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Russian invasion of Ukraine and Human rights: Three key tests




Prof Ivan Horodyskyy


Ivan Horodyskyy is professor at the Ukrainian Catholic University, and Director of Dnistrianskyi Center, As.


Ivan Horodyskyy, Ph.D. (Law), Attorney-at-Law. Director of the Stanislav Dnistrianskyi Center for Law and Politics (before 2021 – Lviv Centre for International Law and Human Rights). Ivan is an Associate Professor of the Ukrainian Catholic University School of Public Management and was Founding Director of the UCU Law School (2014-2020). With more than ten years of experience in legal practice, since April 2017 he is Managing Partner of the Dexis Partners Law Firm. Since July 2021 Ivan is a Member of the Board of the Ukrainian Bar Association. Ivan is the author and co-author of over 40 publications in law.




Introduction

The human rights lexicon includes many buzzwords. “Rights”, “freedom”, “dignity”, “international”: the very meaning of these words seems to be doing magic that makes it binding for people to comply with them and respect. However, in practice, this magic sometimes undergoes testing and shows its inefficiency. Right now – in Ukraine: in the steppes near Kherson and Mariupol in the south, in the woods around Kyiv and Chernihiv in the north, and in the residential quarters of Kharkiv and Sumy in the east, the mechanism of human rights protection is undergoing probably the hardest testing ever.


The first testing is about the general effectiveness of international human rights mechanisms, their independence, and readiness to address emerging issues. The second testing concerns Russia's disregard for human rights, denial of human rights abuses, and failure to comply with its international obligations. And the third testing is for human rights in Ukraine, which are currently undergoing a stress test during the war.


Test one

Kyrylo was a one-and-a-half-year old baby from Mariupol – the largest port city of the Azov Sea and the largest city of the Donbas region, that was still under Ukraine’s control and which is now under the Russian army’s siege. A unique series of pictures show his father Fedir bringing the baby in a blood-covered blanket to the hospital, his mother Maryna weeping bitter tears at the body of their son who could not be rescued, Maryna and Fedir sitting together, heartbroken. Kyrylo died after being wounded during one of the numerous shellfires at Mariupol on March 4.


Kyrylo’s story reflected in these pictures is a shocking story that evokes sympathy. But it seems that even hundreds of such stories are not enough for the international human rights mechanisms to start functioning. Over almost 80 years since the adoption of the Universal Declaration of Human Rights and UN establishment there have been many of them, and in the past, we often saw their efficiency and not less often could we hear some words of their just criticism. However, they have probably never been as weak as they are now.


The International Committee of the Red Cross (ICRC), the UN and OSCE remain high-profile abbreviations with awkward bureaucratic mechanisms that cannot act either proactively, or reactively. The current situation in the Russian-Ukrainian war is glaring: even the Red Cross which is supposed to be the key humanitarian actor in this conflict keeps playing some third role. The United Nations, in spite of more than 10 attempts after 2014, has failed to unblock the issue of a peace-keeping mission and now does not show any leadership or any related initiates. And the Organization for Security and Cooperation in Europe has just stopped its monitoring mission in Ukraine.


Certainly, a lot of explanations may be found: tough political circumstances, the role of Russia as a permanent member of the UN Security Council, its constant veto of any attempts to create humanitarian and peacekeeping missions in Ukraine. But should human rights protection mechanisms that have been created and exist not be capable of finding ways out of such situations and do more than they are doing right now? And, on the other hand, are there any of such mechanisms in place in general? If this test fails and no conclusions are drawn, it should be acknowledged that the global institutional and contractual human rights protection system is in need of drastic changes.


Test two

Bucha – a small town to the north-west of Kyiv, in fact, its suburbs. My friend who has been working in international human rights projects in Ukraine for many years used to affectionately call it “Bucha-City”. Recently she has published a photo on Instagram, where the apartment next to the apartment where she resided with her husband and a little daughter, was hit during the shelling. Fortunately, they had already left the building by that time.


From the point of view of the Russian government and the military, the “special operation”, as they camouflage this war, is carried out with high-precision weapons and targets only military facilities. Putin keeps stressing it on a regular basis, in his infrequent TV records, that their army is not firing at civilian facilities, while in his talks with European leaders he accuses Ukraine of arranging provocations and firing at non-military facilities.


