The crime of enforced disappearance – detention in complete isolation, or incommunicado, and preventing all communications over many months – combined with other forms of torture and persecution, is systematically committed by the Belarusian regime against hundreds, if not thousands of people, including the Polish journalist and activist Andrzej Poczobut. Many prisoners subjected to this practice have serious health problems. The authors of a new iSANS report call for an urgent response, adding that this is a matter of life and death. They maintain that an investigation into the crime of enforced disappearance should be initiated by the International Criminal Court in The Hague, and that this is currently one of the most effective actions that can be taken to help prisoners.
According to the Viasna Human Rights Centre, there are currently about 1,500 political prisoners in Belarus.
For many months there has been no information about many public figures, specifically Belarusian oppositionists held in Belarusian prisons, such as opposition veteran and former opposition presidential candidate Mikola Statkevich, Polish activist and journalist Andrzej Poczobut, blogger Ihar Losik, lawyer Maxim Znak, opposition figure Maria Kalesnikava, and former Belarus presidential candidate Viktar Babaryka, however this concerns hundreds, and maybe thousands of other people, warns the iSANS think tank and a group of international organizations working with iSANS.
In a new report, iSANS warns that this problem requires urgent action as it is a matter of life and death for many people.
The Belarusian regime’s practice of totally isolating prisoners from the outside world is considered a crime under international law and may, under certain circumstances, amount to a crime against humanity. It is defined by the legal term “enforced disappearance.”
Human rights activists point out that those responsible for this crime can be brought to justice with the help of the International Criminal Court in The Hague based on a referral from any of the 123 state parties to the Rome Statute, which is the treaty that established this court. Although Belarus is not a party to the Rome Statute, the jurisdiction of the International Criminal Court can be extended to the situation in country. This is possible based on a similar Bangladesh-Myanmar precedent, as explained below, as hundreds of thousands of Belarusians fled to neighboring countries that are parties to the Rome Statute to escape repression. According to iSANS experts and organizations cooperating with the center, the referral to The Hague, which the participating states would have to submit, is one of the strongest tools in the fight against crimes against humanity in Belarus, including enforced disappearances in places of detention.
Among those persecuted, the report mentions opposition leader and former military officer Mikola Statkevich. His wife Marina Adamovich said this month that she had not received any messages from her husband for more than 250 days. She calls for not having Mikola be forgotten, which is one of the goals of isolation, and to write letters to him.
The report also talks about Andrzej Poczobut, a journalist and one of the leaders of the Union of Poles in Belarus, blogger Ihar Losik, and opposition politicians Maria Kalesnikava and Viktar Babaryka. In most of these cases, these individuals are known to have serious health issues.
Life and health are at risk
Yuri Dzhibladze, head of the human rights and rule of law department at iSANS, stresses in a conversation with the portal PolskieRadio24.pl that the lives of many people are at stake.
“Urgent action is needed. A large number of political prisoners are held in solitary confinement in complete isolation without contact with the outside world (incommunicado). At least some of them already have very serious health problems, and given that several political prisoners have previously died in prison, the problem requires immediate action. This is a matter of life and death,” Yuri Dzhibladze told PolskieRadio24.pl. Remember Ales Pushkin, Nikolai Klimovich, and Vitold Ashurak, who died in prison under unclear circumstances.
Among others, Nikolai Klimovich, a longtime activist of the Belarusian anti-communist opposition since the 1990s, died in prison under unclear circumstances. He ended up in a cell despite the fact that he was recognized by the state as disabled (second group), had heart problems, and said that he would not survive imprisonment. The well-known artist Ales Pushkin died under suspicious circumstances, also allegedly due to health reasons, although he had been in excellent health, was full of energy and made no complaints about his health condition. Vitold Ashurak’s body was handed over to his family with a bandage on his head with the cause of death listed as heart failure. There has been no investigation into any of their deaths.
The inability to contact loved ones, including about their health status or about persecution and treatment in prison, affects many political prisoners. Not all families choose to make this public.
