilities in or around Donetsk that make up the system and described their functions, including registration, holding of individuals, secondary interrogation, and detention.

Just last month, the lab issued a report on “Russia’s Systematic Program for the Re-education and Adoption of Ukraine’s Children.” It said the Russian government and military had “systematically relocated at least 6,000 children from Ukraine to a network of re-education and adoption facilities in Russia-occupied Crimea and mainland Russia.” Michael Carpenter, the U.S. ambassador to the Organization for Security and Cooperation in Europe, which includes both Ukraine and Russia, cited the lab’s report in noting the current count of at least 43 filtration camps distributed across an area stretching from the illegally-occupied Crimean Peninsula through Siberia and to Russia’s Far East.

The U.S. State Department has similarly outlined how the classification of the detainees operated in the filtration systems. The detainees were categorized by the level of the perceived threat they allegedly posed. Detainees perceived by Russian forces or their proxies as the most threatening are subject to extended detention and torture in the occupied territories or are forcefully transferred to Russia. Detainees deemed as posing a moderate threat are also likely to be transferred to Russia. The detainees seen as posing no threat are documented and sometimes released in Ukraine, while some in this category are still deported to Russia.

Many human rights organizations also have raised the alarm. Human Rights Watch (HRW) has described specific cases of filtration and forcible transfers of Ukrainian civilians. The authors of one of its reports documented evidence, conducted interviews of 117 people, and attempted to put together a larger picture of the sequence of events the civilians are experiencing. The report demonstrates the wide variation among the cases. Some Ukrainian civilians were forced onto buses, others were coerced to “voluntarily” move to occupied territory or Russia to avoid alleged retaliation by the Ukrainian army later, while others fled to avoid wartime abuses and violence by the occupying Russian military. Still others left for Russia on their own accord, citing the restrictions of martial law that the Ukrainian government imposed from the day of Russia’s full-scale assault last year and has renewed since then. Amnesty International has expressed specific concerns about the most vulnerable populations who were forced to flee, such as children, the elderly, and people with disabilities.

What Happens to Ukrainian Civilians Forcibly Transferred to Russia?

A related concern is the fate of Ukrainian civilians once they are forcibly transferred and deported to Russia: what happens to them, where are they, are they safe, what about the children and vulnerable people? The answers to these questions are hard to find due to the absence of any transparent records, the lack of communications, the magnitude of the transfers, and a variety of other challenges. Even the numeric estimates of civilians transferred to Russia vary greatly from source to source. The State Department site noted earlier says estimates from an array of sources range “between 900,000 and 1.6 million,” including “thousands of children.” One Russian government site, RIA, in an apparent effort to claim the attraction of Russia for Ukrainians over Poland and Germany, reported a year ago that more than 2.9 million Ukrainians entered the Russian Federation from Ukraine. The Ukrainian government quotes more conservative numbers of approximately 100,000 to 200,000 adults and 14,700 children having been transferred to Russia.

One of our organizations, the Free Russia Foundation, has launched an initiative to investigate and gather more information about specific cases in order to piece together a more accurate big picture. The foundation began this work in 2014 and last year created the Poshuk-Polon initiative to help find and return prisoners of war and civilians who have been forcibly transferred from Ukraine to Russia. The initiative has received thousands of inquiries just since last year from Ukrainians asking for help in locating their loved ones. Of those requests, 5 percent to 7 percent relate to missing civilians, while the remainder concern POWs.

According to preliminary insights from FRF investigations, there appear to be several scenarios for what happens to Ukrainian civilians once in Russia. In some cases, Russian authorities place the individuals in detention facilities or prisons, making it very difficult to trace their whereabouts because of Russia’s “dual” prison system and the lack of reliable communications. In the “dual” system, a prison is divided unofficially into one part managed by prison officials and another, hidden part that is controlled by security or military forces and where official prison rules do not apply. In that off-the-books area, conditions for detainees often are inhumane. In any case, electronic communication is not available, and notoriously slow, and unreliable regular mail is the only way to communicate.

