Features of legal regulation of human rights in armed conflicts

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National University “Odesa Law Academy” Odesa, Ukraine

State and Law Khmelnytskyi University of Management and Law named after Leonid Yuzkov Khmelnitsky, Ukraine

Ivan Franko National University of Lviv Lviv, Ukraine

Features of legal regulation of human rights in armed conflicts

Volodymyr F. Pylypenko Department of International and European Law

Pavlo B. Pylypyshyn Department of Theory and History of

Nataliia M. Radanovych Department of Theory and Philosophy of Law

ABSTRACT

The purpose of this study is to identify the problems of protecting human rights and freedoms during armed conflicts based on the analysis of existing international legal and national acts, including their features in Ukraine. As one of the main methods of analysis, comparative analysis is used, which compares the Ukrainian practice of implementing the human rights protection system with the legal framework for regulating the object of research in some countries and at the international level, and analyses international humanitarian law and international human rights law. It is noted that international humanitarian law plays a significant role in the observance and regulation of human rights during armed conflicts. The study describes the international acts of humanitarian law and its main differences from international human rights law. The study analyses the protection of human rights within the framework of international human rights law and within the framework of international humanitarian law, and provides a retrospective analysis of their development. According to the comparative analysis results, it is concluded that the vast majority of modern armed conflicts are not of an international nature; therefore, the specific features of protecting human rights in these conditions are determined. The study analyses the establishment of legal regulation and its changes from the very beginning of the armed conflict in Ukraine and the state of human rights protection

Keywords: human rights, international law, humanitarian law, type of legal regulation, Geneva Convention

АНОТАЦІЯ

ОСОБЛИВОСТІ ПРАВОВОГО РЕГУЛЮВАННЯ ПРАВ ЛЮДИНИ ПІД ЧАС ЗБРОЙНИХ КОНФЛІКТІВ

Володимир Пилипович Пилипенко

Кафедра міжнародного та європейського права Національний університет «Одеська юридична академія»

Одеса, Україна

Павло Богданович Піілііпіішіін

Кафедра теорії та історії держави і права Хмельницький університет управління та права імені Леоніда Юзькова

Хмельницький, Україна

Наталія Миколаївна Раданович

Кафедра теорії та філософії права Львівський національний університет імені Івана Франка

Львів, Україна

Мета даної роботи полягає у визначенні проблем захисту прав і свобод людини в період збройних конфліктів на основі аналізу чинних міжнародно-правових і національних актів, в тому числі їх особливостей в Україні. В якості одного з основних методів аналізу використано порівняльний, за допомогою якого проведено порівняння вітчизняної практики реалізації системи захисту прав людини з правовою базою регулювання об'єкта дослідження в деяких країнах та на міжнародному рівні та аналіз міжнародного гуманітарного права та міжнародного права прав людини. Зазначено, що значну роль в дотриманні та регулюванні прав людини під час збройних конфліктів відіграє міжнародне гуманітарне право. Охарактеризовано міжнародні акти гуманітарного права та його основні відмінності від міжнародного права прав людини. Проаналізовано захист прав людини у рамках міжнародного права прав людини та у рамках міжнародного гуманітарного права, здійснено ретроспективний аналіз їх становлення. За результатами порівняльного аналізу зроблено висновок, що переважна кількість сучасних збройних конфліктів не носить міжнародного характеру, в зв'язку з чим визначено особливості захисту прав людини в цих умовах. Проаналізовано становлення правового регулювання та його зміни з самого початку збройного конфлікту в Україні та стан захисту прав людини

Ключові слова: права людини, міжнародне законодавство, гуманітарне право, тип правового регулювання, Женевська конвенція

INTRODUCTION

protection human right legal

Human rights are inherent in all people, regardless of their nationality, place of residence, gender, religion, language, or any other attribute. These rights are interrelated and are often defined and guaranteed by the provisons of international treaties and international law. Over the past decades, armed conflicts have claimed the lives of millions of people and violated the rights of tens of millions more citizens of different countries. In many armed conflicts, there are violations of international humanitarian law and international human rights law, and Ukraine is no exception. In certain circumstances, some of these violations can be classified as acts of genocide, war crimes, or crimes against humanity. However, the dual codification nature of international humanitarian law (law of war and human rights law) complicates its application and contributes to the duplication of international human rights law.

