8. Irreparable Harm in the Ukraine Conflict: Protection Gaps and Interim Measures

In the jurisprudence of judicial and quasi-judicial bodies, “irreparable harm” has been interpreted to include damage that could: imperil the effectiveness of those bodies’ complaints procedures; lead to a violation of the respective treaty if not otherwise prevented; or not be adequately remedied through compensation. See Krsticevic and Griffey 2016, Ch. 9, pp. 293–325.

Donbas is the name of the eastern Ukraine region including Donetsk and Luhansk Oblasts; see OHCHR, Report on the human rights situation in Ukraine: 16 August to 15 November 2019 (12 December 2019), at para 4. “The total civilian death toll of the conflict reached at least 3,344 […] as of 15 November 2019. The number of injured civilians is estimated to exceed 7,000.” Available at: https://​www.​ohchr.​org/​Documents/​Countries/​UA/​28thReportUkrain​e_​EN.​pdf.

As of 7 December 2015, OHCHR reported at least 9,115 had been killed and 20,732 wounded in the conflict in eastern Ukraine, though cautioned this was “a conservative estimate and the real number of conflict-related casualties is considered to be higher”. See OHCHR, “Statement by Assistant Secretary-General for Human Rights, Ivan Šimonović” (11 December 2015), available at: http://​www.​ohchr.​org/​EN/​NewsEvents/​Pages/​DisplayNews.​aspx?​NewsID=​16875&​LangID=​E; and, OHCHR report of 9 December 2015 (note 11), para 4.

In this chapter, the term “Ukrainian forces” is used loosely to refer both to the Ukrainian armed forces, and to volunteer battalions that are subordinated to the Ministry of Defence or the Ministry of Internal Affairs. Hence, the term is not used to connote citizenship, as the majority of separatists are presumably Ukrainian citizens as well.

See Office of the President of the Russian Federation, “Paris ‘Normandy’ Summit Common agreed conclusions” (9 December 2019), available at: http://​en.​kremlin.​ru/​supplement/​5465.

See daily reports of the OSCE Special Monitoring Mission to Ukraine, available at: http://​www.​osce.​org/​ukraine-smm/​daily-updates. See also Human Rights Watch, “Ukraine: More Civilians Killed in Cluster Munition Attacks—Both Sides Have Used Widely Banned Weapon” (19 March 2015), available at: http://​www.​hrw.​org/​news/​2015/​03/​19/​ukraine-more-civilians-killed-cluster-munition-attacks.

See OSCE Special Monitoring Mission to Ukraine (SMM), Status Report: As of 9 December 2019. Available at: https://​www.​osce.​org/​special-monitoring-mission-to-ukraine/​442261.

See Second Minsk Agreement (February 2015), para 6.

See the reports of the United Nations (UN) Human Rights Monitoring Mission in Ukraine, operated by the Office of the UN High Commissioner for Human Rights (OHCHR), available at: http://​www.​ohchr.​org/​EN/​Countries/​ENACARegion/​Pages/​UAReports.​aspx. See also the reports of the Organization for Security and Co-operation in Europe (OSCE) Special Monitoring Mission to Ukraine (SMMU), available at: http://​www.​osce.​org/​ukraine-smm.

See OHCHR report of 20 November 2014, para 6. Human Rights Watch, “Eastern Ukraine: Questions and Answers about the Laws of War” (11 September 2014), available at: http://​www.​hrw.​org/​news/​2014/​09/​11/​eastern-ukraine-questions-and-answers-about-laws-war.

See Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, “Visit to Ukraine”, UN Doc. A/HRC/40/59/Add.3 (17 January 2019), at paras 47, 53, 55, 59.

Registrar of the Court, “European Court of Human Rights extends time allowed for Russia’s observations on admissibility of cases concerning Crimea and Eastern Ukraine” (Press release, 13 April 2015), Ref. No. ECHR 122 (2015).

