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Armed conflict in the East of Ukraine under the scope of compliance with human rights

02.11.14 | Gennadiy Tokarev, Kharkiv Human Rights Protection Group

Commitment of violent crimes against a person

According to the information of the United Nations High Commissioner for Human Rights[1], there were at least 3, 707 people killed, and 9, 075 wounded in the East of Ukraine from the middle of April to 15 October. At the same time, office of the UN HCHR and the World Health Organization suppose that the real number of dead people is considerably higher.

As pointed out in the UN High commissioner’s report, more than 5 million inhabitants of the regions directly affected by the conflict cannot enjoy their basic rights. During these six months they have been deprived of their basic right to education, health care, housing and opportunity to earn a living. The report pays attention to the fact that as a result of warfare 40 thousands small and medium factories and enterprises were closed in Donetsk and Luhansk regions. Thousands of people have lost their jobs.

Also, habitants of regions under the control of DNR are being used as a “penal brigades” for correctional work including being performed close to the battle fields with the risk to the persons be injured or killed, what is considered as a gross violation of humanitarian law. There are cases of execution people for pillage.

According to the reports of the Security Service of Ukraine (SSU), at least 1000 persons were detained under the suspicion of having committed crimes relating to a terrorism or separatism from the middle of April to 25 August. After 25 August, 52 people were detained on suspicion of having committed the same sort of crimes. The first obvious proof of extrajudicial executions cane with the discovery of the bodies of two pro-Ukrainian activists in Donetsk region on 22 April. According to the information of human rights organizations, more than 400 persons have disappeared and this number is not definitive.  

During the armed conflict illegal detentions and criminal prosecutions of Ukrainian soldiers, captured by separatists or surrendered and moved into the territory of Russian Federation, took places many times. The well-known example of such kind of cases is the abduction, detention and prosecution of Ukrainian pilot Nadia Savchenko.

According to the information of the of Mass media institute monitoring violations of journalists’ rights, six journalists were killed who were carrying out their professional responsibilities in the anti-terrorist operation (ATO) zone (five Russians and one Italian)[2].

On 17 August, after establishing the parallel governing structures in the DNR and LNR, so-called ‘Presidium of Council of Ministers of DNR’ adopted the document, which was called ‘Criminal Code’ containing provisions on imposing the death penalty for a number of serious crimes. The ‘Presidium’ also gave permission for founding the military tribunals on the territories under the de-facto control of DNR. As a result, the executions without any trials could be held as an imitation of exercising a lawful power.

The problems of calling to responsibility and punishment of persons, who were involved in murders, torture and other forms of ill-treatment

During the events in the East of Ukraine, there were recorded many cases of using torture and other kinds of ill-treatment of the captives on the part of members of the separatist armed troops in Eastern Ukraine. Intentional and unlawful executions of captives - civilians, soldiers and members of armed groups or suspected of espionage or the collaboration – is a flagrant and serious violation of international humanitarian law which is considered as a war crime.

International law prohibits amnesty and the similar measures in relation to the actions which were conducted in the context of a conflict and considered as crimes according to international human rights law or humanitarian law, and which prevent punishment of the perpetrators and full reparation to the victims.

Accordingly to the provisions of Minsk protocols about cease-fire in Donbas, the new Ukrainian Law “On the special order of municipal government in some regions of Donetsk and Luhansk districts”, adopted on 16 May 2014, set up the prohibition of criminal or administrative persecution, taking to the responsibility and punishment of persons – the participants of the events on the territory of Donetsk and Luhansk regions, without any kind of reservations. Moreover according to this law, it is established special procedure for appointing chiefs of prosecutor’s offices and of the courts with participation of the local government administration. It seems very doubtful, that the prosecutors and presiding judges appointed by anti-Ukrainian local government administrations would start criminal prosecutions against persons committed the terrorist crimes during these events in the East of Ukraine.

From the other side, Ukrainian legislation had been amended with the received provisions about possibility of temporary limitation of human rights and freedoms in the ATO zone. Later, chiefs of SSU and of the Ministry of Internal Affairs of Ukraine were authorized with the right to use the preventive detention (arrest) persons under the suspicion of having committed the terrorist activity for the term up to 30 days. As well, the prosecutors have been authorized with the right to issue the pre-trial detention order regarding to the persons for the same term. All these amendments, regardless the aim to combat terrorism during this very difficult situation for the country, do  not meet the requirements of the Constitution provisions, moreover two last ones also do not meet the requirements of the Code of Criminal Procedure and have hidden threads of arbitrary deprivation of people’s freedom beyond judicial control.

Violation of International Humanitarian Law

It is being constantly received the information about combatants who are located in the scope of civil housing places mixed with civilian population, endangering the lives of civilians. To allocate military objects in the civil regions, separatists didn’t take all appropriate measures to protect civil population and in this way put civilians in danger which is violation on law of war. Conducting military operation in the dwelling areas and other civil places, separatists must share the responsibility for the counter-attacks of Ukrainian military.  Using the weapons of ‘non-selective’ effect in the people’s settlements, such as unguided missiles and mortars, violates international humanitarian law and can be considered as a war crime. Peaceful population who wants to leave the zone of conflict gets very often under the fire. The most impressive was a crime committed by the separatists opened fire on the convoy of cars with civilians who wanted to get out from Luhansk. As a result of the action, at least 17 people has been killed and six been wounded.