Intimidation of society
Yuri Dzhibladze notes that this issue is extremely urgent and needs to be given priority attention. It is not currently viewed this way and that needs to change. There is also no understanding that this is a crime against humanity. “It needs to be understood that this instrument of repression is intended not only to punish specific individuals, but also to intimidate the whole of society, because we have a lot of political prisoners, and this applies to everyone. Anyone can become a political prisoner. Those already imprisoned are subjected to inhumane and degrading treatment and torture in prisons,” he said.
“We need to understand that the enforced disappearances we are dealing with are not just being kept in solitary confinement, without the possibility of communicating with anyone, incommunicado. Enforced disappearance, as an international crime, is not only an individual means of revenge, but a tool that intimidates many people and is also torture against relatives who suffer because they do not know what is happening to their loved ones,” our interviewee noted.
It must also be understood that the fact that Lukashenka can now engage in these criminal practices is, in part, the result of impunity for similar crimes in the past. Therefore, prosecutions for these crimes must begin as soon as possible.
In 1999 and 2000, four opposition figures went missing and were subsequently killed. These are former chairman of the Central Election Committee Viktar Hanchar, journalist Dzmitry Zavadski, businessman Anatoly Krasovsky, and former head of the Ministry of Internal Affairs Yury Zakharanka. “Despite several investigations by the UN, the Council of Europe, the OSCE, as well as the conclusions drawn from these that these people were victims of enforced disappearances and murders, and that, most likely, government officials were to blame, no sufficient measures have been taken. This has created a situation of impunity, which has emboldened the dictator to employ the same measures against current oppositionist figures,” noted Yuri Dzhibladze.
“The most effective measure is to submit a referral to the International Criminal Court in The Hague”
Yuri Dzhibladze emphasized in a conversation with PolskieRadio24.pl that iSANS devoted a separate report to the possibility of taking Minsk’s actions to the International Criminal Court in The Hague, because at present this is the best measure we have.
“The most effective way at present is to refer the situation in Belarus to the International Criminal Court by any of the states or several states that are members of the Rome Statute. Why? Because this will be a much stronger tool than declarations, resolutions, expressions of concern, or condemnation from the UN, OSCE or individual states,” noted Yuri Dzhibladze. He added that if the ICC prosecutor agrees to launch a formal investigation in response to such a referral, it will be the first time that international judicial mechanisms have taken on an investigation of the situation in Belarus. If the prosecutor opens an investigation and investigators begin to look in to the situation, Lukashenka could face an arrest warrant issued by the ICC.
According to Dzhibladze, a warrant could be issued for Lukashenka’s arrest similar to the one that the ICC issued for the arrest of Vladimir Putin and Maria Lvova-Belova as part of the investigation into the deportation of Ukrainian children.
He maintains that a campaign on this issue continues. Since May, a group of international experts and organizations has been discussing and participating in negotiations and clarifications regarding the need for states parties to the Rome Statute of the ICC to take such a step.
“Negotiations are ongoing with many interested states that are parties to the Rome Statute and recognize the jurisdiction of the International Criminal Court. We have explained that the matter is urgent. In some cases, nine months have already passed since we’ve last heard about a person… A possible ICC investigation will focus not only on so-called enforced disappearances of people in prisons, but also on the broader scope of what we consider crimes against humanity in Belarus. These are not just blatant violations of human rights. In Belarus, over the past three years, crimes against humanity have been committed in accordance with the definition of the Rome Statute of the ICC, since such actions have been taken by the state on a large scale, are systemic, and are part of state policy, rather than isolated incidents. They target civilian population and are based on political motives. It is well known that the government targets precisely those people who have protested against the authorities or are known to criticize the regime’s policies. All these criteria therefore meet the definition of a crime against humanity. We are talking about torture and enforced disappearances, extrajudicial executions and other serious crimes, other serious violations of human rights, and if they are systematic, large-scale, part of state policy, directed against the civilian population and based on political motives, then this makes them crimes against humanity. This means that they fall under the jurisdiction of the ICC,” said Yuri Dzhibladze, head of the human rights and rule of law department at iSANS.
