At approximately 9:00am on Thursday, October 6, 2016, Rafael Marques Lusvarghi, a Brazilian volunteer who served in the Donbass, defending the freedom of its people, in the period from September 2014 to October 2015, was detained by the Ukrainian State Security Service (SBU) in Kiev’s Borispol Airport. The SBU has since announced that Rafael will be charged under Article 258-3 (creation of a terrorist group or terrorist organization) of the Criminal Code of Ukraine.
The Circumstances of Rafael’s Arrest
It is not immediately clear how Rafael found himself in the capital of Ukraine—the very state against whose brutal assault, terror tactics, and illegal military aggression he defended the Donbass—but it is common ground that he did not come to Borispol voluntarily. Several anecdotal reports suggest that the plane taking Rafael from Dublin to Moscow was diverted to Kiev, landing in Borispol, where SBU operatives were waiting to take him into custody.
According to another source, identified as Rafael’s friend from Brazil, SBU operatives operating under false Russian identities lured him into returning to Russia—after he had left the Donbass—by promising him employment in the field of ship security. He was making the trip to Moscow to discuss the offer. The possibility of Rafael boarding a plane that he knew would land in Kiev is remote. Likewise, a cursory review of available routes reveals no Moscow-bound flights departing from Europe with a stopover in Kiev. Incorporating the Ukrainian capital into the itinerary of a straightforward trip from Dublin to Moscow would require intention, effort and uncharacteristic imprudence on the part of a respected and experienced military officer, and, coming back to reality, is easily avoided by taking the most common routes.
Western Involvement Indicates Alarm Over the Foreign Volunteers in the Donbass
At least one of the sources has alleged that the United Kingdom is the party responsible for the change in the flight plan of Rafael’s plane. If true, this move highlights the UK’s collaboration with the SBU, an agency that habitually practices torture, extrajudicial detention, enforced disappearances, political assassinations, and other such methods of terrorizing the civilian population and opponents of the Kiev regime and its US handlers.
The litany of crimes perpetrated by the SBU, other security agencies, and the multitude of units and groups that are integral parts of the Ukrainian state’s military and police (ranging from the National Guard to the notorious Volunteer and Territorial Battalions, responsible for many of the most heinous crimes) has been documented with substantial proof. This is despite the obvious difficulty in locating witnesses and preserving material evidence during an armed conflict.
Amnesty International, which only recently replaced pejorative references to “the so called DPR and LPR” in its reports with “the self-proclaimed DPR and LPR”, does not hide its biases. But even they have run out of ways to fabricate false equivalences between the crimes of the Ukrainian state and the actions of its Donbass victims. With evidence of Ukrainian state-sanctioned atrocities mounting by the day, the focus is inexorably shifting to the side that has made war-crimes and crimes against humanity the very foundation of its strategy.
A summary of Amnesty’s July 21, 2016 report is excerpted below, detailing unlawful detention, enforced disappearance, and, in the final paragraph, the systematic and widespread practice of torture that over the past two and a half years has evolved into the SBU’s standard set of protocols for dealing with detainees. For many SBU operatives, the use and methods of torture have become second nature, just as rattling off the accused’s rights upon arrest is in other jurisdictions. Years of operating outside the boundaries of the law has shaped an agency that lacks humanity and sees none in its victims.
By comparison, the corresponding summary section for the practices of the Donbass Republics mentions no allegations of torture (referencing only the very vague notion of “ill-treatment”, a stark contrast to the graphic details of the SBU’s torture chambers) and is predominantly concerned with the “vacuum of the rule of law [and lack] of recourse to any effective remedies.” It also bears mentioning that the practice of lengthy (up to 30 days) arbitrary detentions is authorized by legislation in the Donbass Republics. Considering that they are fighting for survival in a devastating conflict with a much stronger neighbour, the measure can be understood—even if not excused—as a rational response. The SBU, for its part, executes its secret detentions that turn into many-months long enforced disappearances and systematic torture in a complete legal vacuum.
