The role of international human rights organisations in the context of the conflict in Eastern Ukraine

Nina I. Karpachova

Department of General Legal Disciplines Law and Management Institute (Kyiv)

Yaroslav Mudryi National Law University

Kyiv, Ukraine

Abstract

conflict ukrainian territories international human rights organizations

LITERATURE REVIEW

Materials of the report of OHCHR on the human rights situation in Ukraine for the period from 16.08. to 15.11.2019, testify to the numerous difficulties experienced by representatives of the local population due to the ongoing conflict in Donbas. In the course of preparing this report, representatives of the OHCHR visited 59 settlements along the line of military clashes, as well as over 20 places of deprivation of liberty in this territory. It explicitly states that “While political efforts to end the conflict continued, civilians living near the contact line experienced daily hardships due to ongoing hostilities, which further deteriorated their socio-economic rights. People living in remote communities near the contact line that are considered “isolated” due to disruption to road infrastructure, internal checkpoints, the contact line, and insecurity continued to experience difficulties in accessing social benefits and basic public services such as health care, medicines and education” . This report provides statistical data, according to which at the time of its preparation since the beginning of the conflict, the loss of civilians in it amounted to at least 3,047 people, including “1807 men, 1,055 women, 98 boys, 49 girls and 37 adults, whose gender is unknown, and also 298 people killed on board Malaysian Airlines flight MH17” Human rights in the administration of justice in criminal cases related to conflicts in Ukraine on April 2020, Office of the United Nations High Commissioner for Human Rights. (2020). Retrieved from https://www.ohchr.org/Documents/Countries/UA/Ukraine- admin-justice-conflict-related-cases-ru.pdf. Report on the human rights situation in Ukraine 16.08.-15.11.2019, Office of the United Nations High Commissioner for Human Rights. (2019). Retrieved from https://www.ohchr.org/Documents/Countries/UA/28thReportUkraine_RU.pdf..

Materials of the report on the human rights situation in Ukraine for the period from 16.02.2020 to 31.07.2020, prepared by the Office of the UN High Commissioner for Human Rights, indicate: “As a result of several spikes in hostilities during the reporting period, most notably in March and May, the total civilian casualties in the first seven months of 2020 increased to 107 people (18 killed and 89 injured), which is ten percent less than in the same period in 2019” Report on the human rights situation in Ukraine 16.02.-31.07.2020, Office of the United Nations High Commissioner for Human Rights. (2020). Retrieved from https://www.ohchr.org/Documents/Countries/UA/30thReportUkraine_RU.pdf.. It is also noted that since the beginning of the armed conflict “There has been no tangible progress in creating a statutory remedy and redress for civilian victims of the conflict”³. At the same time, international organisations welcome the positive initiatives that take place in improving the current legislation of Ukraine. Thus, “OHCHR welcomes the decision of the Constitutional Court to declare unconstitutional Article 375 of the Criminal Code of Ukraine, which provides for criminal liability of judges for making “knowingly unjust” decisions in relation to persons who have committed illegal actions in the conflict zone” Report on the human rights situation in Ukraine 16.08.-15.11.2019, Office of the United Nations High Commissioner for Human Rights. (2019). Retrieved from https://www.ohchr.org/Documents/Countries/UA/28thReportUkraine_RU.pdf.. But, it is also noted that against the general background of the development of events in the zone of hostilities, such facts are insignificant and do not have an impact on the situation in the region. Thus, the analysis of the materials presented in the study shows the complexity of the situation related to the violation of human rights in the conflict zone in Ukraine and the need to resolve it peacefully as soon as possible.

MATERIALS AND METHODS

The present study sets the task to investigate the role of international human rights organisations in resolving issues of human rights protection in the conflict zone in eastern Ukraine. The object of the study is the situation in the zone of military operations in the context of numerous violations of the rights and freedoms in this area through the prism of assessment of the situation by representatives of international human rights organisations. The study is based on the analysis of the latest reports from the Office of the UN High Commissioner for Human Rights, as well as OSCE reports on the situation in eastern Ukraine.

