‘Answer to Ariev’. What do we need to know about PACE Resolution on Donbass NGCA
It is so easy to single some information out and provide it outside the context… However, every document needs to be read carefully and interpreted as a whole.
On 24 April, the Parliamentary Assembly of the Council of Europe adopted Resolution 2209(2018) that concerns the issue of proportionality at the time of derogation from obligations under the European Convention of Human Rights and Fundamental Freedoms. It is called State of emergency: proportionality issues concerning derogations under Article 15 of the European Convention on Human Rights. Way before the final text was adopted, some members of Parliament informed that “territories of some parts of Donetsk and Luhansk regions were acknowledged occupied and the PACE acknowledged Russia to be an occupying power!” Later on they corrected themselves that the Resolution “recognized Russia’s effective control”. Undoubtedly, it is important that the document adopted by an international organization, contains recognition of certain level of responsibility of the Russian Federation. However, this does not lift obligations from Ukraine. Moreover, the document focused on the need for the derogating state to ensure proportionality (to the extent necessary to ensure public order and survival of the nation) and time limits.
Facebook post of Mr. Volodymyr Ariev contained some details, two of which required clarifications:
«1) All the responsibility for crimes perpetrated at the not controlled parts of the territory is lifted from Ukraine. On the contrary, the Russian Federation becomes responsible”. – This is not so, since every crime has a perpetrator. In the course of the armed conflict responsibility for serious violations of international humanitarian law lies in three dimensions: individual responsibility, responsibility of a commander (a person who order certain actions) and responsibility of the state. Therefore, if a war crime, crime against humanity or even a general crime at the territory “effectively controlled by the Russian Federation” was perpetrated by Ukrainian military personnel, he/she would be held responsible for that. It is an obligation of Ukraine to bring such an individual to justice. It is common sense. It is so under the Criminal Code of Ukraine. It is so under the International Criminal Law and… it is in the interest of Ukraine: it is doubtful that Ukraine would wish her soldiers to be judged in Russia or even in the Hague.
«3) Ukraine was quite often blamed for improper humanitarian or social coverage at the NGCA, but now this is Russian problem. So, everything has been called by its name. Everything that takes place at some parts of Donetsk and Luhansk regions is under the responsibility of the Russian Federation”
Resolution contains no provisions that would allow for such a conclusion. Moreover, the Resolution concerns three countries and none of them is Russia. The text calls for the proportionality in implementation of any derogations with regard to human rights obligations. Let us remind you that in 2015 Ukraine derogated from some of its obligations, in particular Article 5 (restriction of freedom), Article 6 (access to justice), Article 8 (respect to private life) and Article 13 (right to effective remedies). Derogations said nothing of, for example, Article 1 of Additional Protocol 1, which concerns property rights (and the right to pension is covered, since pension is concerned to be private property). Additionally, Law 2268 (so called “reintegration law”) reconfirms position obligations of Ukraine towards ensuring social, economic, cultural and ecological needs of residents of NGCA.
Positive obligations mean that a state has to do everything possible to ensure access to rights at the controlled territory (facilitating access; placing centers for provision of administrative services as close to the line of contact as possible; minimizing administrative barriers etc.)
As to the “effective control” in the framework of an armed conflict, these words in international law have a different meaning from that used by Ukrainian MPs. And there are no doubts that PACE used the language of international law. “Effective control” has at least two meanings. First, in it is used in the law of international responsibility. It is necessary in order to establish that actions of certain groups can be attributed to a certain state. “Effective control test” is conducted in order identify if actions of armed groups or self-proclaimed may be attributed to a state… And such attributions shall be related to actions that resulted in breach of international law. For example, effective control shall be sought to prove Russia’s responsibility for Malaysia Boeing (2014).
Secondly, effective control is used in human rights law, predominantly in Europe in the practice of the European Court of Human Rights. It is important that when placing responsibility for human rights breaches at the state that exercises effective control, the Court does not lift the responsibility from the state at the territory of which such a breach took place. The European Court then speaks about positive obligations.
The last, but not least: existence of the occupation of lost control over some parts of its territory does not mean that the state shall not observe its human rights related obligations. Obligations of the occupying power concern the law of military occupation, not human rights law. Human rights obligations of the state who lost control over parts of its territory do not disappear. State consists of four elements: territory, population, government and international relations. If Ukraine is ready to refuse its citizens residing at the NGCA, would it remain a state? Ukraine shall not doubt itself and look for easy answers. Strategic vision requires from Ukraine to carry out active care for its most vulnerable population residing at the occupied and not-controlled territories.
By the way, the Resolution contains a number of recommendations to Ukraine, including to improve material conditions at the checkpoints. For some reason this particular point fell out of MP’s attention
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