It was widely believed earlier that the main difference between international human rights law and international humanitarian law lies in the conditions of their application: the first - in peacetime, the second - in armed conflict [1]. Because human rights obligations must be performed in peacetime, during war, and during armed conflicts. In addition, there are no provisions in international law prohibiting their use during armed conflicts. Therefore, international human rights law and international humanitarian law can be considered complementary sources of obligations during armed conflicts. Thus, the human rights committee, in its general comments No. 29 (2001) and 31 (2004), noted that the International Covenant on Civil and Political Rights also applies in situations of armed conflict to which the provisions of international humanitarian law are applied [2; 3]. The human rights council, in its resolution 9/9, also recognises that human rights law and international humanitarian law complement and strengthen each other; human rights require protection equally and that the protection afforded by human rights law continues to operate in situations of armed conflict, taking into account those cases where international humanitarian law is applied as a lex specialis [3].

The authors of this study fully agree with Mohamed Haythem Ahmed Arraji that “The law of internal armed conflicts is increasingly approaching the law of international armed conflicts” [4]. This is primarily due to the adoption of the Geneva Conventions in 19491 and Additional Protocols to them in 1977, which quite exhaustively state the regulation of human rights during armed conflict and hostilities.

In the context of the confrontation between Ukraine and the Russian Federation and the temporary occupation of part of the territory of the Luhanska and Donetska Oblasts and Crimea, the respect for human rights is becoming one of the most urgent issues within the framework of international humanitarian law. In recent years, the number of studies focused on human rights is steadily increasing. In particular, as one of the new methodological areas of research, the type of legal regulation is used - the corresponding vector that determines the ideology of human-state relations. Thus, the general permissive type makes provision for maximum freedom of the individual, which is mainly guaranteed by non-interference of the state in the relevant spheres of public relations [5]. However, certain human rights, due to their high social significance, namely, human rights during armed conflicts, as will be demonstrated further, require stricter statutory regulation to ensure effective measures of the state, both within the state and in external relations, which, in turn, is ensured by the possibilities of specially permissive regulation.

It is from this standpoint that it is necessary to evaluate various means of restricting warring parties (in particular, regarding the means and methods of warfare), protecting the civilian population, determining the status of combatants, prisoners of war and other categories of persons, such as refugees. This issue attracts great attention from international organisations, which publish thematic, analytical, statistical, and normative collections on its various aspects [5; 6]. This subject is sufficiently studied within the framework of the general analysis of human rights [7]. Among Ukrainian scientists, the study of this issue has become widespread, especially after the events of 2014 [1; 8]. However, despite considerable attention to this issue, the problem of implementing the protection of human rights in the legal doctrine of regulating armed conflicts, which tend to shift to the non-state level, has not yet found distribution in the scientific achievements of researchers.

1. MATERIALS AND METHODS

The methodological framework of the study is represented by the philosophy of individualism, which is considered a cultural guide of development that develops the terminology and allows describing the anthropological block of philosophical and legal problems from a new point of view. In each society, collectivist or individualistic ideas dominate at different stages. Which principle prevails, what content each of these concepts acquires, depends on the epoch, the level of material and spiritual culture, location, specific conditions, type of cultures. The philosophy of individualism absorbed all the progressive achievements of the philosophy of law, laid the foundation for a modern understanding of humanism and human rights, and became the foundation of modern European civilisation [9].

The methodological framework of the study comprises analytical and legal methods of research. General scientific and special methods were used. The study investigated the main provisions of the legislative framework at the international, national level, and in certain regional zones. The applied methodology allowed the authors of the study to develop the main lines of work for optimising the application of international legal provisions and their implementation in the national legal system. The methods used made it possible to obtain reliable and reasonable conclusions and results. Comparative analysis was used as one of the main methods of analysis, which made it possible to compare the Ukrainian practice of implementing the human rights protection system with the legal framework for regulating the subject matter in some countries and at the international level. This principle is also used to critically analyse the content of the study of international humanitarian law and international human rights law. At the theoretical level of the analysis, the study investigated the main provisions of the legislative framework for regulating and implementing the protection of human rights at the international, regional, and national levels.

The descriptive method made it possible to present the results of the study in a logical sequence. The research also uses methods of synthesis, analogy, system, classification, and analysis. The normative method is used to analyse aspects of issues that arise within the framework of implementing measures for the legal regulation of human rights in armed conflicts. The use of the analytical method allowed drawing conclusions regarding the level of consideration of international recommendations for the protection of human rights in armed conflicts. The synthesis method made it possible to solve the issues of this study through its application to primary sources on the subject matter. The application of the analytical method to these primary sources allowed the authors of the study to develop recommendations regarding the implementation of international legislation in the national legal system; to highlight the main areas of experience in its application in the process of protecting human rights and the compliance of national systems with the international base and judicial practice. Methods of induction and deduction are used to analyse the content and structure of legislative texts, features of legal provisions in the context of the subject matter.

