Assessing the developments in the ATO area from a Human Rights perspective
Introduction to the history of the armed conflict in Donbas
Barely two weeks passed after the mass shooting of unarmed protesters of Euromaidan in the very centre of Kyiv and escape of members of the authoritarian regime, when Ukraine faced new challenges. Russian Federation started occupation of Crimea with the help of its army, which it attempted to legalize on March 15, 2014 by holding pseudo-referendum “at gun point.” Taking advantage of temporary disorganization of public institutions, the Russian Federation annexed a part of Ukrainian territory.
It was planned to repeat a similar scenario in eastern and southern Ukraine, where in March-April 2014 different armed groups were created actively under support of the Russian Federation. The basis of such formations was paramilitary criminal gangs called “titushky” that were used by the previous regime to suppress peaceful protests. With the help of local authorities, they violently dispersed rallies being held by people in favour of Ukraine’s unity, beat participants of peaceful campaigns, regardless of their age and sex, with batons and reinforcing wires, threw stun grenades, smoke bombs, used tear gas and cold guns. As a result of one of these attacks during the peaceful campaign on March 13, 2014, a 22-year-old student Dmytro Cherniavskyi died from stab wounds. At that time, the main symbols of “Anti-maidan” rallies artificially organized by the authorities except “George ribbons” were the flags of Russian Federation.
Initially, relatively small in numbers, these groups received significant personnel, military, technical and financial assistance from Russia and with the assistance of local elites of the former authoritarian regime, they began building up a system of total terror and violence against civilians in order to establish control over the region. It is important to note that some organized militias led by citizens of the Russian Federation, in particular, Ihor Hirkin (aka “Strelkov”), Ihor Bezlier (aka “Bies”) and others. Usual tactics was the seizure of administrative buildings, beatings, enforced disappearances, tortures, extrajudicial killings, forced alienation of private property, looting of banks and commercial companies and more. The first wave of evacuation from the region was launched, with the majority of people being the representatives of civil society — human rights activists, community leaders, journalists, local MPs, leaders of student youth and others.
It is important to note that pro-separatist sentiments in the Crimea and in the East were largely formed via the system of Russian propaganda, which described participants of Euromaidan as “Nazi” and intimidated residents of the region with “bloody junta” that would “exterminate the Russian-speaking population.” The activities of the Russian media were in fact an integral part of military operations.
The “Crimean scenario” was disrupted due to the involvement of security and the armed forces, which resulted in the beginning of de jure the “anti-terrorist operation” and de facto — “undeclared war” with Russia, as after the real threat of complete destruction of illegal armed groups in the Donbas, in August 2014 the Russian Federation openly introduced regular troops into the territory of Ukraine, which caused tragedies in Ilovaisk and brutal shooting of “peace corridor”, which the Ukrainian military used to withdraw its forces.
In spring and summer 2014, the Ukrainian parliament, trying to eliminate existing gaps in the legislation, adopted a number of laws and bills that clearly run contrary to the national legislation and international human rights standards. In particular, the bill No. 4310a grants police officers the right to use physical force without warning, special means and weapons in the area of ATO implementation; bill No. 4312a provides for “preventive” detention up to 30 days of persons involved in terrorist activities without any court decision; bill No. 4311a allows the prosecutor to authorize independently, without a court ruling, the arrest of a person for up to 3 days, as well as to search, have access to goods and documents, etc. and bill No. 4453a “On sanctions” that restricts the activities of media and other information entities. In accordance with the explanatory notes to the regulatory acts, the authors justify the adoption of such laws by the necessity to ensure effective performance of tasks by the public authorities for “neutralizing terrorists during the ATO implementation.”
However, in defiance of the decision of the National Security and Defence Council dated November 4, 2014 which was approved by the Decree of the President of Ukraine dated November 14, 2014 the Government did not sent a statement on behalf of Ukraine to the Secretary General of the Council of Europe regarding undertaking by Ukraine of measures in certain territories in the area of anti-terrorist operation in Donetsk and Luhansk regions in view of a public danger threatening the life of the nation that derogate from Ukraine’s obligations under the European Convention on Human Rights. Such an appeal would have provided the state with legitimate grounds for restricting human rights and freedoms in the territory of ATO to the extent required by the exigencies of the situation.
