Webinar no. 2 of “Countering impunity for war crimes and crimes against humanity in Ukraine:...
21 October 2021
Analysis and main remarks regarding draft law No. 7163 “On the peculiarities of state policy on ensuring Ukraine’s state sovereignty over the temporarily occupied territories of Donetsk and Luhansk oblasts”
1. Selective general approach to the observance and fulfillment of obligations in the field of international humanitarian law.
An important goal of draft law No. 7163 is recognizing the ongoing nature of Russian aggresion in Ukraine and occupation of certain areas in eastern Ukraine. In order to demonstrate Ukraine’s clear intention to comply with international humanitarian law (IHL) as a party to an armed conflict and the requirement for Russia to do the same, the preface should contain references to all four Geneva Conventions as well as additional protocols to them. Adhering to the IHL provisions is mandatory for all parties even despite the fact that the existence of the armed conflict in Ukraine has not been officially recognized at the national level yet (i.e. state of war has not been declared). Article 2 of the Third Geneva Convention relative to the Treatment of Prisoners of War (1949) states that its provisions apply to all cases of declared war or of any other armed conflict, which may arise between two or more of the high contracting parties, even if the state of war is not recognized by one of them.
2. Lack of minimum responsibilities for the protection of civilians under dangerous conditions in accordance with international obligations.
By ratifying the Geneva Conventions and additional protocols, Ukraine accepted a number of responsibilities to protect the victims of war, which it must fulfill. This concerns civilian population located directly in the war zone as well as the protected participants of the armed conflict (prisoners of war, hostages, wounded, missing in action and persons whose freedom has been restricted). It is crucial to determine specific measures that will allow finding a balance between the geopolitical interests and positive obligations of Ukraine as a state to the people under the Geneva Conventions and protocols and European Convention on Human Rights. In light of this, we recommend the legislators to create safe conditions that would allow civilians to cross the contact line without endangering their lives, and to consider the risks in regards to the conflict’s escalation in non-government controlled territories in order to protect civilian population (by providing medical care, expediting evacuation of children and senior citizens and creating favorable conditions for evacuations). Every armed conflict poses a threat to civilian population, and Ukraine is obligated to take all necessary measures for their protection. This extends to natural human rights (right to life, physical security, dignity and respect, etc.) as well as social rights (right to medical care, social guarantees, etc.). Aside from that, because of the large number of the victims of the conflict in eastern Ukraine, we consider it extremely important to include in the draft law’s text a reference to “Main principles and provisions on the right to legal protection and compensation of damages for the victims of severe violations of international norms in the field of human rights and IHL”.
3. Lack of general rules for the protection of ‘the protected persons’ in accordance with the Geneva Conventions.
In accordance with Article 4 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, the following persons are protected by the Convention: those who at a given moment and in any manner whatsoever find themselves, in case of a conflict or occupation, under control of a Party to the conflict or Occupying Power, of which they are not nationals. Adopting draft law No. 7163, Ukraine must determine at the national level the legal status of protected persons (e.g. prisoners of war, hostages, missing in action and persons whose freedom has been restricted), and establish the mechanisms for their protection in accordance with the Geneva Conventions. In light of this, we suggest including into the draft law No. 7163 a blanket norm on protecting this category of the conflict’s victims: recording, establishing mechanisms for securing their release, verification and data collection.
4. Absence of a clear procedure for defining the conflict in eastern Ukraine.
The draft law lacks a clear procedure for defining the conflict in Ukraine’s east and does not take into account the norms of international law. In accordance with Article 34 of the UN Charter, the UN Security Council has the power to investigate any conflict or situation that could lead to international crises or disputes, in order to determine whether the protraction of the conflict or situation threatens global peace and security. In accordance with the Charter, the International Committee of the Red Cross (ICRC) is being a neutral institution, one of whose tasks is recognizing new or reorganized national communities. In this regard, ICRC monitors the observance of IHL norms during armed conflicts and, similarly to the International Criminal Court (ICC), is among the institutions authorized to classify conflicts. In order to comply with international legal standards during conflict classification, it is advisable to consider at the national level the preliminary decision of the ICC Prosecutor to classify the conflict in eastern Ukraine as non-international and international simultaneously.
We also advise against mixing the concepts of “effective control” and “general control” as proposed in the Article 1 of draft law No. 7163. These are different concepts that are derived from the practice of different international judicial bodies, while both having to do with the determination of one state’s control over a part of another state’s territory. The concept of “effective control” is used by the European Court of Human Rights (e.g. in the case Ilaşcu and Others v. Moldova and Russia, Mozer v. Moldova and Russia). As for the “general control” concept, it originates from the decision of the International Court of Justice (ICJ) in the case on military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America, 1986) and has a somewhat lower standard of proof. Considering the fact that Ukraine filed five intergovernmental complaints against Russia with the European Court of Human Rights (ECtHR) with proof of Russia’s “effective control” over certain areas of Donetsk and Luhansk oblasts, in our opinion, it is advisable to use the concept of “effective control”. During further examination of draft law No. 7163, it is also worth taking into account the separate viewpoints of the bodies of the Council of Europe and the United Nations, as well as the 2016 report of the ICC Prosecutor’s Office.