The ICC’s jurisdiction includes crimes against humanity, war crimes, genocide and, in some circumstances, the crime of aggression. “We believe that the documentation contained in the materials from NGOs and the reports of the UN High Commissioner for Human Rights, which present the results of the UN examination of the human rights situation in Belarus, contains convincing evidence that crimes against humanity have indeed been committed there,” he said.
“The second condition that determines the jurisdiction of the ICC is that, although Belarus is not a state party to the Rome Statute, many thousands of Belarusians have fled from Belarus to countries that are members of the Rome Statute, such as Poland, Lithuania, Latvia, and others. The fact that they fled to countries that have ratified the Rome Statute makes the crimes committed against them fall under the jurisdiction of the ICC. This is based on the ‘Bangladesh-Myanmar precedent.’ During this incident, the Rohingya people fled from repression from Myanmar, which has not ratified the Rome Statute, to Bangladesh, which is a state party to the Rome Statute. Currently, all states party to the Rome Statute can refer the situation in Belarus to the ICC prosecutor for review. The prosecutor will be obligated to react,” said the iSANS center expert.
As the activist noted, civil society organizations sent documentation to the ICC prosecutor outlining the need to launch an investigation into the situation in Belarus two and a half years ago, prior to the current enforced disappearances, based on other evidence such as torture, extrajudicial killings, and similar arguments and evidence, however there was no reaction.
“This is his right, because non-governmental organizations do not have so-called procedural status. However, if a government party to the Statute submits a referral, the prosecutor is obligated to respond. He cannot ignore such treatment under the ICC procedures enshrined in its statute. This is why over the past few months, iSANS, together with international experts, lawyers, and various organizations, has been involved in efforts to persuade state parties to the Rome Statute to take this step. Now this issue has become even more pressing due to the threat to the lives of people in solitary confinement in prisons, without any way of obtaining any information about them and from them,” emphasizes Yuri Dzhibladze.
Precedent at the ICC
An activist talked about how several years ago, when the military junta in Myanmar engaged in brutal repression, killing, and torture of the ethnic minority group Rohingya, its members fled en masse to neighboring Bangladesh. The ICC Prosecutor initiated an investigation into the situation in Myanmar and Bangladesh. “The court considered this decision and decided that it had jurisdiction, despite the fact that Myanmar is not a state party to the Rome Statute, because as a result of crimes committed in Myanmar these people fled to Bangladesh. According to the logic of the court, the crime of deportation began in Myanmar, but continued in Bangladesh,” the activist explained.
Yuri Dzhibladze explained that in justifying its decision, the ICC uses the term “deportation,” but not in the same sense to which we are accustomed. “This is not deportation in the sense that the government brings someone to the border and forces them to leave. In this definition, it is a mass exodus of people fleeing the threat of murder, torture, and arbitrary arrests,” he emphasized. This is a situation where the population is forced to flee. The ICC is currently conducting an investigation into the situation in Myanmar and Bangladesh, which has not been completed.
“Based on this precedent, we appeal to states that are concerned about the fate of Belarus. A referral about enforced disappearances, torture, and other crimes against humanity in Belarus in connection to the deportation to other countries can be reported by any state among the 123 parties to the ICC Rome Statute. However, we count primarily on those states that have actively supported the Belarusian aspiration for freedom and democracy. Therefore, we are currently discussing this step with about a dozen states, including Poland, Lithuania, Latvia, Estonia, the Scandinavian countries, and some Western European countries. I hope they will hear us, especially because of the urgency of this situation where people are at risk of dying in prison,” the expert said.
Criminal prosecution must be continued further
The possible start of an investigation into the situation in Belarus by the International Criminal Court does not exclude the creation of a special International Tribunal for Belarus in the future. On the contrary, it makes this more likely. This is not an alternative or a choice between one solution or another.
“The creation of a special tribunal for Belarus, which we also call for, is, however, a long-term project, since its creation requires a treaty or an agreement between states. In addition, it requires the development of a statute for this court and the allocation of funding. This takes time, which we do not have. This court must for sure be established in the future because justice must be ensured. All criminals must be brought to justice and victims and survivors must be provided with compensation, reparation, and rehabilitation. All this needs to happen, but it will take some time. And sending the case to the ICC is the most urgent step that can bring results much faster,” Yuri Dzhibladze explained.