Any party that aids and abets in the commission of war-crimes and crimes against humanity shares in the guilt of those who commit them. Whatever harm may come to Rafael would be on the UK’s hands, whether under international law or even as a matter of domestic practice (cf., inter alia, the Alien Tort Statute (28 U.S.C. § 1350; ATS)). The fact that the UK facilitated an ill-disguised rendition of a foreign national not bound to Britain by any form of allegiance can and should further be construed as an act of international aggression.
While it has become common to see Western security agencies fulfil their illegal objectives by delegating the more unsavoury work offshore, the reverse—with the West assisting its puppet regime to apprehend individuals of no intrinsic value except to the satellite—is rare. If the UK was indeed involved in this operation, the interest, concern, and desire to curtail the flow of foreign volunteers that the Donbass experience elicits in Ukraine’s sponsors must be greater than previously thought. If so, the danger to foreign volunteers who defend the Donbass has risen dramatically.
Whoever is ultimately responsible for Rafael finding himself at the mercy of those who equate justice with torchlight lynch mobs and broad-daylight assassinations passed off as suicides, the demonstrative nature of this abduction signals Ukraine’s crass disregard for the peace process. It also makes it clear that the foreign volunteers—following the example of the International Brigades of the Spanish Civil War in defending a people from fascism—now, more than ever, need the help of those around the world who support their cause and respect their sacrifice.
The Illegitimate and Illegal Nature of the Pending Prosecution
Two basic lines of analysis considering the legitimacy of the threatened prosecution demonstrate that Rafael’s arrest should be a matter of concern for all those who support the Minsk peace process. In a display of contempt for both the Protocol of the Trilateral Contact Group (September 5, 2014) and the Package of Measures for the Implementation of the Minsk Agreements (February 12, 2015) that superseded it, the kangaroo court of Ukrainian justice is ready to launch a prosecution without so much as a word or a hand-wave to address the clear violation of Ukraine’s international obligations. Not even a spurious denial has been offered to make a show of appeasing the public, the international community, and the Donbass Republics. Ukraine’s key obligation to extend amnesty to the participants of the conflict in the Donbass was maintained unchanged in the successive Minsk Agreements:
Protocol of the Trilateral Contact Group (September 5, 2014)
- Enact a law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and the Lugansk regions of Ukraine.
Package of Measures for the Implementation of the Minsk Agreements (February 12, 2015)
- Provide pardons and amnesties by means of enacting a law prohibiting the prosecution and punishment of persons in connection with the events that took place in certain areas of the Donetsk and the Lugansk regions of Ukraine.
This obligation ought to serve as an absolute bar to any prosecution Ukraine might concoct against Rafael, however framed, in respect of any involvement that he has had in the Donbass war. And yet, Rafael has been arrested and a prosecution is at hand, and all signs points to the fact that the SBU planned his apprehension in advance and as a template for future operations of this kind. This is both an implicit promise to the Donbass Republics that no amnesty (nor any other undertaking given by Ukraine in the Minsk Accords) will ever be fulfilled, and a symptom of deep deterioration of public governance, accountability mechanisms, and the legal system in the former Soviet republic. The two aspects point to the same relevant conclusion—the physical danger Rafael and others jailed by the Ukrainian security agencies face will only grow over time. This threat makes the task of facilitating his deportation or other legitimate removal from Ukraine all the more urgent.
Considering that Ukraine does not seem conscious of the sheer absurdity of mounting the types of prosecutions it has (twice, not once) agreed to render impossible, the fact that Rafael has had no involvement in the conflict for at least a year is unlikely to deter the regime from trying to make an example of him. And yet, it should. The illegitimacy of pursuing a volunteer who has retired from active duty and left the theatre of conflict is a direct and nearly fatal attack on the very foundation of the Minsk Accords. The unequivocal signal to those who continue to fight Ukrainian aggression against the Donbass is that they will never be safe.
Any supporter of the Minsk peace process (regardless of the side she supports in this conflict) ought to take note of the catastrophic consequences of permitting Ukraine to proceed with Rafael’s prosecution in violation of both the Minsk Accords. The task of averting this dangerous precedent and the course that Ukraine has chosen is critical—as long as one’s goal is peace in the Donbass. Allowed to proceed, Ukraine’s actions will make war the only alternative on the table, burying for good the last shreds of hope for peace.