5. Inappropriate inclusion of certain norms that do not relate to the conflict resolution.
The issues of restitution and compensation for violations committed by the aggressor state go beyond national judicial jurisdiction and in many aspects fall within the purview of the ICJ, ICC and ECtHR, depending on the nature of violations and international legal regulation. The norm on exemption from court fees in national judicial bodies when seeking recognition of Russia’s violations and compensation of damages would only serve to strengthen the existing flawed legal practice at the national level. The powers of national judicial institutions are determined by the Law of Ukraine “On the judicial system and the status of judges”, Civil Procedure Code of Ukraine, Criminal Procedure Code of Ukraine, Administrative Procedure Code of Ukraine and Economic Procedure Code of Ukraine. Therefore, in our opinion, in this situation it would be more efficient to introduce amendments regarding these norms in the relevant national legislation.
6. Inadmissibility of the procedure for recognition of the documents issued in the so-called DPR/LPR.
Administrative procedure for recognizing documents confirming the facts of birth and death, as proposed in Article 2 of draft law No. 7163, is currently inexpedient and premature. In our opinion, the documents issued by de-facto by the authorities of the self-proclaimed “republics” must be accepted by the national courts as evidence within the court procedure that has already been established by practical application of civil legislation. It allows verifying and examining the documents issued by the self-proclaimed “republics” in conjunction with other evidence. This procedure does not legalize these documents, but it does allow the residents of territories beyond GOU’s control to use them as a way to verify the facts of birth and death. Implementing the administrative procedure for recognizing documents issued in these territories of Donetsk and Luhansk oblasts would be a sensible move for occupied Crimea, but here it is premature due to the following (1) lack of a functional system of human rights protection, (2) low number of actually working governmental bodies (i.e. low level of their institutionalization), (3) active military hostilities in the region; (4) lack of appropriate qualifications by the relevant institutions (see § 4). Finally, the actions of quasi-governmental bodies of the “republics” and their armed units are highly unpredictible. All documents issued by such bodies are also untrustworthy due to the low level of their protection and credibility. We believe that such an approach to documents’ examination will not contravene the practice of the ECtHR and ICJ. It is clear that the documents issued by the “governing bodies” of the self-proclaimed republics must be considered in order to protect human rights, particularly when verifying the facts of birth and death. At the same time, the government has the right to choose and implement a mechanism for recognizing, verifying and approving such documents.
7. Existence of legal conflicts between this draft law and related legislation concerning occupied Crimea.
On 15 April, 2014, the Parliament of Ukraine already adopted the Law of Ukraine No. 1207-VII “On upholding the rights and freedoms of citizens and the legal regime in temporarily occupied territories of Ukraine”. This law defines the legal status of Crimea (land area, inland sea waters and territorial waters of Ukraine, and airspace over these areas) as temporarily occupied as a result of armed Russia’s aggression, establishes a special legal regime for this territory, defines the activities of state and local self-government bodies, institutions and organizations, observance and protection of human rights and freedoms of the population, as well as the rights and legitimate interests of legal persons. At the same time, the purpose of draft law No. 7163 is to restore Ukraine’s sovereignty over the territories of Donetsk and Luhansk oblasts, which obviously requires a full-scale separate regulation of the legal regime of these territories, which, in our opinion, has not been properly laid out in the draft law in relation to the requirements of international law and the protection of rights and interest of the population of these territories. In addition, draft law No. 7163 makes use of provisions of the Law No. 1207-VII, while the Law 1207-VII itself remains unchanged. Moreover, the Law No. 1207-VII determines the legal regime of the occupied peninsula of Crimea and is not related to the legal regime in the conflict zone in eastern Ukraine. Therefore, it is necessary to resolve the legal conflicts and adjust the draft law in accordance with the current legislation on temporarily occupied territories.
 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (І); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (ІІ); Geneva Convention relative to the Treatment of Prisoners of War (ІІІ); Geneva Convention relative to the Protection of Civilian Persons in Time of War (ІV).
 In this regard, we suggest phrasing par. 2, Art. 5 of draft law No. 7163 as follows: “take all necessary measures in accordance with the norms of IHL to protect human rights and fundamental freedoms of citizens in temporarily occupied territories of Donetsk and Luhansk oblasts. Protection of persons taking no active part in the hostilities (including members of armed forces who have laid down their arms and those persons placed hors de combat as a result of sickness, wounds, detention or any other cause), is granted in accordance with the Third and Fourth Geneva Conventions and additional protocols”.
 §169 https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf; instead of the term “temporarily occupied territories” we suggest using the term “certain territories of Donetsk and Luhansk oblasts beyond the Government of Ukraine’s control as a result of armed aggression of the Russian Federation”
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