The methodology is based on a combination of quantitative and qualitative approaches to the study of the role of international organisations in the context of the conflict in the Ukraine. The chosen methodology in the context of the issues submitted for consideration seems to be optimal for conducting research in the chosen direction. A quantitative analysis of the information presented in the reports of the Office of the UN High Commissioner for Human Rights, as well as the OSCE mission in the east of Ukraine, creates the necessary basis for an in-depth study of the issues submitted for consideration and contributes to a qualitative analysis of the materials of this study with the formation of final conclusions. In the process of a qualitative analysis of the materials taken for research, the necessary structure of future conclusions is prepared and the main, necessary elements are identified on which these conclusions are subsequently based. The problem of human rights violations during the armed conflict in Ukraine and the role of international human rights organisations in its settlement requires in-depth study, which is broken down into a number of stages in order to form the necessary consistency of conclusions. The chosen methodology of research meets the assigned tasks and contributes to the creation of an optimal structure of conclusions obtained in the course of the study. The problem of assessing the role that international organisations play in response to human rights violations in the conflict in Ukraine requires a comprehensive, qualitative research covering various aspects of this issue. The study of the materials that form the basis of research with the formation of final conclusions based on its results corresponds to the nature of the task and contributes to its qualitative and objective resolution.

A review of the available literature sources covering various aspects of the role of international organisations in the settlement of an armed conflict on the territory of Ukraine, in general, and contributing to the peaceful resolution of issues of human rights observance, in particular, reveals the breadth of assessments and the variety of situations displayed. Sources covering the problem agree on one issue: a large-scale violation of human rights is taking place in the zone of hostilities due to the unwillingness of the warring parties to comply with their obligations for the peaceful settlement of conflict situations.

RESULTS

The assessment of the role of international human rights organisations in the context of the ongoing conflict in Ukraine gave the following results. The Office of the High Commissioner for Human Rights (OHCHR) and the Organisation for Security and Cooperation in Europe (OSCE) have repeatedly sent missions to the war zone on Ukrainian territory to assess the current situation and the possibilities for its peaceful settlement. The OHCHR reports, formed on the basis of materials received during these missions, reflect the current state of affairs in the conflict zone and contain evidences of human rights violations in this area. The diagram below shows the increase in civilian casualties over the years since the beginning of the conflict in Ukraine (Figure 1).

The presented diagram clearly demonstrates the increase in civilian casualties on Ukrainian territory for the period from 2014 to 2019. At the moment, there are cases of violence against the local population, manifested in attacks on civilians, robberies, beatings, torture, and ill-treatment. Such facts are recorded in detail in the reports of the Office of the UN High Commissioner for Human Rights and OSCE missions in Ukraine. The role of international organisations for the protection of human rights in the context of the conflict on Ukrainian territory lies in the following aspects:

1. Monitoring function, which consists in the presence in the conflict zone and recording all the manifestations of human rights violations.

2. Documenting cases of casualties among the local population, death of civilians for reasons related to the conduct of hostilities and the situation in the conflict zone.

3. Development of practical recommendations for resolving issues of human rights observance in the territories involved in armed confrontation.

4. Evaluation of the effectiveness of work and compliance with the rule of law by law enforcement agencies in the zone adjacent to the area of hostilities, and fixing the identified violations.

5. Development of measures to suppress various types of discrimination against citizens affected by the conflict on the territory of Ukraine.

The reports provided by the OSCE mission and the Office of the UN High Commissioner for Human Rights contain information on numerous violations of the rights of citizens to personal liberty and security. There is ample evidence of the responsibility assigned to the Security Service of Ukraine for numerous arrests and detention of persons allegedly involved in the conflict on the side of the anti-government coalition forces. In addition, representatives of the OSCE Mission to Ukraine and OHCHR identified many cases of arbitrary detention of male citizens, without sufficient grounds for sending them to the combat zone as part of the units of the Ukrainian army. Such a practice, according to the norms of current international law, can be qualified as “illegal and incommunicado detention”¹.

Representatives of international human rights organisations recorded massive cases of human rights violations in the indicated territories of Ukraine related to the need to resettle citizens from the combat zone to safe areas of the country. Representatives of international organisations kept such records often at risk to their lives, since in order to obtain objective, most reliable information, they were forced to be directly in the zone of hostilities. Also, representatives of international human rights organisations have identified cases of discrimination on ethnic grounds, expressed in the persecution of people who speak Russian. Such facts discredit the very idea of national self-determination, declared by the provisions of the current Constitution of Ukraine and the principles of equality and self-determination proclaimed by the UN Charter.

