1. Introduction
Until Russia’s full-scale invasion of Ukraine in 2022, only true connoisseurs of the Organization for Security and Co-operation in Europe (OSCE) knew of the so-called OSCE Moscow Mechanism. Established in 1991, this unique, rapid-response mechanism had only been invoked about a dozen times over the preceding three decades. However, since 2022 it has been activated six times, including four times in respect of Ukraine to examine alleged violations of international humanitarian law (IHL) and international human rights law (IHRL) committed during the conflict, predominantly by the Russian Federation. This demonstrates not only a unique utilisation of the Moscow Mechanism repeatedly in respect of the same conflict, but also provides a ripe opportunity to revisit the modalities of this Mechanism and examine its unique features. The article further assesses the practical operation of the Mechanism, informed by the authors’ direct experience serving on all four mandates in respect of Ukraine.
The article commences in Section 2 by describing the background to the inception of the Moscow Mechanism, explaining its mechanics and providing a brief overview of its invocations prior to 2022. It then turns in Section 3 to a detailed examination of the operation of the Mechanism in relation to Russia’s war of aggression against Ukraine. Section 4 provides a critical analysis of the Moscow Mechanism, demonstrating its unique features related to its nature, the manner of its invocation, the status of its experts and the flexibility of its mandate. Through an analysis of its strengths and weaknesses, anchored in the practical experience of the authors, the article provides unique insights into the practical implementation of the Moscow Mechanism. It argues that the events in Ukraine since 2022, and the repeated invocation of the Mechanism in response to those events, have revealed its full potential as an instrument for advancing international justice and accountability.
2. The historical background to the OSCE Moscow Mechanism
The Moscow Mechanism was established by the (then) Conference for Security and Co-operation in Europe (CSCE)Footnote 1 in 1991, through the adoption of the Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE (Moscow Document).Footnote 2 It was designed to complement the earlier Vienna Mechanism, established in 1989, which provides for the exchange of information and dialogue on issues relating to the CSCE Human Dimension (concerning respect for human rights, the rule of law and democratic standards)Footnote 3 among the CSCE Participating States.Footnote 4 Under the Vienna Mechanism, one or several Participating States may address questions relating to the Human Dimension to another Participating State.Footnote 5 If, however, the latter fails to respond, as was the case in relation to the recent invocations of the Vienna Mechanism with respect to Russia and Belarus,Footnote 6 no dialogue takes place and the Vienna Mechanism is obstructed and offers no further possibilities for dialogue.
2.1. The consultative and adversarial forms of the Moscow Mechanism
The Moscow Mechanism goes beyond the purely diplomatic dialogue offered by the Vienna Mechanism. It entitles Participating States to invite the assistance of a mission, consisting of up to three experts, to ‘address or contribute to the resolution of questions in its territory relating to the human dimension’.Footnote 7 The invitation is issued after a formal activation of the Mechanism, which takes place through a unilateral statement of the inviting State(s). The experts are then selected by the inviting State(s) from a list of experts, which is administered by the OSCE Office for Democratic Institutions and Human Rights (OSCE-ODIHR).Footnote 8 Each Participating State may nominate up to six experts to be included in this list, for a period of up to six years. No expert can serve more than two consecutive terms. By 15 January 2025, 19 (of 57) OSCE Participating States had appointed their experts, and there were 84 experts on that list.
Once established by the inviting State(s), the mission of experts ‘may gather the information necessary for carrying out its tasks and, as appropriate, use its good offices and mediation services to promote dialogue and co-operation among interested parties’.Footnote 9 In reality, missions rarely, if ever, provide good offices or mediation services, i.e. they rarely serve as intermediaries between the conflicting parties, seeking to bring them to the negotiating table or, even, helping them to agree to a solution. It is more common that they gather information, establish facts, analyse those facts in light of the applicable legal standards and, if requested, formulate recommendations to various stakeholders.
In the conduct of their work, missions may receive information from any individual, group or organisation. They may, and usually do, undertake a visit to the inviting State, which is obliged to cooperate fully with the experts in all respects.Footnote 10 Missions are expected to submit their observations (reports) ‘as soon as possible, preferably within three weeks after the mission has been established’.Footnote 11 The inviting State has two weeks to include its comments in the report, after which the report is presented to the OSCE Permanent Council and made public on the OSCE website.Footnote 12 The work of the mission is thereby complete.
