war crimes in Ukraine

The Tribunal for Putin (T4P) global initiative was set up in response to the all-out war launched by Russia against Ukraine in February 2022.

“PL” continues the discussion on the problems of human rights protection movement.

The dialog between Evhen Zakharov (the Kharkov Group for human rights protection) and Natalya Dulneva (the Ukrainian Association “Amnesty International”, Lviv) on some terms concerning the conception of human rights protection.
Evhen Zakharov, the Kharkiv Group for human rights protection

I want to express my opinion about the subject from which, I think, this discussion had to be begun.

Before speaking about the human rights protecting organizations, it would be reasonable to define the terms we use: what are human rights, from whom are they protected, who violates the rights.

There exists no consistent conception of human rights. This conception could be created if to accept only the liberal interpretation of human rights, that considers only the so-called rights of first generation – civil (or personal) and political. The civil rights include the right for life, the right for protection from slavery, from torture, from arbitrary arrest, detention or exile, the right for the equality in the face of the law, for justice, for privacy, for the freedom of movement, the right for refuge, the freedom of conscience and religion and the freedom of expression. The political rights include the freedom of peaceful assemlies and associations, the right for participation in government, the right to elect and be elected. These rights were formulated by John Locke, went through the bourgeois revolutions, got to the Declaration of human and citizens’ rights and to the American Bill on human rights and were included to the Universal Declaration of human rights and the International Covenant on civil and political rights almost without changes. John Locke defined these rights as natural, that is owned by all people from the very birth simply because they are people.

It should be noted that the matter concerns the rights of an individual, not of a collective, and that the state is regarded as the only violator of the rights. The conception of human rights is grounded on the three theses: 1. Any state power must be restricted; 2. Every person has own sphere of freedom on which the state may not encroach; 3. If the state violates this sphere of freedom, the person must have the opportunity to claim to court that must oblige the state to stop the violation and to recompense the damage inflicted to the claimant. Thus, human rights are the zones of freedom that must not be regulated by the state (the definition by F. Hayek). From this point of view it is more convenient to use the concept of negative rights, that is the prohibition to the state to violate the zones of freedom. As to human rights protecting organizations, their mission can be determined exactly – to guard these freedom zones from the expansion of the state and to protect people from the organized violence committed by the state. Besides, if the natural rights get the juridical status, i.e. are stipulated by laws, then the opportunity appears to protect these rights using the legal procedures. For example, the guarantees of human rights contained in the Constitution allow to realize the juridical protection of human rights in the Constitutional Court or a usual court, depending on the structure of the constitutional system. In the Ukrainian Constitution these rights are guaranteed by Articles 21-41.

The defined conception of human rights stops to be correct if to widen the notion of human rights adding the so-called rights of the second generation that appeared in the Universal declaration of human rights under the pressure of the Soviet Union and its satellites: social, economic and cultural rights. These rights include the right for social aid, for job, for equal remuneration for identical works, for rest and leisure, for adequate living standard, for education, for participation in the cultural life of the society, etc. These rights are stipulated by Articles 42-54 of the Ukrainian Constitution. The character of these rights is quite different. They are called positive since they impose on the state the positive duty to guarantee these rights. The supporters of the liberal conception of human rights assert that these rights cannot be called human rights at all – they are not universal, not common, not unalienable and, what is the main, they must be realized by the state and not by an individual. However, the state can guarantee the realization of these rights only if it obtains money from those, who earn the money, and then to redistribute these funds rightly. We observed no positive examples of such practice in the so-called countries of people’s democracy, on the contrary, we saw the opposite results.

So, the liberal conception of human rights seems more reasonable, and the activities of human rights protecting organizations must be based on it.

