Features of legal regulation of human rights in armed conflicts

International human rights law is reflected primarily in the Universal Declaration of Human Rights, as well as in a wide range of international acts (Fig. 1). Therewith, their number is constantly growing.

Figure 1. International legal instruments on human rights

International law obliges states to respect, protect and exercise human rights. In addition, the International Court of Justice often emphasises in its decisions the obligation of states to respect human rights in situations of armed conflict [10-12]. To perform this obligation, states must refrain from creating obstacles or restrictions to the enjoyment of human rights, and protect citizens from violations of their human rights. International humanitarian law plays a significant role in this, being based on four Geneva Conventions (1949) and two Additional Protocols to them (1977), which were ratified by Ukraine (Fig. 2).

In addition, Ukraine has ratified all international agreements on the law of war and armed conflict, and implements their provisions in national legislation, including those aimed at the protection of human rights Order of the Ministry of Defense of Ukraine No. 164 “On approval of the Instruction on the procedure for implementation of international humanitarian law in the Armed Forces of Ukraine”. (2017, March). Retrieved from https://zakon.rada.gov.ua/laws/show/z0704-17#Text.

One of the reasons for its establishment and development lies in the need to clearly outline the legal status of participants in armed conflicts of an international and non-international nature. The main subjects of protection are persons who have ceased to take part in military operations for various reasons, and especially the civilian population of an armed conflict living or located in its zone. Determining their legal status is necessary primarily to protect their rights in conflict situations and at the same time regulate their behaviour in these conditions.

International humanitarian law constitutes a set of legal provisions aimed at limiting the consequences of armed conflict for people, including civilians, persons who are not involved or are no longer involved in the conflict, and even those who continue to take part in the conflict, such as combatants. To achieve this goal, international humanitarian law covers two areas: the protection of persons and the limitation of the means and methods of warfare.

Figure 2. International legal acts of humanitarian law

International humanitarian law aims to limit violence in armed conflicts in order, first of all, to ensure respect for the rights of those who do not take direct part in military operations. International humanitarian law regulates the rights of persons affected by armed conflict by ensuring a balance between humane treatment and military necessity.

There is an opinion that the provisions of international human rights law and international humanitarian law differ and are aimed at protecting different objects. The authors of this study believe that the said provisions are similar in essence, and these sub-branches of rights also protect individuals in a similar way. As a major difference, it should be noted that protection under international humanitarian law varies between civilians and combatants, while the international human rights law does not differentiate. The second difference is that the provisions of international humanitarian law are aimed at protecting only certain human rights and only to the extent that they face a specific threat as a result of armed conflicts. Moreover, they are not incompatible with the very presence of an armed conflict. Consequently, international humanitarian law does not include certain general rights, such as freedom of election and freedom of thought, as objects of its protection. At the same time, it protects a wide range of civil and political rights (the right to life of adversaries who have ceased to take part in hostilities), economic, social and cultural rights (the right to health), as well as collective rights (the right to a healthy environment). A considerable block of rights compriese those that are aimed at the situation of the wounded and sick, refugees. In general, in the limited areas covered by international humanitarian law, protection focuses on rights that are better adapted to the specific problems that arise within the framework of armed conflicts.

International humanitarian law takes a different approach to the protection of civilians than to the protection of combatants, which is particularly evident in the conduct of hostilities. Combatants can be attacked until they have surrendered or otherwise ceased fighting, and civilians can be targeted when they are directly involved in hostilities, and the principles of proportionality and caution provide them with protection from the side effects of attacks on military targets and combatants. This difference also affects the protection of individuals who are in the enemy's possession. The protection stipulated by the Geneva Convention III for captured combatants who become prisoners of war differs from the protection of civilians stipulated by the Geneva Convention IV Thus, the former cannot be interned without passing any individual procedure, and civilians subject to protection can be deprived of their liberty exclusively within the framework of the criminal proceedings or under a special decision conditioned by imperative security considerations. International humanitarian law also divides civilians into civilians those subject to protection (usually having the nationality of an adversary) and other civilians who enjoy only limited guarantees. Furthermore, the scope of protection of civilians on the territory of one of the belligerents is more limited compared to protection in the occupied territory [13].