In order to stop the armed conflict, the OSCE has initiated negotiations. Tripartite Liaison Group was established consisting of the representatives of Ukraine, the Russian Federation and the OSCE. Following the consultations the group representatives signed the Protocol on joint actions dated September 5, 2014. The important provision of the Protocol was the assurance of immediate discontinuation to using weapons by the conflict parties. However, organized armed groups, called Luhansk and Donetsk People’s Republics repeatedly violated the terms of the Protocol. Immediately after the publication of the text of the document, their “officials” declared that they were not the signatories to the document. According to official information of the Assistant Secretary-General for Human Rights, at least 9 people were killed during the so-called “cease-fire”.
On-going full-scale military operations in the Donbas, repression of civil society, terror and violence against civilians led to mass evacuations. According to the data published by Assistant Secretary General for Human Rights as of mid-December 2014, over 1.1 million people have left the Donbas area, 54,280 of which remained in Ukraine, 567,956 people crossed the borders of other countries, including the Russian Federation, 240,095 of which have applied for refugee status.
As of the beginning of 2015, the number of people killed during the armed conflict in the East of Ukraine exceeded 5 thousand people, based on the official data only.
Nature of the armed conflict in the Donbas
The Russian Federation continues to deny its involvement in the armed conflict, referring to “civil war” and “war of Kyiv against its own people” that is raging in Ukraine. To explain the presence of the Russian regular army in eastern Ukraine, there is used quite a muddled justification: “the mentioned military did participate in the patrolling of the part of the Russian-Ukrainian border, crossed it, probably accidentally, in the area without the appropriate markings and infrastructure”. This occurs despite the fact that Russian soldiers have actually been detained in the territory of the Donbas in a combat zone about 15 kilometres deep from the border.
Justifying its presence in the Donbas with the help of illegal “humanitarian intervention”, the Russian Federation under the guise of “humanitarian convoys” and in violation of the procedures of the International Committee of the Red Cross, has been transporting military equipment and ammunition. A common practice was transportation through the Russian-Ukrainian border of military equipment that is referred to as the equipment without marking and license plates in the report of the Special Monitoring Mission of the OSCE. Additionally, Ukrainian positions on the border are regularly shelled from the Russian territory by using multiple rocket launcher system “Grad”, the facts that were proved on numerous videos made by residents of the Russian village Hukovo.
Thus, the present armed conflict is of international nature, which, according to Reuters, was recognized not in public by the International Committee of the Red Cross. However, the efforts of Russian diplomacy at the international level and aggressive Russian propaganda in different countries are aiming to present the developments in Ukraine as an internal international conflict through the use of local agents, the so-called Luhansk and Donetsk People’s Republics.
Firstly, it should be noted that the Luhansk and Donetsk People’s Republics are rather artificial conglomerates of various organized armed groups that often fight with each other for the sphere of influence.
Secondly, these armed groups are organized terrorists organizations because they have chosen violence and terror against civilians for establishing control over the region as the primary method of warfare.
Thirdly, the organized armed groups are so-called asteroid groups, local agents of the Russian Federation, as their existence is possible owning to the power of this state — financial, political, technological, military aid, etc. — and they are not independent in making decisions. Their position in the international arena is represented by the Russian Federation, which is also a member of the Minsk talks. At the same time, Russia is eliminating the leaders of those organized armed groups that go beyond its control.
Fourth, contrary to the image of “militias, fighting with fascists junta” that was disseminated by the Russian propaganda, it should be noted that national and radical neo-Nazi organizations of the Russian Federation are actively engaged on the side of organized armed groups, including hundreds of militants of the Black Hundreds, Russian National Unity (including leadership of the neo-Nazi organization), the Eurasian Youth Union, “Another Russia”, supporters of anti-Semitic neo-heathen Conceptual party “Unity” (The concept of public security “Dead Water”) and so on.
Taking into account mentioned above, it can be argued that the Russian Federation has effectively been controlling the areas in the DNR and LNR in the Donbas and is responsible for all violations of human rights and international humanitarian law in these areas.