The derogation resolution was adopted in line with Article 4 ICCPR and Article 15 ECHR, which provide for limited derogations from the rights provided by those instruments. See Verkhovna Rada of Ukraine, “Resolution on Approval of statement ‘On Ukraine derogation from certain obligations defined by the International Covenant on Civil and Political Rights and the European Convention on Human Rights’” (21 May 2015), available at: http://​zakon2.​rada.​gov.​ua/​laws/​show/​462-19. See also Council of Europe statement, “Ukraine derogation from European Convention on Human Rights” (10 June 2015, available at: https://​go.​coe.​int/​GUCEn ), and the official notification of the derogation (No. JJ7979C Tr./005-185; 10 June 2015, available at: https://​wcd.​coe.​int/​ViewDoc.​jsp?​id=​2331761&​Site=​DLAPIL-Conventions). In a November 2014 decree, the President of Ukraine had previously ordered the government to prepare a statement of derogation from some ECHR provisions. (See Decree No. 875/2014, dated 14 November 2014, at para 7.) While the parliament’s resolution declares derogation from ECHR and ICCPR provisions, the explanatory note accompanying the resolution also notes the government’s derogation from the European Social Charter (ESC). An earlier draft of the resolution provided for derogation as per ESC Part V, Article F, from Articles 1(2), 4(2) and (3), 8(1), 14, 15, 16; 17(1)(a) and (1)(c), 23, 30, and 31(1) and (2). However, without reference to the European Social Charter in the final resolution itself, the intended significance remains unclear. Also noteworthy, on 26 January 2015, the Cabinet of Ministers of Ukraine adopted Order No 47-r, which established a “regime of emergency” in Donetsk and Luhansk Oblasts, yet the order did not constitute a state of emergency or martial law, which only parliament can order.

Both the European Court and the Human Rights Committee have found that the permitted extent of derogation from any provisions specified must be proportionate and limited to what is required to counter specific threats justifying the given measure of derogation. Ukraine’s definition of the scope and nature of the derogation measures is excessively broad, and not in line with those international standards. For instance, the right to an effective remedy under Article 2(3) applies to the ICCPR as a whole, even when a public emergency threatens the life of a nation, including in relation to those provisions specified as not subject to derogation. European Court of Human Rights, A. and Others v. the United Kingdom [GC]—3455/05, Judgment of 19 February 2009; Merits, para 2(ii). Ireland v. the United Kingdom, Judgment of 18 January 1978, Series A no. 25. Human Rights Committee, General Comment No. 29: States of Emergency, UN Doc. CCPR/C/21/Rev.1/Add.11 (31 August 2001), para 4.

See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities: 2019, at para 285. Available at: https://​www.​icc-cpi.​int/​itemsDocuments/​191205-rep-otp-PE.​pdf.

Council of Foreign Relations, transcript of press conference with Russian President Putin on Ukraine (4 March 2014), available at: http://​www.​cfr.​org/​regional-security/​press-conference-president-putin-ukraine/​p32534.

In a report following its March 2014 human rights assessment mission (HRAM) to Ukraine, the OSCE Office for Democratic Institutions and Human Rights observed that any incidents of ethnic or religious intolerance “did not appear to be of a systemic nature and, in particular, the HRAM did not observe an escalation of violence against the Russian-speaking population in the east and south of Ukraine.” (HRAM report, para 67 (p. 42). The OSCE High Commissioner on National Minorities likewise stated on 6 March 2014 that she “found no evidence of violations or threats to the rights of Russian speakers in Crimea.” (Available at: http://​www.​osce.​org/​hcnm/​116180.) See also HRAM report, p. 79: “The HCNM did not find violations of the rights of Russians in Crimea during her visits or the visits of her delegations.” (Available at: http://​www.​osce.​org/​odihr/​118476?​download=​true.) See also HRAM report, p. 108: “The HCNM delegations spoke with interlocutors from different minorities and did not find evidence of systematic discrimination against minorities.” The Office of the UN High Commissioner for Human Rights similarly found: “The Russian Government justified its involvement [in Crimea] to be in response to the will of the local population and as an effort to protect ethnic Russians and Russian-speakers in the region. [….] It is widely assessed that Russian-speakers have not been subject to threats in Crimea.” (OHCHR report of 15 April 2014 (note 11), paras 20, 89).

OHCHR report of 15 May 2014 (note 11), paras 91, 95. The results announced by de facto authorities claimed a 75 percent turnout rate, with 89 and 96 percent of respondents in favour of independence, in DPR and LPR respectively. Only Russia recognised the results.

See, e.g., OHCHR statement, “Ukraine: Dangerous escalation in conflict proving catastrophic for civilians – Zeid” (3 February 2015), available at: http://​www.​ohchr.​org/​en/​NewsEvents/​Pages/​DisplayNews.​aspx?​NewsID=​15532&​LangID=​E.

See OSCE report, “Access to water in conflict-affected areas of Donetsk and Luhansk regions” (18 September 2015), available at: http://​www.​osce.​org/​ukraine-smm/​183151. See also OHCHR “Statement to the Security Council by Ivan Šimonović, Assistant Secretary-General for Human Rights, at the meeting on Ukraine” (6 March 2015), available at: http://​www.​ohchr.​org/​EN/​NewsEvents/​Pages/​DisplayNews.​aspx?​NewsID=​15662&​LangID=​E.

See Ukraine Humanitarian Country Team, “2015 Strategic Response Plan” (December 2014), avail-able at: http://​www.​who.​int/​hac/​crises/​ukr/​ocha_​ukraine_​strategic_​response_​plan_​dec2014pdf.