In addition to the consultative form of the Moscow Mechanism at the invitation of the State concerned, the Moscow Document provides for another adversarial form of the Mechanism. Under this form, several Participating States may establish a mission of experts, tasking it to address a question relating to the Human Dimension that has arisen in the territory of another Participating State, especially when there is ‘a serious threat to the fulfilment of the provisions of the CSCE human dimension’Footnote 13 in such a State. A mission of this type is usually comprised of a single expert, who has two weeks to produce the report. The cooperation of the State concerned may not be forthcoming, nor is it therefore usually possible for the expert to visit this State.
2.2. The invocation of the Moscow Mechanism prior to 2022
In the first three decades following its establishment (1991–2022), the operation of the Moscow Mechanism was rather sporadic, being activated a mere nine times during those 30 years. These invocations were a mix of both the consultative and adversarial forms, but with the latter being predominant.
In two instances, Participating States invited a mission to deal with a situation on their own territory, under the consultative form of the Mechanism. This occurred in relation to Estonia in 1992 and Moldova in 1993, in both cases with respect to the domestic legislation on national minorities and citizenship.
The remaining invocations of the Moscow Mechanism were all adversarial in nature. They pertained to alleged violations of international law committed during armed conflicts (in Croatia and Bosnia and Herzegovina in 1993, and during the North Atlantic Treaty Organization military operation against the Federal Republic of Yugoslavia (FRY) in 1999), to alleged human rights violations committed in one of the Participating States (the FRY in 1993, the Chechen Republic of the Russian Federation in 2018 and Belarus in 2020) or to specific incidents (investigations resulting from the attack on the president of Turkmenistan in 2003, and the situation in Belarus in 2011 following the 2010 presidential election). In the majority of these cases, the Mechanism was triggered by European Union (EU) States, acting in cooperation with the United States (US) and Canada.
This overview clearly indicates that the first three decades of the Moscow Mechanism were characterised by its scarce invocation, occurring on average once every three years, with a strong preference for the adversarial form of the Mechanism. While it was activated in response to crises such as the conflict in the former Yugoslavia and the war in Chechnya, its use during this period remained rare. It is thus fair to characterise the Moscow Mechanism as somewhat of a recluse in the wider family of international law mechanisms available at the time. Nevertheless, the invocation of the Mechanism in relation to situations arising in the complex contexts of ongoing armed conflicts was perhaps already indicative of its potential scope of action, which had yet to be explored fully. And, indeed, the Mechanism’s reputation as an outlier changed in 2022 with Russia’s full-scale invasion of Ukraine.
3. The winds of change for the Moscow Mechanism: Russia’s full-scale war of aggression against Ukraine
The Moscow Mechanism has experienced a true reinvigoration since the outbreak of Russia’s full-scale war of aggression against Ukraine on 24 February 2022, as its full potential is finally being explored and duly utilised. Indeed, the Moscow Mechanism was one of the first international instruments to be activated in the aftermath of the invasion. Since then, it has already been activated six times: four times in its consultative form by Ukraine and 45 other Participating States, with respect to alleged violations of international law in the conflict between Russia and Ukraine (2022–24); and twice in its adversarial form by 38 Participating States, with respect to alleged violations of human rights in Russia (2022) and Belarus (2023).
The authors of this article participated as experts in the four missions established by, and in respect of, Ukraine. Consequently, Sections 3.1 and 3.2 will primarily reflect upon the consultative form of the Moscow Mechanism, though due to the inter-State nature of the conflict in Ukraine, the missions dealing with the situation on its territory also encountered some of the difficulties typical of the adversarial form of the Mechanism. The four missions are first briefly identified in Section 3.1, with their main findings summarised and certain common features identified in Section 3.2.