In its resolution, the European Parliament on January 15, 2015 found that the so-called DNR/LNR have applied terrorist methods of operations, and stated that Russia has been raging an undeclared war in the territory of Ukraine. Thus, in Clause 5 it is stated that Russia is raging “an undeclared hybrid war against Ukraine, which includes information war with elements of cyber-warfare, the use of regular and irregular forces, propaganda, energy blackmail, economic pressure, diplomatic and political destabilization”; separately, it is emphasized that these actions are in violation of international law and pose a serious challenge to the security situation in Europe.
Describing the situation in the ATO from the perspective of human rights
and international humanitarian law
Organized armed groups have introduced in areas under their control a system-based and large-scale terror against civilians in order to establish control over the region. Beating, abduction, hostage taking, torture, extrajudicial killings, forced alienation of private property and other have become a common practice. They started a systematic persecution of explicit or alleged supporters of Ukraine’s state sovereignty based on different motives — political views, religious beliefs, language, belonging to the civil service in case of failure to side with combatants. Consistency and magnitude of these acts indicate the existence of a deliberate terror policy, planning and organization of violence.
Organized armed groups deliberately violate the rules of international humanitarian law. Intentional policy aimed at committing massive war crimes of different forms, has been confirmed by its organized manner, frequency and inability to commit such crimes by accident. It is also evidenced by exemplary demonstrative commitment of some war crimes, defiance of any “laws of war”, such as: a parade of prisoners in Donetsk, the order not to take Ukrainian military prisoners in captivity, mining of transport vehicles owned by civilians to make explosions at Ukrainian checkpoints, etc.
Human rights organizations, including monitoring visits of UHHRU, have constantly documented cases of using civilians as human shields, mining civilian objects, shelling at peace corridors, transforming civilians into military targets, deliberate attacks on civilian objects, murder and torture of Ukrainian servicemen and so on.
Security Service of Ukraine has published a map of international crimes, which enables to learn, in particular, about the system of functioning detention centres of Ukrainian hostages (information is confirmed by testimonies of local residents, the results of interrogations of detained militants and satellite images).
It should be emphasized that in the territories that are controlled by the organized militias, there is no legal protection whatsoever. They do not apply domestic law of Ukraine, nor international law. Members of organized armed groups are guided usually by oral commands of their leadership and have broad discretion to make independent decisions regarding property, health and life of civilians. There are no human rights institutions there. The so-called “ombudsmen” of the DNR or LNR are engaged in an exchange of prisoners of war. “People’s courts” and death penalties are taking place in the “republics”.
An important issue is the violations of human rights and international humanitarian law by the Ukrainian units fighting in the ATO area. For example, Amnesty International has documented cases of mass abuses by individual soldiers of volunteer battalions, including kidnapping, illegal detention, abuse, theft, extortion. Human Rights Watch accuses the Ukrainian government forces of violation of international humanitarian law, including the use of cluster munitions. All these facts in each case require effective investigation and confirmation of their commitment — those responsible must be brought to justice. It should be noted that when demonstrating additional efforts, the relevant government agencies agree to open criminal proceedings. The result of one of these proceedings was disbanding of patrol police battalion “Shakhtarsk” due to prevalence among soldiers of the battalion of looting practices. At the same time, based on a number of criteria, it is hardly possible to conclude that such investigations are effective.
Although the number of violations committed by the Ukrainian military forces is much lower than the number of offenses committed by organized militias of the DNR/ LNR, this trend is quite alarming. Human rights are not measured in percentage and require absolute protection regardless of the individual offender. The persistence of such crimes in the territories controlled by Ukrainian government forces evidences the failure of the government to solve systemic problems that facilitate their commitment, and stop this shameful practice.
Taking into account the subject of this report, the author will focus on those violations covered by international standards of human rights and international humanitarian law, in particular, on gross violations committed within an organized system of terror against civilians who are explicit or alleged supporters of state sovereignty.
Creation of system of violence and terror against civilians
Organized armed groups declared as “enemies of the people” and began persecuting a wide range of civilians who are explicit or alleged supporters of Ukraine’s sovereignty. The victims of these actions were primarily representatives of civil society — human rights activists, journalists, members of peaceful campaigns for Ukraine’s unity, community members, volunteers, priests, local MPs, civil servants and others. Civilians may be automatically identified as supporters of state sovereignty on the following grounds:
— political beliefs: human rights activists, journalists, community leaders, members of the opposition parties standing against the former authoritarian regime, etc.