International human rights law is more universal and does not contain substantial differences between the categories of citizens. It is described by the adaptation of the law of each category to the specific needs of the persons included in it (the rights of children, women, disabled people, migrants, etc.). The protection of human rights under international human rights law is vested in the state as a whole, regardless of its institutional structure or form of government. Thus, according to the Vienna Convention, “a party cannot refer to the provisions of its national law as justification for non-performance of agreements” Vienna Convention on the Law of Treaties. (1969, May). Retrieved from https://legal.un.org/ilc/texts/instruments/english/ conventions/1_1_1969.pdf.. Meanwhile, the protection of human rights by international humanitarian law is mainly aimed at states that are parties to armed conflict. For example, in the Geneva Conventions¹, states and their troops Geneva Convention (I) for the Amelioration of the Condition of the. Wounded and Sick in Armed Forces in the Field. (1949, August). Retrieved from https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf. ^{Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. (1949, August). Retrieved from} https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.31_GC-Il-EN.pdf. involved in an armed conflict are subject to obligations Geneva Convention (III) relative to the Treatment of Prisoners of War. (1949, August). Retrieved from https://www.un.org/en/ genocideprevention/documents/atrocity-crimes/Doc.32_GC-IIl-EN.pdf., and responsibility for violations is borne by direct participants and, if necessary, their civilian leaders Geneva Convention (IV) relative to the Protection of Civilian Persons in Times of War. (1949, August). Retrieved from https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf..

All participants in armed conflicts are usually divided into two categories: combatants - those who fight, and those who do not fight and are “under protection”. All the provisions of the Geneva Conventions are built around these key groups. Notably, these categories are not constant - in certain situations, a combatant can become a protected person (for example, when they are captured or surrendered as a result of a wound, without losing the status of a combatant).

According to the comparative analysis results, it can be concluded that the vast majority of modern armed conflicts are not of an international nature [14]. They constitute fighting between government troops and armed anti-government groups. Therewith, relations between the parties in these armed conflicts are more fierce than in international wars. This leads to massive violations of the fundamental rights and freedoms of both direct participants in armed conflicts and civilians on their territory. This is also justified by the fact that most often the ranks of illegal armed groups include mercenaries, criminal elements for whom violence is the norm and a source of profit. Therefore, in such armed conflicts, there are a considerable number of civilian casualties and violations of their rights.

In recent years, cases of internal armed confrontations and fighting between the Armed Forces of the government and illegal armed groups of various kinds of separatist or opposition movements have been spreading on different continents. Until recently, these armed conflicts did not have a clear legal regulation. In addition, the overwhelming majority of international humanitarian law provisions are aimed at resolving armed conflicts between states (out of 500 provisions of the Geneva Conventions with additional protocols to them, only 20 are aimed at non-international armed conflicts).

The sovereignty of states also stood in the way of applying the current legal provisions to solving internal problems, which, in their opinion, are the prerogative of the state and do not require internal intervention. Moreover, the extension of international humanitarian law provisions to internal armed conflicts would lead to the recognition of rebels, militants, and other members of armed groups as subjects of international law, which is unacceptable for states. At the same time, international humanitarian law imposes obligations on separatists/rebels, which is confirmed by the decision of the International Court of Justice of June 27, 1986 on the dispute between Nicaragua and the United States: “Article 3 of the Additional Protocol No. 2 to the Geneva Conventions of 1949 imposes obligations on Contras”.