This does not mean that human rights protecting organizations must ignore the rights of the second generation, as far as they are fixed in our Constitution (although, in my opinion, it was a mistake and the Constitution must be changed, and the guarantees of these rights must be reformulated like in the Constitution of Poland, where such rights are guaranteed not to all citizens, but only to the social weakest ones), the International Declaration on social, economic and cultural rights (Ukraine is one of its participants) and the European social charter (Ukraine is preparing to join this charter). Yet, it is be possible to speak about the realization of these rights only if the declarative norms of the above-listed documents are supported by the normative acts, which, for example, confirm that there is normal living standard in the country. Otherwise it is incomprehensible what are the violations of these rights, these violations cannot be appealed in court, and it is impossible to fulfil Article 8 of the Ukrainian Constitution, which declares that the constitutional rights are the rights of direct action. So, in our conditions such rights are merely declarative and cannot be realized by the state. However, human rights protecting organizations have a lot of opportunities for the support of the minimal norms that can be acknowledged and guaranteed by the state, as well as for the protection from discrimination in realizing these rights, for the struggle with the violation of laws that realize these rights for a certain degree (pensions, aid to the handicapped, to the families with many children, etc.).

We must recognize that the adherents of the widening of the notion of human rights have the strong arguments. Since job is inseparable from life, the right for life and the right for job are mutually related; if the state promises to guarantee the right for job on at least the minimal level, and the individual is weak and cannot struggle for his rights, he is thrown out from the normal life. So, how it is possible to speak about the social state? Besides, there is the well-known thesis about the indivisibility of human rights. All rights of an individual that reflect the different sides of the person may not be divided, and the individual needs the entire complex of the rights. If the individual has no opportunity to work and earn money, he does not need the fundamental freedoms. Moreover, the thesis is denied that the positive rights, in contrast to the negative ones, are not connected with the prosperity level of a country: they say that many rights of the first generation, such as the right for justice or the right for the equality in the face of the law, cannot be protected in a poor country. By the way, why the rights of the first generation are called negative? For example the right for justice – is it negative? This right means the positive duty of the state to guarantee the equal access to justice and the existence of just and unbiased court. The prohibition of torture means the positive duty of the state to conduct a fast, unprejudiced and effective investigation of the complaints about torture. The prohibition to the state to violate human rights groundlessly means the positive duty of the state to protect these rights in case of a violation, that is one organ of state power must correct the errors of another state organ, which abused the rights. These arguments may not be neglected.

In the second half of the 20thcentury the conception appeared of the rights of the third generation, the rights of peoples. The right of peoples for self-determination was even included to the UNO treaties of 1966, although it should be mentioned that this right is not procedurally provided in the international right and is very dangerous from the practical viewpoint. An attempt was made to create the third treaty, which would codify these rights: for self-determination, for development, for the pure environment, etc., but it failed. However, some of these rights were included to the African Charter of human and peoples’ rights of 1981. These rights are even farther from the juridical fixing than the right of the second generation. There exists the enormous number of the theoretical questions.

Yet, it does not mean that the collective rights must be ignored. It would be correct to recognize that human rights protection is the work directed to the minimization of the organized violence committed by the state, the measures for protecting some oppressed groups.

Finally, I want to point out that all discussions about human rights, all legal constructions are senseless, if they do not promote the protection of freedoms, life, honor and dignity of people.

Natalya Dulneva, the Ukrainian Association "Amnesty International", Lviv

First of all, I want to explain the reasons of my interference in this discussion. The problems of forming the associations or other unions of human rights protecting organizations are extremely interesting, but, as a rule, our activities and our strategic plans are not connected with these problems. Nevertheless, lately we have begun to create some unions and coalitions or to join some of them for solving certain practical questions, such as struggling against torture or creating the International Criminal Court. The idea of forming the union of people "fighting on the front line", the human rights protectors, interests us more and more. Yet, we reckon that the realization of this idea requires many compromises and very delicate approach, to allow every organization to express its opinion and to influence the decisions, preserving at the same time its own specificity. Only then our human rights protection movement would become stronger and more dynamic, it would be able to develop and implement the strategy of human rights of the 21stcentury.

However, I want to appear in this discussion on the topic that excites me much more than the unions of human rights protecting organizations. During this discussion another topic appeared spontaneously: the conceptual grounds of human rights and the definition of human rights given by Evhen Zakharov. Here I want to express another opinion, since the viewpoint presented by Mr. Zakharov is unacceptable for Amnesty International. I want to stress that it is not my own opinion and not the conception of the Ukrainian Association of Amnesty International, but it is the aggregate of the fundamental values that rule the entire Amnesty International movement. It is a very important question for us.