According to the UN and Amnesty International data, armed groups and some volunteer battalions controlled by Ukrainian military command violate international humanitarian law, including principles of military necessity and proportionality. In particular, there is information about the extrajudicial executions committed by Ukrainian combatants of 4 persons in the ATO zone. It should be mentioned, that such actions from the Ukrainian fighters’ side had a single character and had been the reaction to the heinous acts of terrorists, which anyway were later brought under the control of the leadership of ATO, in the contrast to the widespread killings of supporters of the integrity of Ukraine having committed by the terrorists of DNR and LNR. There are a lot of notifications in the Internet with the references to the Human Rights Watch about ‘widespread use by governmental forces of cluster bombs’, at the same time representative of OSCE in Ukraine stated about absence of such evidence[3].

The problems of prisoners and persons serving sentences

Regardless on the fact, that killing of prisoners is strictly forbidden according to the Geneva Conventions, separatists threaten to execute all prisoners who serve life sentences on the basis of the so-called “Criminal Code” of DNR. On 20 August, two artillery shells hit the Makyivka colony 32 resulted to the murder of two prisoners and injuring of six inmates. Currently about 10 000 people are being held in the penitentiary institutions and preliminary detention centres in Donetsk and Luhansk regions. The conditions of holding prisoners in the detention (nutrition, heating, water and electricity supply etc.) raise the great concerns, moreover taking into account  the damages of the energy system and other elements of infrastructure, huge financial problems of the region and obvious non-priority of the needs of such category of people. Moreover there is the danger of forcing the prisoners to participate in battle actions on the side of DNR or LNR or their execution in case of denial to do so. 

Another aspect of human rights relates to suspension of the judiciary activity in the cities and districts under the control of the separatists, namely, keeping of prisoners in detention without court order; those of them who appealed the sentence are in a state of indefinitely long waiting for examination of their cases.

Problems of internally displaced persons

According to the official information of governmental bodies to 15 October 2014 in Ukraine, the overall number of internally displaced persons (IDPs) is 413, 093 persons. From the region of ATO to the other regions were relocated 365, 541 persons, including 113, 274 children, 73, 431 persons with disabilities and elderly people (including those temporarily displaced within the Donetsk region – 58, 047 people). Total number of IDPs is 384, 281 including 118, 544 children, 74 757 people with disabilities and old people. At the same time, UN claims, that real number of IDPs in Ukraine may reach 900, 000.

 Among key problems, which IDPs face: renewal and obtaining documents; employment, housing, social security issues, health care, social and psychological rehabilitation.

On 20 October 2014 was adopted the Law "On protection of the rights and freedoms of internally displaced persons", the draft of which was developed including with the participation  of representatives of the UN Refugee Agency,   OSCE and NGOs. The Law sets legal basis for elaborating special integral governmental programs, establishing and maintaining the unified register and the database of IDPs, providing them with information on housing and job opportunities, functioning of the governmental guarantee system of social and pension provision. Also the Law touches the issues of financial costs, related to the temporary placement of IDPs’ families into the governmental and municipal facilities, with opportunities of the fastest involvement of sources of international organizations, international technical support for accommodating places for long-term housing of IDPs and basics for building appropriate housing infrastructure for them.

The rights of ATO participants

Because of participation in ATO, very big amount combatants of Armed Forces of Ukraine, National Guard, volunteer battalions of territorial defense, have specific problems.

Typical problem of this group is to get the status of participant of battles, without this status soldiers and their relatives cannot get relevant social help and use the privileges from the state.

For those who fought in the volunteer battalions, this problem is particularly difficult because the state of martial law has not been enacted in whole Ukraine or in some its territories , and the task of obtaining the certificate on the participation in the battles or presence in the combat zone is very challenging.

Another problem, which the soldiers face with, is the refusal to grant them leave from the service and lack of rotation. In some cases this situation is mixing with prosecution or the soldiers for having deserted from the military service, including at the time of the battles, even though in many cases these actions of the soldiers were caused by their command’s behaviour that had left the soldiers without any provision and support, to the mercy of fate in the helpless state of inevitable death and accordingly in the position of the imminent necessity to save their lives. 

The specific morbid issue for the combatants is to prove that the injuries have been received during participation in the ATO, which gives the right to get the compensation, free prosthesis. There are a lot of cases when military command and military hospitals make direct falsification of documents with a purpose to conceal the fact of  having received of the wound at the time of a battle. In such cases, it is written to the medical in-patient card and to the accident report, that the injuries were caused as a result of careless handling of weapons or during the training, or the accident is recorded as a general everyday trauma instead of as the wound injury.

The most negative practice is the hiding facts about the deaths of the soldiers from their relatives in the cases when the command of the military unit knows certainly about the fact of the death, but the person is officially considered as missing one. Of course, it makes better the statistic of deaths and postpones governmental spending on compensation to the families of deceased soldiers.

Participation of Russian troops in armed conflict

Russian high officials repeatedly have denied any involvement of Russian military forces soldiers  in the fighting on the territory of Ukraine, but satellite images and personal  statements indicate unequivocal evidence that the operations on the East of Ukraine have escalated  to the international armed conflict: “These satellite images, facts of detention of Russian military units on the territory of Ukraine and eye-witnesses testimony of moving Russian armed units and military techniques through the boarder don’t leave any doubts that it is already international conflict nowadays”[4]