See OSCE Special Monitoring Mission to Ukraine, “Protection of Civilians and their Freedom of Movement in the Donetsk and Luhansk Regions” (6 May 2015), available at: http://​www.​osce.​org/​ukraine-smm/​156791?​download=​true.

OHCHR report of 15 August 2015 (note 11), para 13.

See OCHA, “Ukraine: Overview of population displacement (as of 22 May 2015)”, available at: http://​www.​humanitarianresp​onse.​info/​fr/​system/​files/​documents/​files/​ukr_​displacement_​22_​may_​2015.​pdf.

See, e.g., OHCHR report of 15 May 2014, paras 95–96, 101–102; OHCHR report of 15 June 2014, paras 196 et seq.; OHCHR report of 15 July 2014, paras 35 et seq.; OHCHR report of 28 August 2014, paras 49 et seq.; OHCHR report of 1 June 2015, paras 8, 13, 30 et seq.; OHCHR report of 15 August 2015, paras 6, 8, 42 et seq., 114 et seq.; OHCHR report of 9 December 2015, paras 7, 34 et seq., 103 et seq. (See note 11).

In December 2014, OHCHR reported: “The break-down of law and order in the conflict zone has resulted in killings, abductions, torture, ill-treatment, sexual violence, forced labour, ransom demands and extortion of money by the armed groups, which have been reported during the whole conflict period. Persecution and intimidation of people suspected of supporting Ukrainian forces or merely holding pro-Ukrainian sympathies (or perceived as such) remains widespread and has included deprivation of liberty and property, humiliation in public places and mock executions. Conditions of detention, especially for civilians, were often inhuman and degrading: people were kept in overcrowded basements or other ad hoc detention facilities without separate detention for men and women; supply of food and water was insufficient or irregular; and opportunities to maintain personal hygiene and contacts with the outside world were largely absent. Some detainees were subjected to torture and other ill-treatment, which included verbal assaults; physical beatings, including various objects (rifle butts, wooden bats and metal and rubber sticks); cutting with knives and other sharp objects; sexual assaults; threats of death and of persecution of relatives.” See OHCHR report of 15 December 2014 (note 11), para 41. For specific accounts of such abuse, see also OHCHR report of 8 October 2014, paras 9, 40; and OHCHR report of 20 November 2014, para 52. (See note 11).

In July 2014, OHCHR reported: “Intimidation and violence by the armed groups against civilians in the east has continued, with people being abducted and detained often for purposes of hostage taking. The armed groups also carry out acts of ill-treatment, torture and murder. Some of those detained by the armed groups are local politicians, public officials and employees of the local coal mining industry; the majority are ordinary citizens, including teachers, journalists, members of the clergy and students. The motivation for the abductions and detentions by the armed groups appears to be: (a) exchange with detainees held by the Government; (b) gain some influence on the situation; (c) extortion of property or money; (d) source of labour for digging trenches and preparing military barricades; (e) opportunistic ‘arrests’ of people; and (f) ‘internal discipline’ of the armed groups themselves. With these acts, the armed groups continued to exercise their power over the population in raw and brutal ways. […] In discussions with [OHCHR] following their release, many detainees who were held by armed groups report beatings, ill-treatment, sleep deprivation and very poor conditions while in detention, and forced labour, including digging trenches on the front lines.” See OHCHR report of 15 July 2014 (note 11), paras 38–40, 46, 72.

OHCHR report of 8 October 2014 (note 11), para 9. In a January 2016 radio interview, one of the separatist commanders in the early stages of the conflict admitted the use of executions against civilians to punish acts including looting. See RFE/RL, “Former Commander of Pro-Russian Separatists Says He Executed People Based On Stalin-Era Laws” (19 January 2016), available at: http://​www.​rferl.​org/​content/​ukraine-girkin-strelkov-executions-stalin-era/​27497491.​html. The sudden admission appeared to confirm allegations against the same commander, including as documented by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions. See the Special Rapporteur’s end-of-visit statement, “Ukraine: Lives lost in an accountability vacuum” (18 September 2015): http://​www.​ohchr.​org/​EN/​NewsEvents/​Pages/​DisplayNews.​aspx?​NewsID=​16460&​LangID=​E.

See Human Rights Watch, “Ukraine: Rebel Forces Detain, Torture Civilians” (28 August 2014), available at: http://​www.​hrw.​org/​news/​2014/​08/​28/​ukraine-rebel-forces-detain-torture-civilians.

Ibid.

Ibid.

See Amnesty international, “Abductions and Torture in Eastern Ukraine” (July 2014), available at: https://​www.​amnesty.​org/​download/​Documents/​8000/​eur500342014en.​pdf.

