Publication

Conditions of armed conflict & human rights. Rights of military personnel

Chapter was prepared by K. Haidei, lawyer of NGO “DESIATE KVITNIA”, and Ye. Hryhorenko, Associate Professor of the Department of State Legal Disciplines of Law Faculty at Vasyl Karazin Kharkiv National University.

 

An important event for Ukraine was its accession to the International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED), which imposes obligations on the state to take steps to determine enforced disappearances as crimes under national law and to define a widespread or systematic practice of enforced disappearances as a crime against humanity.

An official starting date determination of a temporary occupation of a partial territory of Ukraine on February 20, 2014, as reflected in several laws, has become a legislative novation.

A number of legislative initiatives strengthened the social protection of servicemen and their families in terms of taxation, insurance and pension, length of service calculation, housing, access to education, as well as medical and psychological rehabilitation.

Subject to International Humanitarian Law provisions, the Parliament adopted the Law of Ukraine “On amendments to some legislative acts of Ukraine concerning military service in the Armed Forces of Ukraine by foreigners and stateless persons”, which created the necessary legal basis for the foreigners-combatants status determination, participating in armed conflict on either side.

Due to the Law adopted, the new revision included Art. 447 of the Criminal Code of Ukraine (“Mercenarism”), which strengthened the responsibility for recruitment, financing, procurement and training of mercenaries, and provided a detailed definition of “mercenary” subject to provisions of the UN International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989).

Assessing the real possibilities of the state and complexity of the legal status of the non-government controlled areas, Verkhovna Rada of Ukraine adopted the Resolution dated May 21, 2015 on approving the Statement of Verkhovna Rada of Ukraine “On Ukraine derogation from certain commitments under the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms”[1].

In response to reports about illegal intent to hold pseudo elections in some districts of Donetsk and Luhansk regions of Ukraine on October 18 and November 1, 2015, Ukraine has taken official measures – Verkhovna Rada of Ukraine adopted Resolution “On Address of Verkhovna Rada of Ukraine to partner states (democratic states) and international organizations as to intention to conduct illegal elections in some districts of Donetsk and Luhansk regions” dated October 6, 2015, setting out Ukraine’s position on the illegality of holding such pseudo elections under both Ukrainian national law and OSCE international standards, on the impact of the Russian Federation in militants-controlled territory, as well as on demands of Ukraine to restore the territorial integrity of Ukraine, including Crimea[2].

The right for freedom of movement in Ukraine dated June 4, 2015 is governed by the Resolution of the Cabinet of Ministers of Ukraine (CMU) “On Approval of the procedure for entering and exit from the temporarily occupied territory of Ukraine”[3]. According to the procedure three checkpoints for entering and exit from the temporarily occupied territory of Ukraine for road traffic control and four checkpoints for rail traffic control were established. Checkpoints work around the clock and perform border, customs and other controls, and the public tranquility is provided by law enforcement agencies in cooperation with other regulatory agencies and services. Comprehensive list of grounds for obtaining special permit and comprehensive list of conditions under which the authorized officials of the State Border Control Division can deny entering and exit from the temporarily occupied territory of Ukraine is provided.

In order to regulate the movement within ATO area, the Security Service of Ukraine announced on January 21, 2015 the introduction of “The provisional procedure to control movement of persons, vehicles and cargoes [goods] across the disengagement line within the boundaries of the Donetsk and Luhansk regions”. According to the Provisional procedure, all movements inside/outside ATO area shall be arranged via 6 government-controlled checkpoints by road transport along 6 major corridors.

The Provisional procedure also states that all persons entering/exiting ATO zone shall have both the identity document and permit. There are eight grounds for granting such a permit to individuals, but there is no ground for granting a permit to an individual for reasons of personal security of the latter. To be granted a permit an individual has to submit or sent via postal or electronic channels or file to a coordination center, coordination group, entry/exit checkpoint or first established list of documents including the application; copy of identity documents; copy of the document confirming the purpose of entering the non-controlled territory; copy of birth certificate of a child crossing the conflict line and others. When submitting documents electronically, their electronic copies shall also be submitted.

People residing within ATO area often lack electricity supply, which greatly limits their access to the Internet and therefore limits their right to submit permit documents electronically, although such innovations greatly facilitate the procedure of permit granting for most of ATO area residents.