The reports of the OSCE Mission to Ukraine record cases of violation of ceasefire agreements between the warring parties, continuing at the time of preparation of this paper. The mission's unmanned aerial vehicles record multiple cases of overcoming trenches on both sides of the contact line at its various sections in the Donetsk region. Below is a summary table of violations of the ceasefire agreement, compiled on the basis of data collected by representatives of the OSCE Mission as of 20 November 2020 (Table 1).

Table 1. Ceasefire violations, compiled on the basis of data collected by representatives of the OSCE Mission as of 20 November 2020²

Thus, representatives of international human rights organisations carried out a large-scale work to collect and process information concerning the facts of human rights violations in the context of the conflict in Ukraine. All conclusions are presented in special reports containing a detailed description of the situation in eastern Ukraine and a sample of statistical data. A thorough analysis of all the data presented contributes to a detailed understanding of the role of representatives of international missions monitoring the situation in the Ukrainian territories involved in the armed conflict in general and in the context of human rights violations in them in particular.

The author of this paper believes that “The military conflict in the east of Ukraine and the blockade of Donbas led to gross, massive, and systematic violations of human rights Report on the human rights situation in Ukraine 16.05-15.08.2017, Office of the United Nations High Commissioner for Human Rights. (2020). Retrieved from https://wwwhumanitarianresponse.info/sites/wwwhumanitarianresponse.info/files/documents/files/20170912_ ukraine_-_19th_hrmmu_report_rus.pdf. OSCE Daily Report No. 277/2020. (2020, November). Retrieved from https://www.osce.org/files/2020-11-20%20Daily%20Report_RUS.pdf. on both sides: hostage taking, torture, rape and ill-treatment, killings and extrajudicial executions, forced labour, looting and robberies, trafficking in persons and weapons, lack of medical assistance and medicines, significant restrictions on the right to freedom of movement, economic blockade, as well as the termination of social payments for pensioners, disabled people, children, women. The listed infringements of rights have the signs of genocide” [2]. The author also notes: “According to Ukrainian sociologists, it will take at least 125 years to overcome the collective psychotrauma of Donbas residents. My personal communication with representatives of different parties to the conflict gives me the right to assert that all its participants received a deep psychological trauma, to overcome which hard work will have to be done in Ukraine for many years” [2].

DISCUSSION

The issues of human rights violations in the context of the conflict in the east of Ukraine are widely discussed in the press and specialised publications. The role of international human rights organisations in the settlement of this conflict and the restoration of violated law in the territories of armed confrontation is also widely discussed. Thus, the information agency RBC-Ukraine interviewed the Vice Prime Minister for the Reintegration of the Occupied Territories Oleksii Reznikov. He noted the need to introduce police units in the territory of conflict zone after the withdrawal of troops. In particular, the Deputy Prime Minister notes the role of the OSCE mission in this issue “My personal opinion is that the dominant feature should be the OSCE police mission with the involvement of the National Police, whose units will be formed according to a special criterion. The police mission in Donetsk and Luhansk regions is a new challenge for the OSCE. In our concept, it should ensure the protection of public order, be armed with small arms and special equipment” [4]. In the materials devoted to the settlement of the conflict in Donbas, RBC-Ukraine notes the importance of expanding the OSCE department in the context of the implementation of the Minsk agreements on ceasefire. The publication notes that one of the main points of the “action plan” should be considered: “an increase in the number of the OSCE Special Monitoring Mission (SMM) by four times (by 1500 people)” [5].

Consequently, an analysis of the OSCE's work in resolving conflicts has shown that the organisation promptly responds to the emergence of conflicts and uses already developed methods for their solution. Despite that, the Russian-Ukrainian war is still the biggest political and operational challenge for the organisation, gradually turning into another `protracted' conflict in the OSCE's area of responsibility that cannot be resolved by this structure. It means that the OSCE, which orients on consensus in the decision-making process, will need the political will of all 57 Member States, which, in the light of decades of Russia's rejection of Euro-Atlantic security architecture, cannot be achieved overnight. The activity of the OSCE SMM to Ukraine confirms the necessity to reform the structure and mechanisms of the organisation for preventing and resolving long-lasting conflicts. Such reform is especially necessary and urgent in the light of the resolution of the Ukrainian conflict and the effective resolution and prevention of upcoming regional and international crises [6; 7].