In some instances of Ukrainian civilians forced to Russia, they are dispersed throughout various regions and remote locales all over the country. How they are treated and the conditions in which they live vary greatly based on different approaches by local authorities. In some areas, civilians are forced to give up their Ukrainian passports and are assigned Russian passports instead. In other places, the civilians are allowed to keep their Ukrainian passports, though the documents are deemed to be dangerous and can cause potential problems if spotted by authorities. Many deportees do not have any means by which to leave Russia and return to Ukraine. It is an especially dire situation with transferred children. The recent Yale report on child deportations cited cases of children with disabilities and/or no appropriate support being transferred to Russia as well.

International Legal Standards

Although international norms do not use the term “filtration” in outlining potential violations, the forcible transfers of civilians including children during an international conflict by parties to the conflict is considered a breach of international law, whether international humanitarian or human rights law applies, and may be punishable under international criminal law.

The Fourth Geneva Convention of 1949 and its First Protocol state that the forcible transfer of civilians from occupied territory to the territory of the occupying state or another state is prohibited, no matter the reason. An important element to constitute a breach is the existence of force, i.e. the transfer or deportation must be “forceful,” whereas consent to transfer, if genuine and voluntary, would not constitute a breach. Case law from the International Criminal Tribunal for the former Yugoslavia (ICTY) specifies that, if a civilian gives consent under coercive circumstances such as fear of duress, violence, detention, abuse of power, or psychological oppression, that consent would not be considered voluntary. Notably, another  judgment held that forcible transfer is not allowed even if it is under the pretense of humanitarian assistance if the humanitarian crisis is triggered by the unlawful activities of the aggressor state.

The phrase “deportation or forcible transfer of population”  is defined under the Rome Statute that established the International Criminal Court, as “forced displacement of persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” (Art. 7(2)(d)). Also, forcible transfer of children is one of the acts that can constitute the crime of genocide — as defined in Article 6(e) of the Rome Statue — when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” It is also a genocidal act under the Genocide Convention’s Article 2(e).

A joint legal analysis of the New Lines Institute and the Raoul Wallenberg Centre of Russia’s breaches of the Genocide Convention concluded that there are “reasonable grounds to believe Russia is responsible for (i) direct and public incitement to commit genocide, and (ii) a pattern of atrocities from which an inference of intent to destroy the Ukrainian national group in part can be drawn;…” The May 2022 analysis also indicated that large-scale forcible transfers of Ukrainian civilians may be characterized as ethnic cleansing, citing a definition in a 2007 International Court of Justice judgment as “‘rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area’…may be significant as indicative of the presence of a specific intent [to destroy].”

Furthermore, under international human rights laws, this practice violates numerous treaty provisions, ranging from the Convention Against Torture (CAT) to violations of fundamental rights under the International Covenant on Civil and Political Rights (ICCPR), to violations of the Convention on the Rights of the Child. Thus, no matter what body of law is applied to the cases of forcible transfers, Russia and its agents on the ground in Ukraine are in breach of core international legal obligations.

Ways Forward

It is of paramount importance to ensure accountability and justice for various crimes perpetrated as part of the ongoing Russian war on Ukraine. Whether the leadership crime of aggression, war crimes, crimes against humanity, or forcible transfers specifically, the perpetrators must be brought to justice.

The international community should press harder on Russian authorities to halt these illegal acts immediately. In the meantime, it will be vital to increase support for civil society groups working to end the war and seeking accountability and justice for crimes committed in Ukraine and in Russia. These joint efforts are practical manifestations of the unity and solidarity among the wider international community to support the victims, survivors, and their families and to show our unwavering commitment to seek justice and accountability for these crimes.

(The views expressed represent those of the authors. The views have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.)

 

IMAGE: Vyacheslav Volyvach (back center) and Olha Tabachuk (left), brother and mother of Serhiy Tabachuk (not pictured) who has been detained in the Zaporizhia region while evacuating people, sit next to Ihor Talalay (R), a Ukrainian witness of Russian filtration centers. The three were attending a discussion on “Filtration as invisible frontline of Russia’s aggression against Ukraine” at OSCE headquarters in Vienna on July 27, 2022. A report by the world’s largest security body on July 14 expressed “grave concern” about alleged mistreatment of tens of thousands of Ukrainians at so-called filtration centers set up by Russia in Ukraine. Talalay, a volunteer from Dnipro, was detained by Russians and kept in filtration camps in the Donetsk region for three months. The fate of Serhiy Tabachuk was unknown at the time of this discussion. (Photo by ALEX HALADA/AFP via Getty Images)