The main disadvantages of permit regulation procedure include the absence of specific administrative or judicial procedures to appeal permit denial. The status and nature of the Provisional procedure adopted still remains unclear, as its full text has not been officially published, but only made public on the official website of the State Fiscal Service (DFS) and the Security Service of Ukraine (SBU)[4].

OSCE Special Monitoring Mission to Ukraine (SMM) issued on May 6, 2015 its thematic report “Protection of Civilians and their Freedom of Movement in the Donetsk and Luhansk Regions”[5], which listed the main disadvantages of the Provisional procedure introduction. A number of disadvantages were removed after the report publication on June 2015, but the practical obstacles and difficulties of permits granting, as well as the problems of actual entering/exiting from ATO zone are still pressing.

SMM’s observers issued on June 19, 2015 another thematic report “Freedom of movement across the administrative boundary line with Crimea”.[6] This thematic report provides an overview of difficulties of crossing the administrative boundary line (ABL) between Ukraine’s Kherson region and Crimea.

Recommendations

  1. The Government of Ukraine, considering membership in UN Security Council, shall make efforts to draw wider attention to the ongoing aggression of the Russian Federation against Ukraine, encouraging the international community to take appropriate decisions and necessary steps to stop fragrant violation of rules and principles of international law on the part of the Russian Federation.
  2. In 2016 the Ministry of Defense of Ukraine and the Prosecutor General’s Office of Ukraine shall implement measures to comply with International Humanitarian Law within ATO area and temporarily occupied territories; develop the verification mechanism for the international humanitarian law rules compliance by the military personnel of the Armed Forces of Ukraine; provide military personnel with the necessary knowledge of the content, scope and procedure for application of Fundamentals of International Humanitarian Law.
  3. In order to properly ensure the freedom of movement for all citizens of Ukraine, establish a more transparent permit granting procedure for entering and exit from the non-government controlled areas of Ukraine, thus reducing the role of subjective factor and corruption component in the procedure for appropriate permits issuing and providing a common approach to actual citizens crossing.
  4. Ensure the nationwide regular supply of necessary equipment, transport, medicines, food and clothing to ATO area while simultaneously providing social protection and psychological rehabilitation of servicemen when out of military service and back from ATO area.
  5. Bring in compliance with the law the provisions of regulations governing the calculation of pensions for persons out of military service, describing in detail the powers of state bodies, their interaction and procedure for pension recalculation, as well as establishing the responsibility of officials and public authorities in case of failure to meet such provisions.

[1] Resolution of Verkhovna Rada of Ukraine “On the Statement of the Verkhovna Rada of Ukraine “”On Ukraine derogation from certain commitments under the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms” dated May 21, 2015. – http://zakon4.rada.gov.ua/laws/show/462-19.

[2] Resolution of Verkhovna Rada of Ukraine “On Address of the Verkhovna Rada of Ukraine to partner states (democratic states) and international organizations as to intention to conduct illegal elections in some districts of Donetsk and Luhansk regions” dated October 6, 2015 – http://zakon3.rada.gov.ua/laws/show/717-19#n9.

[3]  Resolution of the Cabinet of Ministers of Ukraine (CMU) “On Approval of the procedure for entering and exit from the temporarily occupied territory of Ukraine” dated June 4, 2015. – http://zakon4.rada.gov.ua/laws/show/367-2015-%D0%BF.

[4] Updated Provisional procedure for entering and exit from the temporarily occupied territory of Ukraine for foreigners (stateless persons) dated October 20, 2015. – http://www.sbu.gov.ua/sbu/control/uk/publish/article?art_id=136476&cat_id=135945.

[5]  Thematic report “Protection of Civilians and their Freedom of Movement in the Donetsk and Luhansk Regions”, OSCE, Special Monitoring Mission to Ukraine. – May 6, 2015. – http://www.osce.org/uk/ukraine-smm/157021?download=true.

[6] Thematic report “Freedom of movement across the administrative boundary line with Crimea”, OSCE, Special Monitoring Mission to Ukraine. – June 19, 2015. – http://www.osce.org/uk/ukraine-smm/172121?download=true.

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