3.1. Overview of the four Moscow Mechanism missions on Ukraine
The first invocation of the Mechanism following the outbreak of Russia’s full-scale aggression against Ukraine took place on 3 March 2022, when Ukraine, supported by 45 other Participating States, triggered it in order to ‘address the human rights and humanitarian impacts of the Russian Federation’s invasion and acts of war, supported by Belarus, on the people of Ukraine, within Ukraine’s internationally recognized borders and territorial waters’.Footnote 14 The experts were formally appointed by Ukraine on 14 March 2022 and delivered their report on 4 April 2022. The report was presented to the OSCE Permanent Council and made public on 13 April 2022.Footnote 15
The first mission was mandated to establish the facts and circumstances surrounding possible violations and abuses of IHRL and IHL, as well as possible cases of war crimes and/or crimes against humanity committed on the territory of Ukraine at the start of the full-scale conflict (between 24 February and 1 April 2022). Whilst the mission was not able to verify all cases of violations of international law allegedly committed during that period, it found clear patterns of widespread violations of both IHRL and IHL, including the failure to abide by the principles of distinction, proportionality and precautions in attack, mistreatment of prisoners of war, targeted killings of civilians, rape and other forms of sexual violence as well as abductions, unlawful detention and deportations of civilians. The vast majority of such unlawful acts were attributable to Russia, acting either directly through its organs or indirectly through its proxies in the so-called Donetsk and Luhansk People’s Republics. The mission, moreover, concluded that some of these unlawful acts most likely amounted to war crimes and/or crimes against humanity.Footnote 16
Two months later, on 2 June 2022, the Moscow Mechanism was activated again.Footnote 17 The mission, appointed on 7 June 2022, was given the exact same mandate as its predecessor, being asked to ‘consider, follow up and build upon the findings’ of the first report, for the subsequent period of 1 April 2022 to 25 June 2022. It presented its report to the OSCE Permanent Council on 14 July 2022, with the report being made public the same day.Footnote 18 The mission largely confirmed the previous conclusions but also identified certain new alarming phenomena, such as the establishment and use of so-called ‘filtration centres’ by Russia and its tendency to bypass its international obligations by handing over detainees to its proxies in the two so-called People’s Republics, permitting them to engage in illegal practices, including imposition of the death penalty.Footnote 19
The third activation of the Moscow Mechanism followed on 30 March 2023. This time, the mandate was much narrower, with specific focus on the forcible transfer of Ukrainian children within parts of Ukraine’s territory temporarily controlled or occupied by Russia, and their deportation to Russia. The mission presented its report to the OSCE Permanent Council on 4 May 2023, with the report then becoming public.Footnote 20 It established that, since 24 February 2022, and even prior to that, thousands of Ukrainian children had been forcibly transferred or deported and that this violated the applicable standards of IHL and IHRL. It also found that displaced children had been exposed to re-education (‘Russification’) programmes, and some had had their citizenship changed and/or had been adopted by Russian families, again in violation of IHRL and IHL. Finally, the mission concluded that the displacement of Ukrainian children and their (mis)treatment were highly likely to constitute war crimes and/or crimes against humanity.Footnote 21
The fourth and most recent activation of the Moscow Mechanism with respect to Ukraine took place on 29 February 2024, with the mandate focused on arbitrary deprivation of liberty of Ukrainian civilians by Russia. The report, presented to the OSCE Permanent Council on 25 April 2024 and subsequently made public,Footnote 22 confirmed that, since Spring 2014, thousands of Ukrainian civilians had been arbitrarily deprived of liberty by Russia. It also established that the practice was unlawful under IHL and IHRL due to, inter alia, the absence of lawful grounds for their detention and the unavailability of adequate procedural guarantees (habeas corpus, the right to fair trial guarantees, etc). The report also established that these Ukrainian civilians were exposed to various forms of mistreatment, including extrajudicial killings, enforced disappearance, torture and/or sexual crimes.Footnote 23
3.2. Commonalities and differences between the four Moscow Mechanism missions on Ukraine
Although many parallels can be drawn between the invocations of the Moscow Mechanism in respect of Ukraine between 2022 and 2024, the four missions have not been completely identical in their mandate, composition or tasks. Initially turning to the differences, three features stand out: the scope of the mandate; the composition of the missions; and the tasks.
First, concerning the scope of the mandate, while the first two missions were required to identify and analyse any violations of international law allegedly committed in Ukraine by either party to the conflict, the other two missions had a focused mandate addressing a specific set of violations of international law allegedly committed by a single party, i.e. the Russian Federation.
Second, as to the composition, although all four missions were composed of three experts as required under the consultative form, there was a change in the membership between the first three missions, with only one expert serving on all of them (who was also appointed to the subsequent mission). Interestingly, though, the latter two missions saw no changes in their composition, with the decision to retain the same three experts for both missions—a unique decision in the 30 years of the Moscow Mechanism, but one that sits comfortably within the confines of its mandate and, indeed, had until then been an unexplored possibility offered by the Mechanism.
Third, and finally, in terms of the tasks, all four missions were asked to collect facts, provide legal analysis and identify available accountability mechanisms. The last two missions, however, were also specifically asked to offer recommendations, which they gave in the form of suggesting specific measures that the relevant actors (Russia, Ukraine, third States and international organisations) ought to implement to comply with international law.
Notwithstanding these differences, the four Moscow Mechanism missions on Ukraine also share certain common features, which deserve attention.
First, all four missions were established under the consultative form of the Moscow Mechanism. The territorial State, i.e. Ukraine, agreed with the activation of the Mechanism and in fact took part in the activation itself. It did so in cooperation with 45 other Participating States, which is the highest number of supporting States to have invoked the Mechanism. This number, moreover, remained unaltered in all four cases, bearing witness to the unwavering support from the majority of the OSCE Participating States to Ukraine’s efforts to document violations of international law committed during the conflict and hold those responsible for such violations accountable.