Dzhibladze stresses that the completion of the process of achieving justice will likely take many years.
“In the future, when democratic Belarus becomes a reality, the national courts of the new democratic Belarus will, of course, continue this work. We are dealing with a huge number of crimes against humanity. The ICC and the Special Tribunal will, at best, be able to bring to justice only a small number of key figures responsible for these crimes. Over these three years, the government has persecuted at least 50,000 people. Thousands of people have been tortured. We currently have at least 1,500 political prisoners and many more are being prosecuted. No international court will be able to review all these cases,” he says.
It is extremely important to document crimes of this kind on an ongoing basis and report them to responsible organizations.
“Extensive documentation is already available. Civil society organizations and UN and OSCE mechanisms and investigations have gathered a lot of evidence. To stop the repression and save human lives, we must now focus on the key organizers of the repression and those who have issued criminal orders. And over time, I hope, in the future, when a new justice system appears and a democratic Belarus is created, this work will continue,” Yuri Dzhibladze, head of the human rights and rule of law department at iSANS, noted in a conversation with the PolskieRadio24.pl portal.
The iSANS report makes other recommendations on what international bodies and states should do given that total isolation puts prisoners’ lives at risk. As noted in the report, measures must be taken to provide prisoners access to lawyers, medical workers, family members, and international observers.
Human rights defenders are calling for prosecution of the perpetrators and initiators, investigation of past crimes of enforced disappearances, and for ensuring justice for victims and their loved ones.
The report recommends the urgent involvement of UN human rights bodies such as the UN Working Group on Enforced Disappearances, the UN High Commissioner’s Examination of the Situation of Human Rights in Belarus, and the Special Rapporteur on the situation of human rights in Belarus. The report also states that UN member states and OSCE participating states should put as much pressure as possible on the Belarusian authorities to immediately stop holding political prisoners incommunicado.
Such pressure should include public statements, special events, official investigations, and sanctions against Belarusian officials responsible for committing these crimes.
The report recalls the determination of state parties to the Rome Statute to “end impunity for the perpetrators” of “the most serious crimes of international concern,” such as crimes against humanity. States must properly exercise their rights under the Rome Statute and make a referral of the situation in Belarus, where crimes are taking place, to the prosecutor of the International Criminal Court in The Hague.
Enforced disappearance as defined in international law
As stated in the report published on the iSANS website, the practice of abduction and deprivation of liberty, known as “enforced disappearance”, is associated with a total lack of information about a given individual and is enshrined in international law in a number of acts.
Specifically, on December 20, 2006, the UN General Assembly adopted resolution 61/177, adopting the International Convention for the Protection of All Persons from Enforced Disappearance. According to the Convention, “enforced disappearance” is considered to be “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.”
The Convention states that the widespread or systematic practice of enforced disappearances constitutes a crime against humanity as defined in applicable international law and that it must be recognized as such by States parties. Under the Convention, States parties are required to take “the necessary measures to hold criminally responsible any person who commits, orders, solicits, or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance”.
An earlier UN General Assembly resolution (47/133, December 18, 1992) adopted the Declaration on the Protection of All Persons from Enforced Disappearance as a set of rules applicable to all states.
In turn, in December 2020, all 57 OSCE participating states, including Belarus, adopted a new expanded commitment to prevent and eradicate torture, in which it was recognized that prolonged detention in solitary confinement can contribute to the use of torture and other cruel, inhumane or degrading treatment or punishment, or may itself constitute a form of torture.
The iSANS also calls on all of us to remember political prisoners. It is important to write letters to them. Their addresses, along with brief information about them, can be found on the website of the Viasna Human Rights Centre: https://prisoners.spring96.org/en.
iSANS bears a message from Marina Adamovich, the wife of Mikola Statkevich, from whom there has been no information for more than 250 days: isolation is aimed at ensuring that prisoners are forgotten, and our letters will be proof that this is impossible.
iSANS is an international expert initiative created in 2018 with the aim of identifying, analyzing, and countering hybrid threats to democracy, the rule of law, and the sovereignty of states in Western, Central, and Eastern Europe and Eurasia.