In the process of analysis, the historical method was used, which allowed investigating the development of the regulatory framework for the protection of human rights during armed conflicts, and its research in the legal doctrine. The genetic method made it possible to identify stages in the evolution of the human rights protection system, to establish their sequence over time and trace how and under the influence of what factors the provisions governing them changed. Due to the structural and functional analysis, it was possible to consider the features and identify changes in the application of human rights protection measures during armed conflicts, as well as analyse their compliance in Ukraine.

2. RESULTS AND DISCUSSION

International human rights law is reflected primarily in the Universal Declaration of Human Rights, as well as in a wide range of international acts (Fig. 1). Therewith, their number is constantly growing.

International legal instruments on human rights

International law obliges states to respect, protect and exercise human rights. In addition, the International Court of Justice often emphasises in its decisions the obligation of states to respect human rights in situations of armed conflict [10-12]. To perform this obligation, states must refrain from creating obstacles or restrictions to the enjoyment of human rights, and protect citizens from violations of their human rights. International humanitarian law plays a significant role in this, being based on four Geneva Conventions (1949) and two Additional Protocols to them (1977), which were ratified by Ukraine (Fig. 2).

In addition, Ukraine has ratified all international agreements on the law of war and armed conflict, and implements their provisions in national legislation, including those aimed at the protection of human rights.

One of the reasons for its establishment and development lies in the need to clearly outline the legal status of participants in armed conflicts of an international and non-international nature. The main subjects of protection are persons who have ceased to take part in military operations for various reasons, and especially the civilian population of an armed conflict living or located in its zone. Determining their legal status is necessary primarily to protect their rights in conflict situations and at the same time regulate their behaviour in these conditions.

International humanitarian law constitutes a set of legal provisions aimed at limiting the consequences of armed conflict for people, including civilians, persons who are not involved or are no longer involved in the conflict, and even those who continue to take part in the conflict, such as combatants. To achieve this goal, international humanitarian law covers two areas: the protection of persons and the limitation of the means and methods of warfare.

Figure 1 International legal acts of humanitarian law

International humanitarian law aims to limit violence in armed conflicts in order, first of all, to ensure respect for the rights of those who do not take direct part in military operations. International humanitarian law regulates the rights of persons affected by armed conflict by ensuring a balance between humane treatment and military necessity.

There is an opinion that the provisions of international human rights law and international humanitarian law differ and are aimed at protecting different objects. The authors of this study believe that the said provisions are similar in essence, and these sub-branches of rights also protect individuals in a similar way. As a major difference, it should be noted that protection under international humanitarian law varies between civilians and combatants, while the international human rights law does not differentiate. The second difference is that the provisions of international humanitarian law are aimed at protecting only certain human rights and only to the extent that they face a specific threat as a result of armed conflicts. Moreover, they are not incompatible with the very presence of an armed conflict. Consequently, international humanitarian law does not include certain general rights, such as freedom of election and freedom of thought, as objects of its protection. At the same time, it protects a wide range of civil and political rights (the right to life of adversaries who have ceased to take part in hostilities), economic, social and cultural rights (the right to health), as well as collective rights (the right to a healthy environment). A considerable block of rights compriese those that are aimed at the situation of the wounded and sick, refugees. In general, in the limited areas covered by international humanitarian law, protection focuses on rights that are better adapted to the specific problems that arise within the framework of armed conflicts.

International humanitarian law takes a different approach to the protection of civilians than to the protection of combatants, which is particularly evident in the conduct of hostilities. Combatants can be attacked until they have surrendered or otherwise ceased fighting, and civilians can be targeted when they are directly involved in hostilities, and the principles of proportionality and caution provide them with protection from the side effects of attacks on military targets and combatants. This difference also affects the protection of individuals who are in the enemy's possession. The protection stipulated by the Geneva Convention III for captured combatants who become prisoners of war differs from the protection of civilians stipulated by the Geneva Convention IV Thus, the former cannot be interned without passing any individual procedure, and civilians subject to protection can be deprived of their liberty exclusively within the framework of the criminal proceedings or under a special decision conditioned by imperative security considerations. International humanitarian law also divides civilians into civilians those subject to protection (usually having the nationality of an adversary) and other civilians who enjoy only limited guarantees. Furthermore, the scope of protection of civilians on the territory of one of the belligerents is more limited compared to protection in the occupied territory [13].

