According to Ukrainian human rights activists, it is necessary to change format of negotiations on liberation of Ukrainian servicemen captured by militants and to amend Ukrainian legislation.
Status of captured Ukrainian soldiers “up in the air”
Coalition of human rights NGOs, including Ukrainian Helsinki Human Rights Union, media initiative “Za Prava Liudyny” (“For Human Rights”) and Kharkiv Human Rights Group call that legal status of persons detained by members of the so-called “DPR-LPR” should be established as soon as possible in order to ensure appropriate defense of their rights. In addition, humanitarian and other aspects within Minsk andreements should be discussed separately, they stressed. “We suggest a new negotiations format that would ensure mechanisms of control and responsibility for arbitrary behavior, for violation or inobservance of the sides’ commitments and would make it impossible to use humanitarian issues for someone’s political benefits,” stated Nadiya Volkova, lawyer of the Ukrainian Helsinki Human Rights Union, representative of Ukrainian prisoners of war in the European Court of Human Rights, at a press briefing at Ukraine Crisis Media Center. The activists are going to present detailed suggestions in the beginning of March.
Establishment of legal status of these persons would define how to qualify their actions committed in captivity and what mechanisms within Ukrainian and international legislation should be applied to defend their rights, for instance, the Rome Statute and Geneva Conventions. In particular, these documents define priorities for prisoners liberation and prescribe commitments of the detaining power.
“Our servicemen who are being held there should be sure that they will be defended. However, neither me nor other families whose fathers and sons are in captivity can see this at present,” stressed Victoria Pantyushenko, whose husband, tanker Bogdan Pantyushenko, is a militants’ prisoner since January 2015. She mentioned that two years have passed since Minsk agreements were signed. Absence of tangible progress with liberation of prisoners, ten of which are in detention for more than two years, show that this format does not work, she says.
Negative precedents as a result of uncertainty
Unclear status of de facto prisoners of war creates risks both for them and their relatives or volunteers who try to negotiate about their liberation as the mandated state authorities remain passive. One of examples is the case of Colonel Bezyazykov, currently accused under part 3 Art. 258 of the Criminal Code of Ukraine “assistance in creation of a terrorist organization” and Art. 111 “treason”. “This results from absence of any legal status and legal mechanism, absence of law to regulate situation like this one and situation of many other people who are held as hostages on that [occupied] territory. To outline the legal framework and to define their status is the task of primary importance,” stressed Vitaliy Tytych, lawyer of Ivan Bezyazykov.
Suggested changes
Vitaliy Tytych reminded that international law experts have been addressing this problem since the very start of the conflict. “It’s time to call things by their real names. If the international community has already recognized that Russia is the aggressor, it’s time to adopt this term as well. […] Recognition of Russia as aggressor, imposition of martial law on a part of our territory and therefore the use of appropriate international law on that territory and demand to Russia to respect its commitments would be the most simple and the only possible solution to this problem,” he stressed.
Moreover, it is important to amend Ukrainian legislation and fill in the existing gaps using international best practices. Nadiya Volkova noted that the state should elaborate a special strategy for liberation of prisoners, within which various state authorities would have particular areas of responsibility. Regarding the case of Col. Bezyazykov, Ukraine could analyze similar cases from American practice.