— religious beliefs: the priests and parishioners of various faiths different from the Ukrainian Orthodox Church of Moscow Patriarchate;
— language: people who speak Ukrainian;
— positions held: officials, law enforcement officers, local MPs in case of their refusal to obey the authority of the DNR/LNR.
One of the first victims of persecution was a deputy Volodymyr Rybak from the city Horlovka, who was kidnapped by unknown on April 17, 2014 after attempts to put back the national flag on the building of the regional administration (the abduction recorded on video). The bodies of Volodymyr Rybak and 19-year old student Yuriy Popravko revealing sings of cruel torture were found on April 21 in the inflow of Northern Donets River near the town of Sloviansk. The official cause of death: combined body injury as a result of torture, followed by sinking of the victims who were unconscious but still alive. Security Service of Ukraine released phone records, according to which the murder of Volodymyr Rybak was committed with the involvement of a group of so-called “Strelok” that is active in the Donetsk region, and a citizen of the Russian Federation, Colonel of Main Intelligence Directorate Ihor Bezlier. According to these records, on April 17, 2014 Bezlier (aka “Bies”) issued a command to the self-proclaimed police chief of Horlovka city regarding neutralization of Rybak. At the same time, Bezlier gave instructions to a member of his group, the Russian serviceman, to kidnap Volodymyr Rybak, put him in the car and deliver to the appointed place, where measures of physical restraint were applied to him.
People held in captive undergo severe torture, beating, cutting of body parts, ignition, electrical current etc. The case of 52-year-old resident of Yasynuvata Iryna Dovhan has got a considerable publicity abroad due to the fact that the photo of Iryna near pillory in Donetsk was published by New York Times. She was kidnapped from the yard near her own house by the militants of “Vostok” battalion. Iryna told the scenes of her detention, which were not fixed by the camera:
“I was beaten, mocked, they shot near my ears with a gun and threatened to rape me sadistically, telling how it will happen... He asked me to come to the ward bars, opened the grate and insisted that I stood still, he ran and hit me in the chest with his foot. I flew to the wall and in ten minutes could not breathe properly. It was their entertainment... Especially scary was when they brought a man by a phone call. I have not seen him, but he was beaten, and he cried. I cried, crawling on the floor and praying that I was just shot.”
In general, any person who is actively involved in carrying out the activities that are not controlled by the armed organized groups such as social volunteering may become a victim of persecution. The policy of the organized militias aims at suppressing any form of public activity beyond their control. Therefore, the victims of violent kidnapping and hostage taking were the volunteers who helped civilians in the Donbas.
For example, on September 29, the director Vasyl Kovalenko was kidnapped from the pension “Biriusa” near the village Bezimene of Novoazovsky region. Armed men with DNR symbolic in the SUV “offered” the director “a ride with them” in his own car, accompanied by their vehicle. On October 1, 2014 Vasyl Kovalenko’s private car was spotted to be used without license plate by the organized armed groups. It is worth noting that in last months the director of the pension voluntarily provided shelter for the displaced people from the area where the anti-terrorist operation was implemented. The pension could accommodate more than 250 people. A similar motive for abduction has been determined in the case of human rights activist, a lawyer Oleksandr Kudinov who independently evacuated hundreds of people from the ATO area and negotiated for the release of civilian hostages regardless of their political views.
To deal with the “enemies of people”, the organized armed groups used the practice of “execution lists” during examinations at the checkpoints. In July 2014, they sent letters to Ukrainian journalists with a warning that they are the enemies of “Russian World” and “write lies about the Donbas according to the dictation of decadent West.” There was published a preliminary list of 15 journalists who were said to be discovered and killed whatever place they were. Overall, more than a few dozens of journalists were taken hostage during 2014. Some of them were offered to shoot scenes for the propaganda of Russian TV channels in exchange for their release.
In this way, in the territories under control of the organized armed groups a system of mass kidnappings and tortures of civilians was set up. Thus, in May 2014, ”, the director of Human Rights Watch Europe and Central Asia, said: “militia with the help of beating and kidnapping make it clear to everyone that those who do not support them should keep silent or go away. These formations commit arbitrary actions being under no control.
Later self-proclaimed Luhansk and Donetsk People’s Republics established special units according to the Soviet example, bearing the same name — the NKVD and SMERSH. The employees of these units have been preparing “executions lists”, kidnapping activists and their families, torturing and shooting people.
