Prisoners of semantics

KIEV, Ukraine — Nadiya Kalyn rushed home to watch the two-minute video when it appeared on an anti-government YouTube channel in October. She hadn’t seen her husband’s face since he was taken prisoner by Russian-backed separatists in Donetsk more than a year before.

Prisoners are fed three times daily, her husband Oleksandr Kalyn tells the camera. Heavily prompted by the interviewer — a former Ukrainian parliament deputy turned anti-government propagandist — and speaking Russian instead of his native Ukrainian, the captured soldier says he does not plan to return to fight.

Do not send your sons to a “war that no one needs” he entreats Ukraine’s mothers.

Sitting in her home in the drab outskirts of Kiev, Nadiya says she knew right away that her husband was lying.

“Even if you talk to him in Russian, he replies in Ukrainian, and here he is, speaking Russian,” she says. “But of course, if you’re locked up there for a year or more, you’re going to speak whatever language they tell you to.”

On screen, Oleksandr, who is now 41, looked like “half of what he was,” she says. He had lost weight since his capture in September 2015. “And his look — it’s a stranger’s.”

Ukrainian servicemen during a counterattack near Luganske in the Donetsk region | Vadim Kudinov/EPA

Oleksandr was sent to fight Russian-armed separatist forces in eastern Ukraine in April 2015. Nadiya didn’t want him to go and threw away two army call-up papers before a third notice arrived in the mail, threatening prison if he didn’t comply.

He went to the front and was taken prisoner by the other side. The Ukrainian government quickly included him in a list of exchanges to be made with the separatist regimes, under the internationally-agreed Minsk Accords intended to end the almost three-year conflict and bring prisoners home.

Well over a year later, Kalyn is still waiting. The reassurances she had relied on to make sense of her predicament have crumbled. The war her husband was drafted into is not a war, and he should never have been sent there in the first place. And the Minsk Accords have complicated rather than simplified his fate.

The problem is, at heart, semantic. Ukraine blames the conflict on “military aggression provoked from outside” and still calls its own military actions a law-enforcement “anti-terrorist operation.” Russia denies involvement, and no country — including Ukraine — or organization has officially called the fighting that has cost nearly 10,000 lives what it really is: a war.

Kiev currently lists 116 civilians and military personnel to be returned, of whom the other side has confirmed the whereabouts of 47

As a result, prisoners are not considered prisoners of war as defined and protected by international humanitarian law. Along with over 700 other known conflict-related detainees held by both sides, Oleksandr has no legal protections while incarcerated, no effective process for being released, and is unlikely to receive any compensation or anything resembling justice if freed.

Instead, “today we have a state of total legal ambiguity for people who are prisoners,” says Kiev-based lawyer Vitaliy Tytych.

‘All for all’

The vaguely worded Minsk Accords agreed by the “Normandy Four” — Ukraine, Russia, France and Germany — in February 2015 make no mention of prisoners of war. Among the political and security issues to be resolved — such as an amnesty law and restoring Ukrainian control over the eastern border with Russia — the accords call for the “release or exchange of all hostages and illegally held persons on the principle of ‘all for all.’”

The accords do not specify responsible bodies or mechanisms for release or exchange, and both sides have attempted to use prisoners as a bargaining chip on other issues.

The wording “gives scope for different interpretations,” remarks Iryna Herashchenko, Ukrainian parliamentary vice speaker and member of the Minsk humanitarian subgroup negotiating for prisoner release. Neither side has been able to agree on what exactly “all for all” means, or how many people it refers to.

Photos of Nadiya Kalyn and her son in their Kiev apartment | Emine Ziyatdinova for POLITICO

Kiev currently lists 116 civilians and military personnel to be returned, of whom the other side has confirmed the whereabouts of 47. The other side now lists some 650 held by Ukraine. According to Herashchenko, that number includes people arrested for crimes unrelated to the war or whose detentions predate the conflict’s beginning in 2014.

The Ukrainian government considers people detained by the other side to be illegally held hostages, since the self-declared separatist People’s Republics of Donetsk (DNR) and Luhansk (LNR) are not internationally recognized as state entities — and are considered terrorist organizations in Ukraine. Russia is ultimately responsible for the fate of prisoners taken by the separatist regimes, Herashchenko insists.

The International Committee of the Red Cross (ICRC), which has a mandate to visit prisoners of war, finally gained access this January to a remand prison in Makiivka near Donetsk, where more than 30 prisoners, including Kalyn’s husband Oleksandr, are being held. These detainees have not been allowed phone calls for the past 10 months, and could send only three letters to their families via international organizations.