Second, although the mandates formally related solely to Ukraine, due to the inter-State nature of the armed conflict and the temporary occupation of parts of Ukrainian territory by Russia, the missions also had to engage with, and legally assess, acts carried out by Russia as the other party to the conflict. However, since Russia did not support the activation of the Mechanism in any of the four instances, it comes as no surprise that it provided no cooperation to the missions, although all four formally and explicitly sought Russia’s cooperation. Consequently, the missions encountered some difficulties that are more usually characteristic of the adversarial form of the Mechanism, including the impossibility of visiting some relevant geographical areas and gaining access to some of the victims and witnesses.
Third, all four missions relied on a large number of sources, including written materials, such as reports by international organisations and non-governmental organisations (NGOs), official statements by Ukraine and Russia, and online and in-person interviews with representatives of Ukrainian authorities, international organisations and NGOs as well as with witnesses and victims. Many materials were submitted through the dedicated email channels set up by the OSCE-ODIHR. Moreover, with the exception of the first mission, the experts undertook field missions to Ukraine and visited not only Kyiv but also places such as Lviv, Bucha, Irpyn and Hostomel, gathering first-hand information through such fact-finding missions.
Fourth, all four missions applied the ‘reasonable grounds to believe’ standard of proof in their assessment of the factual and legal aspects of the situations under consideration.Footnote 24 This standard was sufficient to draw conclusions on violations of IHRL and IHL and on the responsibility of States for such violations. The missions also considered whether some of those violations were likely to constitute war crimes and/or crimes against humanity. The responsible individuals would, however, need to be identified through criminal proceedings, where a higher standard of proof, that of ‘beyond reasonable doubt’, would be applied and fair trial guarantees would need to be respected.Footnote 25
Fifth, all four missions concluded that large-scale violations of IHL and IHRL had been committed predominantly (the first two reports) or even exclusively (the last two reports) by the Russian Federation. They also noted the likelihood of some of these violations amounting to crimes under international law.
Sixth, in addition to establishing facts and circumstances related to potential violations and crimes, all the missions were asked to provide an overview of relevant accountability mechanisms available at the national or international levels. Some of these mechanisms serve fact-finding purposes (e.g. the International Fact-Finding Commission), others monitor the situation and ensure communication between parties to the conflict (e.g. Protecting Powers and the International Committee of the Red Cross) and others have judicial or quasi-judicial functions (e.g. the International Criminal Court, national criminal courts or the United Nations (UN) special procedures and treaty bodies). Regardless of their specific roles, the aim of all such mechanisms is to prevent and repress violations of international law.
It could be assumed that in pursuing their mandates, these various mechanisms would find the work of the four Moscow Mechanisms feeding into those endeavours. Indeed, the UN Independent International Commission of Inquiry on Ukraine (IICIU), for example, has already noted the work of the Moscow Mechanism missions,Footnote 26 as have the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentFootnote 27 and the UN Special Rapporteur on the Situation of Human Rights in the Russian Federation.Footnote 28 The European Court of Human Rights relied on the findings of previous Moscow Mechanism reportsFootnote 29 and, in light of this, it may be expected that other judicial bodies will follow suit.
4. A new era for the Moscow Mechanism?
Despite the recent application of the Moscow Mechanism in relation to the conflict in Ukraine (and perhaps because of it), there is very strong, critical rhetoric from Russia, supported by Belarus, arguing that the Moscow Mechanism is ‘outdated and redundant’,Footnote 30 and questioning not only the relevance of the Mechanism but also the professional capacities, independence and integrity of the appointed experts. According to these arguments, the usefulness of the Moscow Mechanism has come to a natural end, and its repeated invocations since 2022 are akin to ‘flogging a dead horse’.
However, the evidence points in the opposite direction, demonstrating the Mechanism’s ascendancy. It is clear that the Mechanism now enjoys widespread support, with the four invocations between 2022 and 2024 in respect of Ukraine being made by a record number of Participating States. There was also a high level of support for the other two activations of the Mechanism in the same period in relation to the human rights situations in Russia and Belarus. This is the clearest possible indication that the vast majority of the OSCE Participating States not only view the Moscow Mechanism as relevant and important but also, bearing in mind its repeated invocation, see it as a key tool in the challenging new geopolitical arena in which the OSCE operates. Crucially, all the recent invocations took place without seeking any amendments to the Moscow Document or indeed without altering its essential parameters. These invocations have demonstrated the flexibility of the Moscow Mechanism and have cleverly utilised its full potential.