In extremely difficult situation in the areas controlled by the organized militias are vulnerable groups, including ethnic minorities, religious communities, representatives of LGBT community, HIV-positive people and prisoners. The prisoners of the colony No. 52 in Yenakiievo reported that after escape of six prisoners, they were not given bread any more. About two weeks earlier, the AIDS prisoner died in the health centre because he could not get treatment.
1. A hybrid war is raging in Ukraine. It was launched by the Russian Federation that is using for this purpose its local agents, illegal armed groups and regular Russian army. The continuing armed conflict is an international one, despite being always described by the Russian propaganda as the internal conflict.
2. Organized armed groups that form the so-called Luhansk and Donetsk People’s Republics apply terror against civilians as the primary method of warfare. With this regard, common practices in the territories under their control are assault, enforced disappearance, torture, extrajudicial killings and forced alienation of private property owned by civilians.
3. The organized armed forces systematically and consciously and with undisguised disdain violate the norms of international humanitarian law: using the civilian population as a living shield, laying mines in civilian objects, shelling the peace corridors, transforming civilians into military targets, intentionally attacking civilian objects, murdering and torturing Ukrainian POWs, etc.
4. There were recorded cases of human rights and international humanitarian law violations by the Ukrainian government forces in the territories liberated from the militants. When exerting additional efforts, investigations are launched with regard to such crimes, while in most cases they can hardly be described as effective.
1. The Verkhovna Rada of Ukraine should urgently adopt a resolution No. 1312 dated 09.12.2014 “On recognition by Ukraine of jurisdiction of the International Criminal Court on the situation that has developed as a result of the on-going armed aggression starting from February 27, 2014 of the Russian Federation against Ukraine and the commitment of international crimes in the territory of Ukraine.” To clarify clause 1 of this resolution and to provide for the validity of the appeal from February 23, 2014 until the immediate ratification of the Rome Statute by Ukraine.
2. The Verkhovna Rada of Ukraine should adopt a bill No.1788 dated 16.01.2015 that provides for supplementing the Article 124 of the Constitution of Ukraine with the following provisions: “Ukraine may recognize the jurisdiction of the International Criminal Court under the terms of the Rome Statute of the International Criminal Court.”
3. Security Service of Ukraine together with the Ministry of Defence, General Prosecutor’s Office, Military Prosecutor’s Office, Ministry of Internal Affairs, Ministry of Justice, Ministry of Foreign Affairs should establish a coordination group to organize the collection and recording of evidence of committing crimes against humanity and war crimes, and coordinate such activities for preparation of materials for submittal to the International Criminal Court on commitment in Ukraine of crimes against humanity and war crimes by the organized armed groups controlled by the Russian Federation.
4. The Ministry of Justice in cooperation with the Ministry of Foreign Affairs should immediately send a statement on behalf of Ukraine to the Secretary General of the Council of Europe on undertaking by Ukraine of measures in certain territories in the area of anti-terrorist operation implementation in Donetsk and Luhansk regions due to the public danger threatening the life of the nation that derogate from Ukraine’s commitments under the European Convention on Human Rights.
5. The Ministry of Justice in cooperation with the Ministry of Foreign Affairs should develop a plan of measures to protect the interests of the state and its citizens at international level with involvement of the Security Service of Ukraine, Ministry of Defence, the General Prosecutor’s Office, Military Prosecutor’s Office, Ministry of Internal Affairs, National Security and Defence Council, the Presidential Administration, members of parliament, scientific community and civil representatives, in particular, to recognize the DNR and LNR as terrorist organizations at the international level, prepare a lawsuit against Russia in the International Court of Justice, relevant cases in the European Court of Human Rights, etc.
6. The Cabinet of Ministers should create a coordination group of representatives of the Security Service of Ukraine, Ministry of Defence, the General Prosecutor’s Office, Military Prosecutor’s Office, Ministry of Internal Affairs, National Security and Defence Council, the Presidential Administration, the Secretariat of the Ombudsman, that will be tasked with carrying out control over compliance with the laws in the area of ATO implementation and responding to reports of illegal actions by state representatives.
 This Section has been prepared by O. Matviychuk, the Chairman of the NGO “Center for civil liberties”.
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