When this war is over, the final test for establishing whether one may generally speak about respect of human rights by Russia will be the capacity of the Russian authorities not even to acknowledge, but to investigate the facts of human rights and humanitarian law violations committed by its servicemen. Missile strikes at non-military targets during attacks and sieges of cities are obvious. But there are already rumors about Russian soldiers, who are raping Ukrainian women, firing at peace rallies in cities staying under temporary occupation, murdering post office servants bringing pensions to villages, etc.


If these facts are called provocations and are not investigated, the last illusions about a possible sound dialogue about human rights with Russia or other states for which this idea is of no value should be quit. Finally, the recent cynical statements made by the Russian Minister of Foreign Affairs Lavrov claiming that one should not forget collateral damage during military actions do not leave any doubt as to further rhetoric on their part. This is not just the risk of a specific case and for a specific state –that will create the role model for all those international actors willing to avoid any responsibility for the violation of human rights norms and international humanitarian law.


In this context, it will also be worth reconsidering the efficiency of human rights protection mechanisms. Russia has already ignored the preventive measures set by the European Court of Human Rights concerning the termination of military action. There is no doubt that it will also ignore the decision of the International Court of Justice on similar preventive measures. Therefore, let’s get back to the previous issue: Are there any efficient mechanisms capable of stopping human rights violations?


Test three

Recently I got an SMS message from the State Emergency Service to my mobile phone number, and it was about a change in the curfew time in my city. Then I got another SMS message on how to behave during a shelling, how to provide first medical aid to those wounded, etc. This is a great initiative, but for the fact that I never gave consent to the use of my personal data by this Service for any purposes.


In fact, I do not complain, and I do understand: My right to privacy was restricted in the state of martial law, and it was done for the sake of my own interests. Similarly, other rights were restricted – for example, the right to freedom of movement, freedom of association, etc. It is absolutely possible that many other? restrictions are still not known to us, or that we just do not notice them. And these days, when we wake up to the sounds of air raid alarm signals, even the most ardent human rights activists do not blame the state of their usurpation.


However, as it is well-known, peace is the goal of any war, and when it is established, it will be a real test for the Ukrainian authorities to fully restore these and other human rights.

The temptation to continue having those restrictions in place because of the threat of external aggression in future will be great . And this will be a great test for the Ukrainian democracy and authorities as to how dedicated to the idea of human rights they are.


We already experienced similar challenges over the last two years in Ukraine and not only there, as the COVID-19 pandemic caused a whole range of human rights restrictions almost in all countries of the world. Ukrainians are experiencing restrictions of their rights again, under even more complicated circumstances, when the reason for restriction imposition is not just a threat to national security, but open and unprovoked aggression. Whether the authorities manage to strike the balance in this case and not yield to the temptation to manipulate threats to restrict rights and freedoms for the political interests will be a good maturity test for Ukrainian democracy and rule of law.


I admire the Ukrainian government’s work in the conditions of military aggression. But, as a lawyer, I want to be sure that further on the things we are fighting for – including respect for human rights – will not be sacrificed to what threatens them. Russia, as a number of latest decisions on restrictions of fundamental rights and freedoms show, has already failed this test. And if Ukraine manages to avoid this scenario, it may well become a good sample to follow for other countries under similar circumstances.


Conclusion

Obviously, this is by far not an exhaustive list of tests for the idea of human rights that occur in the Russian-Ukrainian war. However, it is these three that are the most critical for human rights in the modern world. They could appear in any other part of the world and within any other conflict: In Ethiopia, in South Sudan, Myanmar, Afghanistan, and others. However, it is highly illustrative that they arise so acutely within the war between two UN founding states that were present at the dawn of modern international human rights law 80 years ago.


Someone may say that this is one more critical moment for human rights in the world, of which there have already have been and of which many will still follow many. And they will be right! But should there not finally appear some positive and efficient samples to follow amidst hundreds of failures? Unfortunately, the events during the Russian aggression in Ukraine in 2022 have already failed to be the one.


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