At present, almost all states perceive the need for a legal settlement of armed conflicts of a non-international nature, which pose no less a threat to people's lives and rights than interstate conflicts. The devastating consequences of the civil war in Russia in the 1920s and in Spain in the 1930s were more significant in scale than some international wars. Current situations in Iraq, Syria, Israel, Ukraine, and other countries clearly indicate the need to apply international rules on the settlement of relations and human rights in internal armed conflicts. In this regard, paragraph 7 of Article 2 of the UN Charter states that the principle of non-interference does not apply to the use of coercive measures against states that violate human and civil rights based on Chapter VII of the UN Charter “actions against threats to peace, violations of peace, and acts of aggression”.

Consequently, international law in the field of human rights protection deliberately interferes in the internal affairs of states to achieve the main goal of ensuring the protection and respect of human dignity. International legal protection of human rights in situations of non-international armed conflicts is based on the general principles of modern international law, as well as on the fundamental principles of the law of armed conflicts (humanity; non-discrimination of war victims; international legal responsibility of states and criminal liability of individuals). An essential milestone on this path was the inclusion of a special Article 3 common to all conventions in the Geneva Conventions, which directly covers armed conflicts that are not international in nature and arise on the territory of one of the High Contracting Parties. This made it possible to extend the protection standards of the Geneva Conventions to categories of combatants that were not previously covered by it [15].

As for the situation in Ukraine, its qualification as part of the classification of an armed conflict of an international or non-international nature remains a debatable issue. Regardless, in 2015, international organisations adopted a range of decisions regarding the need to solve a considerable number of problems of ensuring human rights in the context of armed conflict and occupation. This issue became the subject of resolutions of the UN Security Council, the OSCE Parliamentary Assembly, PACE, which considered the issues of refugees and internally displaced persons, illegally detained citizens of

Ukraine, compliance with the Minsk agreements [16; 17]¹. From the very beginning of the armed conflict in Ukraine, the OSCE took an active part in monitoring and control over the observance of citizens' rights in conflict territories [18; 19]. The armed conflict in Ukraine has led to the need to introduce substantial changes to the current legislation and adopt new regulations. There was also an increase in accession to international provisions and ratification of international documents. Thus, Ukraine has assumed obligations to classify enforced disappearances as crimes in national law, in particular as crimes against humanity Resolution 2028 “The humanitarian situation of Ukrainian refugees and displaced persons”. (2015, January). Retrieved from http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=21480. ^{Law of Ukraine No. 525-V1II “On Ukraine's Accession to the International Convention for the Protection of All Persons from Enforced Disappearance”. (2015, June). Retrieved from} https://zakon.rada.gov.ua/laws/show/525-19#Text.. In addition, at the legislative level, the date of the beginning of the temporary occupation of part of the territory of Ukraine is determined - February 20, 2014 Law of Ukraine No. 685-V1II “On Amendments to Certain Laws of Ukraine Concerning Determination of the Date of Commencement of Temporary Occupation”. (2015, September). Retrieved from https://zakon.rada.gov.ua/laws/show/685-19#Text; Law of Ukraine No. 1207-VПП “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine”. (2014, April). Retrieved from https://zakon.rada.gov.ua/laws/show/1207-18#Text.. This was also largely due to expert opinions that the annexation of Crimea and the fighting in the Donbas Region led to a considerable deterioration in people's rights in Ukraine [13]. The impact of the armed conflict on this process has been noted since 2014 [20; 21].