It thus seems clear that, despite Russia’s assertions to the contrary, the Moscow Mechanism has undergone a rebirth in recent years. It can now be seen as a unique and unparalleled instrument for dealing with allegations of serious violations of international law, thanks to its key features which will now be explored, including the nature of the Mechanism (Section 4.1), the manner of its invocation (Section 4.2), the status of the experts (Section 4.3) and the flexibility of the mandates (Section 4.4). Each of these features can, in one form or another, be found elsewhere. Their combination, however, is truly unique and, while it does place certain limits on what the Mechanism can achieve, renders the Mechanism an unrivalled instrument in the international legal arena.
4.1. Nature of the Moscow Mechanism
There are various mechanisms available at the international level to address allegations of serious violations of international law. Some are judicial or quasi-judicial, and they serve to solve legal disputes between States, to decide individual complaints, to monitor respect for specific legal instruments and to provide legal analyses. Such mechanisms are usually permanent and operate under specific rules enshrined in their founding instruments. Other mechanisms have fact-finding and inquiry tasks. They are often set up ad hoc but may remain in place for years, with their mandates repeatedly extended. Yet other mechanisms provide good offices or mediation services, facilitating dispute settlement. They are, again, often of an ad hoc character and may even be established for individual situations.
The Moscow Mechanism does not fit neatly into any of these categories. It is a sui generis mechanism, which can be used in different contexts and serve diverse purposes. Such agility of an international mechanism, built into its very foundations, is truly distinctive and undoubtedly one of the Moscow Mechanism’s unique strengths. The overall task to ‘address or contribute to the resolution of questions … relating to the [OSCE] human dimension’Footnote 31 can entail a vast variety of activities, such as fact-finding, legal analyses and/or providing recommendations. The Moscow Document also explicitly mentions the possibility for the mission to ‘use its good offices and mediation services to promote dialogue and co-operation among interested parties’,Footnote 32 although, as noted in Section 2.1, this option is rarely used.
The specific tasks of the missions are those designated by the inviting State(s), which enjoy(s) considerable discretion in this respect. This creates a unique flexibility for the Mechanism, rendering it adaptable to a variety of different situations. The four Ukrainian missions were all tasked with establishing facts, providing legal analysis of the facts and gathering information on available accountability mechanisms. The last two missions, moreover, were also asked to formulate recommendations.
The discretion of State(s) to decide upon the tasks of the missions is, however, not unlimited. There are certain activities that the missions may not be tasked with, including, first and foremost, dealing with individual applications and providing assistance to specific persons. While missions often receive such requests, they are not in the position to grant them since their role is to focus on broader patterns rather than providing redress in, or assisting with, individual cases. None of the missions has transgressed this limitation.
This is linked to another specific feature of the Moscow Mechanism: its extremely tight timeframe. While the Mechanism per se is permanent, the missions are set up anew for each invocation and the experts have a mere three weeks from the date of their appointment to accomplish all their tasks and submit their report to the Permanent Council. In respect of the adversarial form of the Mechanism, this term is reduced to a mere two weeks. Although the Moscow Document foresees the possibility of some extension of the term under the consultative form, stating that the report shall be submitted ‘preferably within three weeks’,Footnote 33 this has never been explored.
The short duration of missions makes the Moscow Mechanism a rapid-response instrument, and it is not surprising that, in most cases, the missions’ reports have been the first to be produced by experts at the international level on the subject in question. The significance of this cannot be understated, recalling how often international mechanisms are criticised for their lack of speed in responding to emerging crises. While this rapidity is welcome, there is also a price to pay, as the experts have little time to collect evidence and engage in substantive discussions. Moreover, they have to prioritise certain aspects of a topic and can only reach out to those stakeholders who are available within the limited timeframe. If any events occur upon the completion of the mandate, they are unable to take them into account and, if States want to have those new events scrutinised, they have to establish a new mission. This was, in fact, what happened in relation to the second mission on Ukraine, set up shortly after the end of the first mission in 2022, largely due to the discovery of atrocities committed in and around Bucha that the first mission could not take into account.Footnote 34
4.2. Invocation of the Moscow Mechanism
The Moscow Mechanism is invoked within the OSCE, by one or more Participating States, through a procedure that, uniquely, does not require consensus among all parties involved. Each of these three elements merits consideration.