Before the ICRC gained entrance, the interviewer who filmed Kalyn’s husband in October visited detainees at least twice. The DNR has publicly paraded prisoners in central Donetsk, and footage of their capture, mistreatment and questioning is available online.

Some prisoners were filmed again for Russian and separatist TV in February when Nadiya Savchenko, a former military pilot turned Ukrainian member of parliament, made a highly public visit to the same Makiivka prison.

“It’s important these [imprisoned] people are shown, to prove they are alive,” Savchenko says, when asked about the public footage of her visit in an interview in a Kiev café in March. She published the names of all the prisoners she saw, including some who were not included in Kiev’s exchange list, on her Facebook page.

Savchenko herself spent two years in prison in Russia after she was captured while fighting with Ukrainian forces in 2014. She was released last year in exchange for two Russian military officers captured in the East. Ukraine made public the officers’ identities and questioning, in an attempt to prove Russian involvement in the conflict.

Legal limbo

Kiev claims that people held by Ukrainian law enforcement in relation to the conflict are criminals legally sentenced for offenses such as terrorism or separatism. By that logic, they can qualify for release or exchange only if they are pardoned or have served their sentences.

Tytych, the Kiev lawyer, calls this “putting the goal ahead of the law” — a back-to-front justification for holding detainees for the purpose of exchange.

Nadiya reads a letter sent by her husband, held in Eastern Ukraine since 2015. The second letter he sent, above, starts with the sentence: “I am alive and well” | Emine Ziyatdinova for POLITICO

The policy has led to a paradoxical situation: While the Ukrainian government insists some individuals on the DNR/LNR list cannot be exchanged until they have served out long sentences, others, because they have already completed short sentences, are simply being released with no obligation to return to the breakaway regions. And many, indeed, do not want to.

“We’re a law-abiding state,” Herashchenko insists. If a detainee is on the other side’s list for exchange “but the [Minsk] release program is not moving and he has served his sentence, we’re not going to keep him; he can go,” she says. “So their list is getting shorter and ours is not. It’s a problem.”

Ukraine has also released some conflict-related detainees it was holding in secret without charge or pardon, after international human rights organizations publicized their plight. Representatives of the other side, meanwhile, have said they are “not interested” in people arrested by Ukraine on separatism charges, but only in the exchange of military prisoners.

The Ukrainian side is not only charging detainees in order to exchange them with the other side. It recently initiated a case against one of its own soldiers after he was released by the DNR. Ivan Bezyazykov, a Ukrainian army colonel taken prisoner in August 2014 and freed in a secretive operation two years later, was accused in November 2016 of state treason and assisting a terrorist organization during captivity.

Prisoners’ relatives are worried their own could face similar charges for actions they may have taken under unknown pressures in a lawless environment while kept prisoner. Tytych, who is Bezyazykov’s defense lawyer, says the case illustrates why the legal status of prisoners needs clarification. “It’s chaos,” he says. “Any moment and any individual’s action can be interpreted however you want, and qualify as a crime.”

“They’ll exchange him soon, of course they will, how long can they keep him?” — Nadiya Kalyn, to her son

Savchenko remarks “It’s the same as with me — yesterday’s hero is no longer a hero.” Since her release and ensuing career as an opposition politician, she has been frequently accused of having been recruited by Moscow in Ukrainian media.

Ukraine “shows off some [released prisoners] as heroes, destroys others … and just loses and ignores all the rest,” Savchenko says.

Losing hope in Minsk

To break the prisoner deadlock, the question should be disassociated from political and security negotiations, Herashchenko argues, so that prisoner exchange can no longer be made contingent on other issues included in the Minsk Accords.

“It is not a political question, but a humanitarian question,” Savchenko says.

Tytych and other human rights lawyers also call for an overhaul of the Minsk format because its ambiguity fails to protect prisoners or recognize Russia’s role in the conflict. In order to call detainees, like Kalyn’s husband, prisoners of war, Ukraine must officially declare itself to be at war with Russia.

Iryna Herashchenko, the president’s humanitarian envoy at the Minsk peace talks | Emine Ziyatdinova for POLITICO

In the meantime, the conflict’s legal and linguistic tangles obscure the fact that these prisoners — or hostages, heroes, traitors — are people “just waiting until someone brings them home,” says Kalyn.

She and her 13-year-old son regularly watch the propaganda video of Oleksandr. It’s the only chance they have to see their husband and father.

“Never mind,” Kalyn tells her son. “They’ll exchange him soon, of course they will, how long can they keep him? Soon dad will be home and we’ll heal him, we’ll feed him up.”

Lily Hyde is a British writer and journalist. She is the author of “Dream Land,” about the Crimean Tatar deportation and return to Crimea.