The legal basis for the status of foreign combatants taking part in the armed conflict in Ukraine on both sides is also defined, which takes into account the provisions of international humanitarian law on these issues Law of Ukraine No. 716-VHI “On Amendments to Certain Legislative Acts of Ukraine Concerning Military Service in the Armed Forces of Ukraine by Foreigners and Stateless Persons”. (2015, October). Retrieved from https://zakon.rada.gov.ua/laws/show/716-19#Text.. One of the main regulations on the settlement of issues under study was the law on ensuring the rights and freedoms of citizens in the temporarily occupied territory of Ukraine adopted in 2015 [22; 23]. In addition, the current situation has forced Ukraine to make certain changes to the previously adopted provisions of international law, in particular the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms Resolution of the Verkhovna Rada of Ukraine No. 462-VIII “On the Statement of the Verkhovna Rada of Ukraine “On Ukraine's Derogation from Certain Obligations Defined by the International Covenant on Civil and Political Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms”. (2015, May). Retrieved from https://zakon.rada.gov.ua/laws/show/462-19#Text.. Certain rights of citizens, both directly on the territory of the conflict and in other regions of Ukraine, in particular the right of free movement, choice of place of stay and residence, have undergone changes in legal regulation Resolution of the Cabinet of Ministers of Ukraine No. 367 “On approval of the Procedure for entry into and exit from the temporarily occupied territory of Ukraine”. (2015, June). Retrieved from https://zakon.rada.gov.ua/laws/show/367-2015-%D0%BF#Text.. However, in practice, despite a significant breakthrough in legal regulation, the situation with the protection of citizens' rights has not been sufficiently improved. This is also evidenced by the reports of the Office of the United Nations High Commissioner for Human Rights on various issues related to human rights violations during the armed conflict in Ukraine [24-27].

At the same time, according to the survey results, 25.8% of Ukrainians believe that in 2020, the provision of human rights and fundamental freedoms in Ukraine has significantly worsened. 5% believe that the situation has improved, 25.8% - that the situation has worsened, 18% - that with some rights the situation has improved, and worsened with others, 35.7% believe that almost nothing has changed, 15.6% found it difficult to answer [28; 29]. On a 5-point scale, respondents rated respect for cultural rights at 3.2 points, political rights - 3.12 points, civil rights and freedoms - 2.91 points, environmental rights - 2.46 points, social and economic rights - 2.46 points. The study was conducted on October 6-19, 2020 by the ZMINA Human Rights Centre and the Ilko Kucheriv Democratic Initiatives Foundation with the support of the Human Rights for Ukraine Project, which is implemented in Ukraine by UNDP and funded by the Danish Ministry of Foreign Affairs. The survey was conducted in all regions of Ukraine, except for territories not controlled by the Government of Ukraine.

Recent events caused by the pandemic have increased the difficulties for the people in the war zone. “The closure of entry and exit checkpoints has divided families, deprived people of the opportunity to receive social benefits and restricted access to medical care and education”, said Matilda Bogner, head of the UN Human Rights monitoring mission in Ukraine Law of Ukraine No. 685-VIII “On Amendments to Certain Laws of Ukraine Concerning Determination of the Date of Commencement of Temporary Occupation”. (2015, September). Retrieved from https://zakon.rada.gov.ua/laws/show/685-19#Text.. The first decision of the ECHR in the case “Ukraine v. Russia” on January 14, 2021 Law of Ukraine No. 1207-VII “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine”. (2014, April). Retrieved from https://zakon.rada.gov.ua/laws/show/1207-18#Text., which recognised the fact of human rights violations in the occupied Crimea, should be recognised as a positive aspect of the international level [30; 31].

CONCLUSIONS

World development demonstrates that mass violations of human rights and freedoms, including the most important right - the right to life, constitute the result of armed conflicts, which are largely not international. They are mainly violated by the actions on the territory of the state of certain forces seeking a political coup, seizure of power or secession and the establishment of their own state, pursuing separatist goals, creating illegal armed formations, and conducting open hostilities against the state authorities. In response, the state is bound to use force and introduce changes to the legal regulation of the situation in national legislation in order to preserve law and order, protect the rights and freedoms of citizens.

Consequently, the purpose of international humanitarian law is to protect the lives and rights of people in extreme situations of war and armed conflict, primarily from brute force. The provisions of international law constitute the result of a compromise of various interests, primarily the interests of achieving military goals and humanitarian considerations, which is resolved through the application of humanitarian law provisions that restrict the use of force during armed conflicts of an international and non-international nature. Fundamental changes in the nature of modern wars and armed conflicts introduce substantial changes to national legislation and modern international humanitarian law and international human rights law, including in Ukraine.

REFERENCES

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