Now let us consider the problem step by step.

We regard the concept of human dignity as the main principle of human rights. That is why we believe that all three categories of human rights stated in the Universal Declaration of human rights and other international legal documents are equally important. We cannot accept the liberal conception of human rights based on the hierarchy of the rights. From our point of view, the rights of the first generation, or civil and political rights oriented on the freedom of an individual, the rights of the second generation, or social and economic rights oriented on the safety of an individual, and the rights of the third generation, or the rights for healthy environment, culture and development (by the way, they are not only the rights of peoples’ but individual rights too), have the absolutely equivalent status. Then they would turn to the norms that can guarantee the human dignity and become the base of freedom and justice. To live with dignity a person must have the guaranteed right for freedom, safety and adequate living standards. The right for the freedom from fear and the right for the freedom from hunger are equally significant for us. And we are glad that the right for the freedom from hunger appeared in the Universal Declaration of human rights, even if this was initiated by the Soviet Union. Our conception of human rights is a reflection of the political, economic and social changes in the modern world, as well as of the influence of these factors on the world situation with human rights protection.

First of all, these changes include the phenomenon of the globalization. I mean the widening of the economy of the free market, multi-party political systems and technological innovations, which are accompanied by the growth of the welfare of some people and pauperization and despair of others. Another change that influences the image of the modern world is the phenomenon opposed to the globalization, namely defragmentation – the increase of contradictions and conflicts between countries, disorder and collapse of some states, struggle for the power between certain clans and governing elites. The consequences of the defragmentation are the growth of discrimination and the danger for human rights protectors and the workers of humanitarian institutions, as well as the change of the methods of political repressions, which, in their turn, resulted even in the shifts in the work of Amnesty International that more and more focuses its activities not only on the freedoms of speech and thought, but on the violations of human rights as a result of their identity. This means that we are forced to protect people, who suffered not because of their thoughts, but because of their personality. This is a rather difficult process demanding new approaches, new methods of analysis and struggle. The third challenge for us is the reaction to these changes of the states that found themselves between Scylla of globalization and Charybdis of defragmentation and are unable either to control the global tendentious or fulfil the demands of all social groups that live in these states. In this situation the countries often lose the control over their own territories or at least the authority. Although almost al states use the rhetoric of the liberal democracy and human rights, only several of them seriously try to embody these principles. Yet, there are tasks that must and can be fulfilled by states. The states must protect their citizens from the pressure of the transnational corporations and international financial institutions. They must protect workers from exploitation, fight against the corruption of state officials and to prevent murders of human rights protectors and journalists. Our main method in this sphere is bringing the states to responsibility both for their activity and passivity, for example, in the sphere of protecting women and children from the domestic violence, for the absence of the control over the trade of weapons and torture tools, etc.

Since the moment of the fall of the Berlin Wall the international human rights protection movement has become much more numerous and strong. At the same time, the scale of repressions, poverty and military conflicts increased, and now the majority of the humanity suffers from these misfortunes. Human rights were always important for us only from the standpoint of their significance for concrete individuals and personal tragedies of the victims of human rights abuses. The salvation of victim always was the main goal of our organization. That is why we work in three directions. The first direction is the struggle for preserving the individuality of a victim, since the victim is not a sociological or statistical item, but a human creature. The second direction is the struggle against forgiveness. The justice cannot exist, if criminals, whichever posts they occupy, remain unpunished. Finally, the third direction is the struggle for the equal rights for all people. Human rights belong to everybody, not to the most educated, popular, etc.

The social and economic inequality engenders the serious violations of economic, social, cultural, civil and political rights. We acknowledge not only Locke’s principle on the naturalness of rights. The correct treatment of human rights includes not only the acknowledgment of the universality of the rights, but also of their indivisibility.