Rafael Marques Lusvarghi in the Donbass
Some of you may be hearing Rafael’s name for the first time, but he is one of the heroes of the Donbass struggle. He fought to defend the Donbass and its civilian population from Ukrainian aggression in some of the hardest battles of the war—at Donetsk Airport (where he was wounded), at Debaltsevo, and at Gorlovka, among others. Starting his service under Pavel Dremov’s command, he later proved himself in the Prizrak Brigade, and was eventually integrated into the Donetsk People’s Republic’s (DPR) Armed Forces. A year ago, in October 2015, Rafael announced that he intended to return to Brazil and resigned from military service with the DPR. It was in the course of his return to Russia from abroad that he was manoeuvred into an arrest on Ukrainian soil.
Interview with Rafael Marques Lusvarghi
The following excerpt is a brief look at the man who came from half a world a away to defend the people of the Donbass.
Translated by Elena K. / Edited by Gleb Bazov
Question: Rafael, why did you decide to go and fight for Novorossiya? Are your ancestors, by any chance, from Russia? How did you come to speak Russian?
Rafael: [I know that my roots go back to the Russian Empire, and two hundred years ago my ancestors still lived there, eventually moving to Hungary.] Almost a hundred years ago my ancestors left Hungary and settled in Brazil. I speak Russian because for a year and a half I studied here, in Kursk, to become a doctor, but it was very difficult… But apart from all that, I’ve always dreamed of joining the Russian Army, but it was impossible without knowledge of Russian. That is why I came to Russia—as soon as an opportunity to enroll in studies came up.
I’ve loved Russia and the Russian culture since I was a child. In Brazil they would sometimes show Russian cartoons—about the Cossacks, for example. And my father loved one film in particular—“Taras Bulba”—a movie shot in Argentina and based on a novel by Nikolay Gogol. It all started with the cartoons and the films. Later I read a lot, and my interest and love for Russia grew stronger over time.
Question: But why did you decide to go fight in a war? To love Russia from afar is one thing, but to go and die for Russians is another thing altogether.
Rafael. Well, first of all, Russia and Brazil are very closely aligned through BRICS. Whatever is in Russia’s interest also favours Brazil from a geopolitical perspective. BRICS can become a replacement for the hegemony of the USA and Europe in the world—but only if actions finally take the place of the words we hear now.
US influence is very strong in Brazil. Everything that the USA touches turns to rubble: family values and religion, though personally I’m not very religious. Everything becomes somehow meaningless. Take ordinary girls in Brazil, for example: they are not feminists, but they are very selfish. They look for an “American” future.
I want to make a life for myself here. After this crisis started, when Russia started having problems, I thought to myself: “I will go!” War is not a problem for me; I’ve been in the military my whole life.
Question: Very interesting. Where did you serve?
Rafael: When I turned 18, I enlisted in the French Foreign Legion. When I completed my service there, I joined the Brazilian Police and served in the mounted police. During my time in the Legion I met many Russians. They were considered to be the best soldiers in the Legion and were good comrades to me.
Question: Were you deployed to conflict zones?
Rafael: I was with the Legion in Africa, but it was only training. We also participated in the delivery of humanitarian aid.
Question: What are you planning to do after the conflict is over?
Rafael: I plan to stand my ground to the end, and then I would like to stay in Novorossiya. It doesn’t matter where. I will stay where I will be able to stay.
According to globo.com, the Brazilian Ministry of Foreign Affairs has requested that Ukraine facilitate a consular visit to Rafael and provide detailed information concerning the circumstances of his arrest and the prison conditions he is enduring, but no further information has been made available. Silence is deadly where the SBU is concerned. No matter how minor a contribution it might seem, every voice publicly demanding Rafael’s immediate release from the SBU’s clutches increases his odds of survival and mitigates the violence he is undoubtedly facing.
Gleb, I think you should send this article to Glenn Greenwald at the Intercept. You know he’s a lawyer, as well, and lives in Brazil. I think he would be very interested in this case of rendition and could bring it to the attention of the Portuguese speaking population and, maybe, some in their government. At the very least it could get play at the Intercept.
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Thank you for the suggestion! That’s a good idea. GB