The OSCE is a rather special regional organisation, bringing together States from Europe, North America and Central Asia. It was set up during the Cold War when the then superpowers, the US and the Union of Soviet Socialist Republics (USSR), were expected to act as guarantors of regional stability, security and wellbeing within Europe. In the current geopolitical situation—which, in many ways, is similar to that of the Cold War—it is the only regional organisation where the US, Canada, the EU and their allies still meet with the Russian Federation and its allies. This makes the OSCE a unique platform, where issues crucial to the States of the region may be given high visibility and issues that would not necessarily attract global attention within the UN or other international organisations can be discussed. The OSCE thus emerges as a crucially important forum to discuss such issues internationally in the presence of all the relevant actors.
The OSCE is founded upon the principle of consensus, meaning that virtually all decisions are taken by an agreement of all Participating States.Footnote 35 At a time of geopolitical division, consensus might be difficult, or even impossible, to reach. This, in turn, may lead to a de facto paralysis of the organisation in many areas of its activities, a situation in which the OSCE currently finds itself.Footnote 36 The Moscow Mechanism, however, is one notable exception to this rule, since it can and indeed has been triggered without the consensus of all 57 OSCE Participating States. At the time of the drafting of the Moscow Document, a deliberate decision was made to circumvent this otherwise sacrosanct principle given that serious violations of international law may potentially be at stake.
Finally, every OSCE Participating State is free to activate the Mechanism in respect of any ‘questions in its territory relating to the human dimension of the OSCE’.Footnote 37 In order to activate the Mechanism in respect of such matters arising on the territory of another Participating State, in the absence of the consent of the latter, six Participating States or, in the case of an urgent procedure, ten such States must act in unison. The requirement of consensus is thus replaced by either the consent of the territorial State or the support of the requisite number of other Participating States. One or more Participating States may also inquire, through the OSCE, whether another State would ‘invite a mission of experts to address a particular, clearly defined question on its territory relating to the human dimension of the OSCE’.Footnote 38 This option was used for the four invocations of the Mechanism in respect of Ukraine, with the inquiry in each instance coming from 45 Participating States. For an organisation that brings together 57 States, to secure the agreement of 45 States surpasses even the strictest of qualified majority requirements. This is a clear indication of the concern among the international community about the aggression in Ukraine, and, in turn, gives the work of these four Moscow Mechanisms a high degree of legitimacy.
The non-consensual nature of the Moscow Mechanism, however, also poses certain challenges as, first and foremost, the States that disagree with its invocation in a particular situation are unlikely to cooperate with the mission. This is typically the case under the adversarial form of the Mechanism but, as the experience of the four Ukrainian missions shows, is also typical of the consultative form when another State is directly involved in the situation occurring in the territory of the inviting State, as is Russia in the conflict in Ukraine. The non-cooperation of one of the key actors constitutes a challenge for the mission, which needs to compensate for it through other means (e.g. by carefully studying publicly available documents and statements of the actor).
While the Moscow Mechanism is invoked by certain States, the conclusions reached by the missions are addressed to all OSCE Participating States, which become acquainted with them through the reports and their presentation at the (always well attended) meetings of the OSCE Permanent Council. It is then also incumbent upon all 57 OSCE Participating States, not just the inviting one(s), to act upon the findings and recommendations of the report and ensure their implementation. Again, no consensus is required and there is thus no way for any State to block the presentation of the report to the Permanent Council or to prevent States from adopting national measures based on the report.
At the same time, there are unfortunately no specific follow-up tools at the disposal of the Moscow Mechanism, nor is there any systematic follow-up carried out within other OSCE structures. This makes it difficult to assess the extent to which the reports make a difference and have a real impact.
4.3. Status of the experts
The full conduct of the Moscow Mechanism missions rests with the experts on the mission. As noted earlier, these are selected by the State(s) establishing the mission from the list of experts appointed by the OSCE Participating States. Experts should be ‘eminent persons … preferably experienced in the field of the human dimension, from whom an impartial performance of their functions may be expected’.Footnote 39 While appointed by States, they serve in their personal capacity and must strictly abide by the principles of independence and impartiality, which are common requirements for such appointments and are similar to, for example, requirements for the UN Special Procedures mandate holders.
When establishing the mission, the inviting State(s) must ensure that it has a diverse and balanced composition. The diversity and balance primarily refer to the nationality of experts. The mission must not include the nationals or residents of the country which is the subject of the mandateFootnote 40 and there may not be ‘more than one national or resident of any particular State’.Footnote 41 It is also useful, although not formally prescribed by the Moscow Document, if the three selected experts have somewhat different legal expertise, so as to allow complementarity in their knowledge. This is crucial for considering broad mandates which commonly cover a number of distinct areas of international law. It is, however, clear that the experts should possess legal expertise to fulfil the mandate, a feature which distinguishes the Moscow Mechanism from the UN Special Procedures where the mandate holders are not always lawyers.