The activities of international human rights organisations contribute to a high-quality display of the situation in Donbas in the context of the armed confrontation taking place there. Thus, the report of the OSCE Mission to Ukraine dated July 21, 2020 states “The Mission continued to monitor the withdrawal of weapons provided for in the Memorandum, as well as the Package of Measures and the Addendum to it. The SMM observed 11 weapons deployed in violation of withdrawal lines in non-government- controlled areas of Donetsk region, including at the training area”¹. The report also notes that “the Mission also facilitated and monitored adherence to localised ceasefires to enable repairs of power and gas lines in Novozvanivka (government-controlled, 70km west of Luhansk) and Troitske (government-controlled, 69km west of Luhansk); an assessment and maintenance of power lines near Berezivske; as well as vegetation clearance, inspection and maintenance of railway tracks near Vilkhove (government-controlled, 22km north-east of Luhansk); and demining activities near Heivka (government-controlled, 27km north-west of Luhansk)” Daily Report No. 172/2020 Published by the OSCE Special Monitoring Mission to Ukraine (SMM). (2020, July). Retrieved from http://www.publicnow.com/view/F63DAAB03FFC385EECB45A7BBB00CB891409A2EA. Ibidem, 2020. Thus, the reports of the OSCE mission to Ukraine emphasise the positive role of its presence in the conflict zone in terms of overall stabilisation of the situation [8; 9].

The mission contributes to a reduction of tensions and maintenance of stability when the Ukrainnian security forces cannot objectively control the border [10]. The role of the OSCE in the observance of the terms of the Minsk agreements is noted in the materials of the online media outlet “European Truth”. The outlet testifies “According to the fourth paragraph of the first Minsk agreements of September 2014, Ukraine, Russia, and the OSCE agreed “to ensure constant monitoring on the Russian-Ukrainian state border and verification by the OSCE with the creation of a security zone in the border regions of Ukraine and the Russian Federation” [11]. At the same time, it is noted that this point is violated at the current time. The reports on the human rights situation in Ukraine from the Office of the UN High Commissioner for Human Rights show violations of the current legislation in the context of the conflict in the Ukrainian territory. For example, the OHCHR report for the period 04.2014-04.2020 states “OHCHR noted that the pre-trial detention of persons accused of conflict-related crimes and the protracted nature of the relevant judicial proceedings, as mentioned above, often leads to confession of guilt by the accused. Some defendants complained to OHCHR that the prosecutor threatened further detention and continued pre-trial detention if they did not plead guilty, thus pushing them to conclude a plea agreement [12; 13].

Unsuccessful attempts to appeal the decisions of the courts regarding pre-trial detention, as well as the failure of the Government of Ukraine to take measures to properly investigate the allegations of torture and ill-treatment by the accused led to the loss of hope for a fair trial, and the accused considered it necessary to plead guilty” [3]. The same report deals with the problems with the observance of human rights in the non-government-controlled territories. “Taking into account the mandate of OHCHR to promote and protect the human rights of all people, everywhere, this report assesses the human rights impacts of those living in territory controlled by the self-proclaimed “republics” that result from the latter's quasi-state functions. This assessment does not legitimise the self-proclaimed “republics”, their decisions and actions.

Despite the restrictions imposed by both “republics” on access to places of detention and “court” hearings, the human rights violations described in this section have been confirmed in accordance with standard OHCHR methodology” Human rights in the administration of justice in criminal cases related to conflicts in Ukraine on April 2020, Office of the United Nations High Commissioner for Human Rights. (2020). Retrieved from https://www.ohchr.org/Documents/Countries/UA/Ukraine- admin-justice-conflict-related-cases-ru.pdf..

In 2015, the European Ombudsman Institute presented the book “The European Heart of Human Rights” (presentations were held at the European Commission in Vienna; the Diplomatic Academy of the Ministry of Foreign Affairs of Ukraine in Kyiv; at the office of the Ombudsman in the Russian Federation (Moscow)). The position of the First Ombudsman of Ukraine on the situation in the East of the country was brought up. Thus, we can state the existence of extensive materials on the role of international human rights organisations in the conflict zone on the territory of Ukraine. An objective study of them is necessary for a deep analysis of this topic and the formation of appropriate conclusions.

CONCLUSIONS

conflict ukrainian territories international human rights organizations

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