The majority of the poor people in the entire world are deprived of the advantages of globalization. The free market does not mean the more socially conscious market. On the contrary, the increase of poverty in the very center of the flourishing world develops in people the feeling that they live on the social and economic roadside, that nobody cares about them, and this creates the grounds for indignation and violence. Many people, including Ukrainians, have the profound feeling of the social unfairness. Millions of people throughout the world are discriminated in the access to education, job and power because of their racial or ethnic origin, sex or sexual orientation. The globalization is widening increasing the welfare of the rich and driving the poor to despair, so the human rights protectors must struggle not only for the juridical, but also for the social equality. The ethical approach to the globalization means the approach to the development based on human rights. If we want human rights to be respected in the developing countries or in the crisis-ridden countries like Ukraine, we must struggle not only against torture, illegal arrests and unjust courts, but also against hunger, illiteracy and discrimination.

When we are speaking about the free and just world, we mean the world, where every person enjoy all human rights contained in the Universal declaration of human rights and other concerned international documents. The sphere of our activities widened since the problems, with which we deal, changed. In future we plan not only to protect the civil and political rights, which were the center of attraction for us during the long time, but also to struggle for guaranteeing the observance of economic, social and cultural rights.

That is why I want to state that the liberal conception of human rights is not common and is not interpreted positively by the majority of human rights protectors in the modern world. On the contrary, during last 20-30 years this conception retreated under the pressure of the conception of universality and indivisibility of human rights.

What is more, the liberal conception, which narrows the sense of human rights and insists that the state is not responsible for guaranteeing the social and economic rights, impede the observance of women rights, rights of discriminated minorities, etc. This conception resulted in the situation, when the institutions and organizations, dealing with the problems of human rights, repudiate the problems of the rights of women, refugees, minorities, etc. and do not regard as human rights protecting such organizations as trade unions or women associations.

In the conclusion I want to say that the universality and indivisibility of human rights are the absolute values for us and may not be an object of any negotiations. This is the foundation of our human rights protection standpoint – the standpoint that the safety of people is more important that the safety of state. We believe that today, in our anxious time, only such approach may give some real hope for positive changes.

Evhen Zakharov, the Kharkiv Group for human rights protection

The text written by Natalya confirms, in my opinion, the idea that there exists no stable conception of human rights. This term is not defined in laws, as well as such key terms as "people", "national minority" and many others. It is important to touch on all positions stated by Natalya, so I am going to express only several comments.

Yet, I want to content about one thesis. All the time Natalya points out that she is presenting not her own opinion and not the position of the Ukrainian Association of Amnesty International, but some fundamental values, on which the entire Amnesty International movement is based. I know personally a number of members of Amnesty International both in the former USSR and abroad. Many of them, by the way, support namely the liberal conception of human rights. So, I will risk to suppose that Natalya nevertheless expressed her own viewpoint, and I think that not all members of the movement would agree with her, since the ideas, on which she insisted, are far from being indisputable.

I want to remark that it is impossible to treat all human rights equally, at least because they have different degree of advocacy, different nature and different sense. It is difficult for me to imagine the equal treatment of such rights as, for instance, the right for the freedom from torture and the right for the regular paid leave (Articles 5 and 25 of the Universal Declaration of human rights, correspondingly). The first right belongs to all and is absolute, any reasons may justify the appliance of torture. The second right… What leave may have a writer or an artist, who work when they want and as much as they want? It is obvious that this right is not natural, unalienable and common. And may it be regarded as a human right at all? Then let us seriously discuss the right for cleaning teeth… All this has no relation with the principle of indivisibility of rights, to which, by the way, I did not object.

I believe that one may ignore the question about the hierarchy of rights and freedoms. But it is impermissible, when one or another hierarchy is regarded as the only correct and may not be discussed. In my opinion, the level of importance of the rights is individual. Some people like freedom, others like order. Somebody reckons that the most important right is the right for life, and Socrates, as it is known, did not appreciate it very much. Another example: for Pushkin, it seems, the main right was the right for privacy: he lost his consciousness when learned that his correspondence with his wife was censored. And it is known that he considered the right for honor and dignity to be much more important that the right for life…
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