International human rights law is more universal and does not contain substantial differences between the categories of citizens. It is described by the adaptation of the law of each category to the specific needs of the persons included in it (the rights of children, women, disabled people, migrants, etc.). The protection of human rights under international human rights law is vested in the state as a whole, regardless of its institutional structure or form of government. Thus, according to the Vienna Convention, “a party cannot refer to the provisions of its national law as justification for non-performance of agreements”. Meanwhile, the protection of human rights by international humanitarian law is mainly aimed at states that are parties to armed conflict. For example, in the Geneva Conventions1, states and their troops involved in an armed conflict are subject to obligations, and responsibility for violations is borne by direct participants and, if necessary, their civilian leaders.

All participants in armed conflicts are usually divided into two categories: combatants - those who fight, and those who do not fight and are “under protection”. All the provisions of the Geneva Conventions are built around these key groups. Notably, these categories are not constant - in certain situations, a combatant can become a protected person (for example, when they are captured or surrendered as a result of a wound, without losing the status of a combatant).

According to the comparative analysis results, it can be concluded that the vast majority of modern armed conflicts are not of an international nature [14]. They constitute fighting between government troops and armed anti-government groups. Therewith, relations between the parties in these armed conflicts are more fierce than in international wars. This leads to massive violations of the fundamental rights and freedoms of both direct participants in armed conflicts and civilians on their territory. This is also justified by the fact that most often the ranks of illegal armed groups include mercenaries, criminal elements for whom violence is the norm and a source of profit. Therefore, in such armed conflicts, there are a considerable number of civilian casualties and violations of their rights.

In recent years, cases of internal armed confrontations and fighting between the Armed Forces of the government and illegal armed groups of various kinds of separatist or opposition movements have been spreading on different continents. Until recently, these armed conflicts did not have a clear legal regulation. In addition, the overwhelming majority of international humanitarian law provisions are aimed at resolving armed conflicts between states (out of 500 provisions of the Geneva Conventions with additional protocols to them, only 20 are aimed at non-international armed conflicts).

The sovereignty of states also stood in the way of applying the current legal provisions to solving internal problems, which, in their opinion, are the prerogative of the state and do not require internal intervention. Moreover, the extension of international humanitarian law provisions to internal armed conflicts would lead to the recognition of rebels, militants, and other members of armed groups as subjects of international law, which is unacceptable for states. At the same time, international humanitarian law imposes obligations on separatists/rebels, which is confirmed by the decision of the International Court of Justice of June 27, 1986 on the dispute between Nicaragua and the United States: “Article 3 of the Additional Protocol No. 2 to the Geneva Conventions of 1949 imposes obligations on Contras”.

At present, almost all states perceive the need for a legal settlement of armed conflicts of a non-international nature, which pose no less a threat to people's lives and rights than interstate conflicts. The devastating consequences of the civil war in Russia in the 1920s and in Spain in the 1930s were more significant in scale than some international wars. Current situations in Iraq, Syria, Israel, Ukraine, and other countries clearly indicate the need to apply international rules on the settlement of relations and human rights in internal armed conflicts. In this regard, paragraph 7 of Article 2 of the UN Charter states that the principle of non-interference does not apply to the use of coercive measures against states that violate human and civil rights based on Chapter VII of the UN Charter “actions against threats to peace, violations of peace, and acts of aggression”.

Consequently, international law in the field of human rights protection deliberately interferes in the internal affairs of states to achieve the main goal of ensuring the protection and respect of human dignity. International legal protection of human rights in situations of non-international armed conflicts is based on the general principles of modern international law, as well as on the fundamental principles of the law of armed conflicts (humanity; non-discrimination of war victims; international legal responsibility of states and criminal liability of individuals). An essential milestone on this path was the inclusion of a special Article 3 common to all conventions in the Geneva Conventions, which directly covers armed conflicts that are not international in nature and arise on the territory of one of the High Contracting Parties. This made it possible to extend the protection standards of the Geneva Conventions to categories of combatants that were not previously covered by it [15].