Further, as noted in Section 2.1, the missions may be comprised of up to three members but, thus far, three have always been appointed, and this small number has more advantages than disadvantages. While it could be argued that, especially given the short timeframe of missions, a greater number of experts would be beneficial, in reality, a small number of experts is conducive to reaching a consensus as well as ensuring their availability for the three weeks of the mission and facilitating travel for the fact-finding mission. It is also far more manageable to deliver on a mandate with a tight timeframe with a team of three, and even more so if these experts have previously worked together on a similar mandate. At a time when every hour counts, reducing bureaucratic hurdles and being able to bypass introductions and the necessity of getting to know each other’s approaches makes a lot of practical sense.
The Moscow Document stresses that the inviting State(s) will ‘grant the mission all the facilities necessary for the independent exercise of its functions’.Footnote 42 Experts are not allowed to seek or accept instructions from any State or organisation. Once selected, they sign a Special Service Agreement with the OSCE-ODIHR and have the status of OSCE consultants. Yet they act independently from the OSCE-ODIHR, and the role of the latter in supporting the mission is minimal, confined solely to administrative and logistical support as required by the Moscow Document.Footnote 43 The only exception is the setting up of a dedicated email channel for the submission of information by various stakeholders, although it is up to the experts to manage and process all information received via this email. Other than that, the selected experts work independently and are expected to carry out all the work, including fact-finding and delivery of the report, autonomously. This is different to UN Special Procedures as, while the Office of the High Commissioner for Human Rights (OHCHR) ensures administrative support for the mandate, there will also be a dedicated member(s) of OHCHR staff to support the substantive work of the mandate holder.
As consultants, the experts receive, upon completion of the assignment, a lump sum from the OSCE-ODIHR budget. The OSCE-ODIHR, in cooperation with the inviting State(s), also covers travel and accommodation costs related to the fact-finding mission and the presentation of the report to the Permanent Council. The sourcing of any additional research assistance rests with the individual experts, and it is not surprising that many choose not to spend any (of the already exceptionally limited) time and resources in locating such additional research support. This again differs from UN Special Procedures mandate holders, who receive no compensation for their work and only limited support for their travel costs.
The experts alone decide which stakeholders to engage during the missions, which questions to ask and which sources to consult. Given the present-day plethora of informational sources and multitude of stakeholders, this is not an easy task, especially noting the challenges posed by misinformation and disinformation. However, this approach means that the content of the report is crafted solely by the experts, which, in turn, ensures a high degree of independence and impartiality. Noting all the above, it is therefore fair to conclude that the success of these missions ‘depend[s] on the skills and commitment of the experts’.Footnote 44
4.4. Flexibility of the mandates
The experts are bound by the mission mandate, which is defined in the invocation statement and then, sometimes with more precision, in the letter appointing them as members of the mission. The mandate provides the framework within which the mission shall operate: it identifies the question or problem relating to the Human Dimension of the OSCE on which the experts are to focus, and it specifies the legal standards that they are to apply in their examination.
Some mandates are quite general and broad. For example, the first two missions on Ukraine were tasked to ‘address the human rights and humanitarian impacts of the Russian Federation’s invasion and acts of war, supported by Belarus, on the people of Ukraine, within Ukraine’s internationally recognized borders and territorial waters’.Footnote 45 Other mandates are narrower and pertain to more specific questions or problems. For example, the subsequent two missions on Ukraine were requested to address two concrete violations of international law, namely, the forcible transfer and deportations of Ukrainian children by Russia and the arbitrary deprivation of liberty of Ukrainian civilians by Russia, respectively.
Notwithstanding the degree of specificity of the mandate, there is always some discretion left to the mission to determine how exactly to approach the question or problem submitted for its consideration. The mandate needs to be interpreted and, since it is often drafted in diplomatic rather than strictly legal language, it may also need to be ‘translated’ into the latter. Whilst the mission obviously may not go beyond the mandate and discuss issues falling outside the question or problem identified by the invoking State(s), it is free to decide how to tackle the question, which issues are pertinent, what to prioritise and the depth of its analysis. Moreover, since the missions—unlike, for instance, the UN human rights treaty bodies—are not tied to any specific legal instrument, they may apply a broad range of rules from several areas of international law and they must discuss, and clarify, which rules they consider particularly relevant. At the same time, experts are expected to apply universal and regional standards, as opposed to domestic ones.
