oDR: Opinion

Protesters must work together to document crimes in Belarus

If Belarusian protesters want to ensure justice for police violence, then they have to document crimes as they happen.

Wayne Jordash
30 September 2020, 12.01am
(c) Kommersant Photo Agency/SIPA USA/PA Images. All rights reserved

As mass protests broke out in Belarus following the stolen presidential election on 9 August 2020, in which Alyaksandr Lukashenka claimed to have been re-elected with 80.23% of the vote, it was no surprise that the so-called “last dictator of Europe” had Ukraine’s 2014 Maidan at the forefront of his mind. As he watched the main opposition candidate Sviatlana Tsikhanouskaya challenge the results and unprecedented mass protests unfold across the country, he claimed: “There will be no Maidan, no matter how much anyone wants one. People need to quiet down and calm down. […] The response [to the protests] will be appropriate. We will not allow the country to be torn apart.”

Lukashenka is right to fear a Maidan in Belarus. Maidan refers to Ukraine’s Euromaidan, a wave of popular protests that started in the Maidan square in Kyiv in November 2013 and spread across the country. The protests were in response to the government’s decision to suspend the signing of an association agreement with the European Union, widespread abuse of power and rampant corruption, leading to the overthrow of President Yanukovych’s autocratic regime and the ushering in of a new government and democratic reforms. The last thing he (or Putin, his dictator-in-arms across the border) wants is a Maidan in Belarus.

But, then again, neither should the people of Belarus – at least not without the learning of some valuable lessons. Though synonymous with the overthrow of a kleptomaniac regime and people power, Maidan also epitomises how outgoing regimes may easily escape accountability for crimes against humanity perpetrated as part of their last-ditch efforts to hold onto power.

As the Maidan protests climaxed and Yanukovych’s government struggled to contain the democratic tide, state violence escalated on the streets and in the courts. Between November 2013 and February 2014, along with more than 100 civilians shot dead by police snipers, came brutal beatings, torture and disappearances by security forces, mass surveillance of peaceful civilians, suppression of the media, fabricated criminal charges against protestors, the removal of injured persons from hospitals, the banning of all peaceful protest, and, to top it all, amnesty for those who had used committed crimes against peaceful protestors.

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This is the mistake of Maidan that the brave Belarusian people must avoid: the commission of widespread and systematic crimes against the protestors and impunity for those responsible

When examining these crimes, the International Criminal Court (ICC) Prosecutor found there to be almost enough evidence in relation to the commission of crimes against humanity, including murders, torture, persecution and other inhumane acts. Despite finding that these acts could constitute an “attack directed against a civilian population” pursuant to or in furtherance of a state policy, the ICC prosecutor found they did not reach the threshold of crimes against humanity under Article 7 of the Rome Statute, which provides the ICC’s basic law and defines the acts and the context that together constitute a crime against humanity.

In particular, as defined in Article 7 of the Rome Statute, crimes against humanity require more than a plan (to violently target protesters and conceal those attacks) and an attack on a civilian population. It must also be proven that an act such as murder, imprisonment, or torture (as defined in Article 7) took place in the context of an attack on the civilian population that was widespread (number, intensity and geographical spread of Article 7 acts) or systematic (deliberate, coordinated and methodical commission of Article 7 acts, not reactive).

For the ICC prosecutor, these essential contextual elements were missing, or at least this was where the information supplied was deficient. Despite the thousands of crimes committed by the government, police, prosecutors and judiciary and others during Maidan, the ICC prosecutor ultimately concluded that she had insufficient information to draw these conclusions, even on a preliminary basis, essentially ruling out the prosecution of those responsible at the ICC.

Domestically, accountability for the multitude of state-sponsored crimes during Maidan have not fared any better. Despite the efforts of many skilful and dedicated prosecutors, six years after the crimes, Ukrainian courts have conducted a mere handful of trials and convicted and sentenced even less. Of course, some of these deficits are the result of high-ranking perpetrators being provided with safe haven in Russia and a creaking, Soviet-style judicial system, which will take a generation or more to fix. But much concerns the unavailability of critical evidence, without which the scale of the crimes, their systematic nature, and the identity and links between those administering the beatings on the ground, the mid-rankers giving the orders, and the higher ups controlling their actions, cannot easily be mapped so long after the events. With the best will in the world, if it is not possible to identify the individual police or government forces on the ground, at least by group or organisation, it is highly unlikely that the government officials operating in secret, can be shown to be responsible for their actions.

This is the mistake of Maidan that the brave Belarusian people must avoid: the commission of widespread and systematic crimes against the protestors and impunity for those responsible, including Alyaksandr Lukashenka.