As for the situation in Ukraine, its qualification as part of the classification of an armed conflict of an international or non-international nature remains a debatable issue. Regardless, in 2015, international organisations adopted a range of decisions regarding the need to solve a considerable number of problems of ensuring human rights in the context of armed conflict and occupation. This issue became the subject of resolutions of the UN Security Council, the OSCE Parliamentary Assembly, PACE, which considered the issues of refugees and internally displaced persons, illegally detained citizens of

Ukraine, compliance with the Minsk agreements [16; 17]1. From the veiy beginning of the armed conflict in Ukraine, the OSCE took an active part in monitoring and control over the observance of citizens' rights in conflict territories [18; 19]. The armed conflict in Ukraine has led to the need to introduce substantial changes to the current legislation and adopt new regulations. There was also an increase in accession to international provisions and ratification of international documents. Thus, Ukraine has assumed obligations to classify enforced disappearances as crimes in national law, in particular as crimes against humanity. In addition, at the legislative level, the date of the beginning of the temporary occupation of part of the territory of Ukraine is determined - February 20, 2014. This was also largely due to expert opinions that the annexation of Crimea and the fighting in the Donbas Region led to a considerable deterioration in people's rights in Ukraine [13]. The impact of the armed conflict on this process has been noted since 2014 [20; 21].

The legal basis for the status of foreign combatants taking part in the armed conflict in Ukraine on both sides is also defined, which takes into account the provisions of international humanitarian law on these issues. One of the main regulations on the settlement of issues under study was the law on ensuring the rights and freedoms of citizens in the temporarily occupied territory of Ukraine adopted in 2015 [22; 23]. In addition, the current situation has forced Ukraine to make certain changes to the previously adopted provisions of international law, in particular the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms. Certain rights of citizens, both directly on the territory of the conflict and in other regions of Ukraine, in particular the right of free movement, choice of place of stay and residence, have undergone changes in legal regulation. However, in practice, despite a significant breakthrough in legal regulation, the situation with the protection of citizens' rights has not been sufficiently improved. This is also evidenced by the reports of the Office of the United Nations High Commissioner for

Human Rights on various issues related to human rights violations during the armed conflict in Ukraine [24-27].

At the same time, according to the survey results, 25.8% of Ukrainians believe that in 2020, the provision of human rights and fundamental freedoms in Ukraine has significantly worsened. 5% believe that the situation has improved, 25.8% - that the situation has worsened, 18% - that with some rights the situation has improved, and worsened with others, 35.7% believe that almost nothing has changed, 15.6% found it difficult to answer [28; 29]. On a 5-point scale, respondents rated respect for cultural rights at 3.2 points, political rights - 3.12 points, civil rights and freedoms - 2.91 points, environmental rights - 2.46 points, social and economic rights - 2.46 points. The study was conducted on October 6-19, 2020 by the ZMINA Human Rights Centre and the Ilko Kucheriv Democratic Initiatives Foundation with the support of the Human Rights for Ukraine Project, which is implemented in Ukraine by UNDP and funded by the Danish Ministry of Foreign Affairs. The survey was conducted in all regions of Ukraine, except for territories not controlled by the Government of Ukraine.

Recent events caused by the pandemic have increased the difficulties for the people in the war zone. “The closure of entry and exit checkpoints has divided families, deprived people of the opportunity to receive social benefits and restricted access to medical care and education”, said Matilda Bogner, head of the UN Human Rights monitoring mission in Ukraine. The first decision of the ECHR in the case “Ukraine v. Russia” on January 14, 2021, which recognised the fact of human rights violations in the occupied Crimea, should be recognised as a positive aspect of the international level [30; 31].

CONCLUSIONS

World development demonstrates that mass violations of human rights and freedoms, including the most important right - the right to life, constitute the result of armed conflicts, which are largely not international. They are mainly violated by the actions on the territory of the state of certain forces seeking a political coup, seizure of power or secession and the establishment of their own state, pursuing separatist goals, creating illegal armed formations, and conducting open hostilities against the state authorities. In response, the state is bound to use force and introduce changes to the legal regulation of the situation in national legislation in order to preserve law and order, protect the rights and freedoms of citizens.

Consequently, the purpose of international humanitarian law is to protect the lives and rights of people in extreme situations of war and armed conflict, primarily from brute force. The provisions of international law constitute the result of a compromise of various interests, primarily the interests of achieving military goals and humanitarian considerations, which is resolved through the application of humanitarian law provisions that restrict the use of force during armed conflicts of an international and non-international nature. Fundamental changes in the nature of modern wars and armed conflicts introduce substantial changes to national legislation and modern international humanitarian law and international human rights law, including in Ukraine.

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