The missions also enjoy flexibility as to the methodology they choose to apply in their fact-finding activities and their legal analysis. The Moscow Document does not provide any specific guidance in this respect and, while the general methodological rules, as summarised in the relevant manuals, apply,Footnote 46 it is ultimately up to the experts to decide how to proceed. To ensure transparency, reports conventionally contain a section explaining the methodology used as well as the types of sources relied upon, but the fundamental decisions pertaining to these crucial elements rest with the experts.
Furthermore, the Moscow Mechanism mandates are not subject to bureaucratic constraints such as word limits on their reports, allowing appointed experts the discretion to determine the scope and content of their reports. This stands in stark contrast to, for example, the UN mechanisms, where all reports must comply with the compulsory limit of 10,700 words. This inevitably forces the authors of the UN reports, such as the IICIU, to be selective in the content of these reports, as evidenced by the huge contrast between the length of these reportsFootnote 47 and that of conference papers that are published subsequently.Footnote 48 Although the conclusions reached by experts under the Moscow Mechanism and the IICIU largely overlap, the former provides much more detail, which is helpful to demonstrate the systematic and widespread nature of certain violations (such as arbitrary detention, torture and other forms of mistreatment or rape and other sexual crimes).
5. Conclusion
The quadruple invocation of the Moscow Mechanism in relation to the conflict in Ukraine over the past 36 months is unprecedented in the more than 30-year history of this unique rapid-response tool. Despite Russia’s criticism, it is hard to deny that these invocations demonstrate the OSCE Participating States being galvanised into joint action, leading to the production of a vast amount of hugely important documentation of the violations of both IHL and IHRL in the conflict, which, in turn, are pertinent to any possible accountability and prosecutions for war crimes and/or crimes against humanity. The conflict has facilitated the ascendancy of the Moscow Mechanism from relative obscurity to fulfilling its potential as a key mechanism enabling the investigation of serious violations of international law and highlighting them on a global stage.
The Moscow Mechanism is a sui generis mechanism that can be used in many different contexts and for many different purposes. Most commonly, as seen with its invocations in respect of Ukraine, the missions are tasked with establishing facts, providing legal analysis of these facts, gathering information on accountability mechanisms and, sometimes, formulating recommendations. Experts are appointed ad hoc, and they have two to three weeks to carry out all their tasks and complete their report.
The Mechanism exists within the OSCE, and it can thus be used to focus on situations of crucial importance to the wide region covered by the organisation. Its activation does not require consensus and, in fact, can be at the behest of a single State. When, however, such a decision enjoys the support of 45 (of 57) OSCE Participating States, it demonstrates the concern within the organisation about the situation in question and it also gives a high degree of legitimacy to the work of the mission thus established. The Moscow Mechanism is triggered by OSCE States and they are also the main addressees of the reports and recipients of recommendations, expected to assume the role of watchdog in relation to the implementation of these recommendations. Consequently, it is incumbent upon them to act upon the findings, conclusions and recommendations contained in the reports.
Reports are produced by independent and impartial experts who are selected by the inviting State(s) from the list of experts appointed by individual Participating States. Experts should be able to rely on the cooperation of the inviting State(s), should not be exposed to any negative action by any other State and should enjoy the administrative and logistical support of the OSCE-ODIHR. Aside from these conditions, they are left to their own devices and have a degree of flexibility in interpreting the terms of the mandate, choosing the methodology of their work and deciding on the depth of their analysis.
The specific features of the Moscow Mechanism, which make it a unique, original and unparalleled tool, are the source of its strength, but they also set some limits on what it can realistically achieve. The experts cannot go beyond their specific mandate; they cannot assist in individual cases nor engage in a long-term collection of evidence; they cannot carry out a detailed study visit to the country in question, especially if the country is as large as, for instance, Ukraine; and they obviously cannot force States or any other international actors to implement their recommendations.
However, there are other mechanisms that may advance at least some of these goals, such as international courts and quasi-judicial bodies, longer-term missions of inquiry, law enforcement agencies, etc. These mechanisms should be used to complement the work of the Moscow Mechanism and vice versa. It is important to stress that none of these other mechanisms can fully replace the Moscow Mechanism due to its unique features. It, of course, remains to be seen whether the recent utilisation of the Moscow Mechanism will evolve further and what tangible results it will have, but it has undeniably given a new lease of life to it. The Moscow Mechanism is finally fulfilling its potential, providing the possibility for swift action in relation to violations of international law, paramount in the current geopolitical context. It has risen like a phoenix from the ashes, and has already proven how high it can fly.
Acknowledgements
Both authors are on the List of Experts for the Human Dimension Mechanism appointed by OSCE Participating States. All views expressed in this article are strictly personal. This work has been supported by Charles University Research Centre Programme No UNCE24/SSH/39.
Open access