By Thursday, 13 August 2020, more than 6,000 people had been arrested in connection to the ongoing protests. Along with internet shutdowns, security forces and riot police have used rubber bullets, flash grenades, slugs, blanks from Kalashnikov-type rifles, teargas and water cannons to break up crowds of demonstrators. Detainees include journalists, bystanders and minors. At least two people, including one in police custody, have died. More than 1,500 people arrested during the protests went missing. People detained in police stations, jails and makeshift prisons report ill-treatment and abuse by police officers, including severe beatings with belts and batons, threats of rape, being forced to strip naked on camera and kneel on the floor, cramped conditions in holding cells and lack of water and food. Detainees further report fair trial rights violations, namely incommunicado detention, forced confessions, absence of legal representation as well as consular notification and access for foreign nationals and lack of any public hearings.

There can be little doubt these human rights violations may amount to the crimes against humanity, including of murder; imprisonment or other severe deprivation of physical liberty; torture; persecution on political grounds; enforced disappearances and other inhumane acts (including excessive use of force causing serious injuries). However, as the Maidan experience has shown, there can be little doubt that, despite the mass of these atrocities, the prospects for accountability are fragile and depend upon action now.

In order to avoid the fate of the victims of Maidan, Belarusian protestors must do more than protest. Whether the crimes arrive at the ICC (through the unlikely prospect of a UN Security Council Referral, or the acceptance of the jurisdiction of the court by a new government) or they are reported to the UN Special Procedures and the Human Rights Committee, including the Working Group on Arbitrary Detention; the Special Rapporteur on the promotion and protection of freedom of opinion and expression; the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Special Rapporteur on the situation of human rights in Belarus; the Working Group on Enforced or Involuntary Disappearances or the Committee on Elimination of Discrimination against Women (CEDAW), their adjudication or declaratory force depend upon an effective documentation of many aspects of the crimes, not in years to come, but now.

The opposition in Belarus have already begun this difficult task. Several local NGOs are also working to document human rights violations, including the Belarusian Association of Journalists; Belarusian Helsinki Committee; Legal Transformation center (Lawtrend); and the Viasna Human Rights Center. These efforts are being mirrored by a range of international NGOs, including, Human Rights Watch; Amnesty International; International Federation for Human Rights (FIDH); World Organisation Against Torture (OMCT); Truth Hounds; Bellingcat and International Partnership for Human Rights.

Consequently, numerous victim statements that corroborate audio recordings of beatings inside the detention centres and images and videos of injured victims have already been obtained. This, however, is not sufficient. If true accountability is to result, the work must go further.

Protestors and victims must document both the acts that may constitute crimes against humanity and those that clarify the context if it is possible to do so safely and without causing any harm and to a minimum standard. In other words, they must document and record not only the beatings and injuries of the victims, but all salient details of the crimes. This includes the names of the perpetrators and the units that are directly responsible for the violence, as well as the patterns of those crimes and the linkage evidence that illuminates how they are controlled or commanded by the officials of civilian state agencies, journalists, businesses, prosecutors and the courts.

This is no easy task. To be useful, the available information must be collected in line with international standards which requires focus and knowledge. Mapping and documenting crimes against humanity is a difficult and complicated exercise, especially when perpetrators work hard to conceal identities, their links to government agencies, the true extent of the acts and the injuries and in turn the overall nature of any criminal plan.

However, as the Maidan experience shows, it must be done. Most importantly, it requires the adoption of the minimum international standards outlined in Global Rights Compliance’s mobile documentation tool “Basic Investigative Standards for International Crimes”. Following international standards in relation to documenting the elements of crimes against humanity or violations more generally is vital if a full record is to be preserved, not only for prosecutions but to ensure truth, inspire reform and to prevent recurrence in the difficult years ahead.

Moreover, it cannot be done by human rights groups or civil society activists working alone or jealously guarding their own documentation, as is typical in these environments. This approach will lead to a fragmented picture and increase the risk that the widespread or systematic nature of the crimes remains concealed.

As Maidan has shown, if human rights groups and civil society groups do not join hands to ensure a comprehensive record, there is a good chance this vital task will not be done at all. Even if Lukashenka is ousted, much of the Belarusian state apparatus, including the police, will remain in place. There will be huge disincentives for them to investigate their own crimes, even if they must belatedly pay attention (or lip service) to the rule of law and more democratic norms. Moreover, despite the ubiquity of mobile phone cameras, the identification of perpetrators so long after the event and through poorly taken footage, will likely prove impracticable. Time and focus are of the essence.

In other words, the burden of documenting those crimes must rest upon protestors and opposition forces – and it must be done now. This is the best way to ensure effective trials of those most responsible leaders or otherwise make full use of the international human rights system to name and shame those who control the perpetrators on the ground. Only they, perhaps, can ensure against the mistakes of Maidan.

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