OHCHR report of 15 February 2015 (note 11), paras 33–34.

OHCHR report of 15 August 2015 (note 11), para 35.

See the nine periodic OHCHR reports (note 11). See also OSCE’s public reporting, for instance: http://​www.​osce.​org/​ukraine-smm/​125674; http://​www.​osce.​org/​ukrainesmm/​122939; http://​www.​osce.​org/​ukraine-smm/​122847; and http://​www.​osce.​org/​ukraine-smm/​121675.

See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities: 2018, at para 89. Available at: https://​www.​icc-cpi.​int/​itemsDocuments/​181205-rep-otp-PE-ENG.​pdf.

OHCHR report of 8 October 2014 (note 11), para 41.

For a chart of the most active volunteer battalions, and their supposed lines of subordination to Ukrainian institutions, see: http://​uacrisis.​org/​volunteer-battalions-eastern-ukraine/​.

OHCHR report of 15 February 2015, paras 33–41; OHCHR report of 15 December 2014, paras 9 and 69; OHCHR report of 20 November 2014, paras 10, 54–55; OHCHR report of 15 May 2014, para 103 (see note 11).

Those battalions included the Aidar, Dnipro-1, Donbas, Kyiv-1, Kyiv-2, and Right Sector battalions. OHCHR reported, among other allegations, that 20 detainees (including three women) were held in a basement by the Donbas, Dnipro-1 and Right Sector battalions, where they “were urinated on; forced to carry each other naked, covered in foam; boiling water was poured over their legs; and logs were thrown at them, while [one detainee’s] hands were cut with a knife.” See OHCHR report of 8 October 2014 (note 11), paras 42–43.

Amnesty International, “Ukraine: Abuses and War Crimes by the Aidar Battalion in the North Luhansk Region” (8 September 2014; AI Index: EUR 50/040/2014), available at: https://​www.​amnesty.​org/​en/​documents/​EUR50/​040/​2014/​en/​.

Amnesty International, “Breaking Bodies: Torture and Summary Killings in Eastern Ukraine” (22 May 2015; AI Index: Eur 50/1683/2015). Available at: https://​www.​amnesty.​org/​en/​documents/​eur50/​1683/​2015/​en/​.

Ibid.

E.g. Azov and Donbas territorial battalions; and Kyiv-1 and Dnipro-1 patrol police special task battalions.

See CPC Article 207 on “Lawful Apprehension”, under the section “Apprehension of a person without investigating judge’s, court’s ruling”. Ukrainian law enforcement authorities have cited this legal provision as the basis for detentions by military units and volunteer battalions. See Amnesty International, “Abductions and Torture in Eastern Ukraine” (note 34), p. 15.

Ibid.

See CPC Articles 12 and 186; Law of Ukraine on Free Legal Aid, Article 14.6.

See “Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009” (Strasbourg, 23 November 2011), para 10. Available at: http://​www.​cpt.​coe.​int/​documents/​ukr/​2011-29-inf-eng.​pdf.

Ibid.

See OHCHR report of 15 December 2014 (note 11), para 23; and Amendment to the Law of Ukraine on Fighting Terrorism.

In August 2014, OHCHR reported: “People are being detained without being given any explanation, for example while they were leaving the security operation areas affected by the fighting and security operation, and questioned without being delivered to law enforcement agencies. […] Detainees’ relatives were often not notified about the detention, and legal aid was rarely made available. According to the Criminal Code, an illegal detention is a crime, and as a consequence, the individual who is unlawfully detained must be immediately released. This does not seem to have been the case for those arrests which [OHCHR] followed: in the few cases of what appeared to be arbitrary detention that were brought to the attention of a court, releases have been rare.” See OHCHR report of 28 August 2014 (note 11), para 41.

Amnesty International, “Breaking Bodies” (note 44), pp. 5, 34.

OHCHR, report of 15 December 2014 (note 11), para 59.

See above at notes 31, and 34.

Amnesty International, “Breaking Bodies” (note 44), p. 26.

See “Zakharchenko: the exchange of prisoners will not [resume], while Kyiv breach the contract” (26 March 2015): http://​news.​rin.​ru/​eng/​news/​/​/​100668/​.

Ibid. See also “Chapter DND said about the readiness to exchange prisoners with Kyiv” (26 January 2015): http://​news.​rin.​ru/​eng/​news/​/​/​85086/​. The implication that Zacharchenko would order his forces to execute prisoners of war, rather than detain them, was startling and met with appropriate outrage in political responses and the news media—apparently leading him to backtrack in the days that followed. Nonetheless, the threat coincided loosely with increased reports of separatists executing Ukrainian soldiers upon their capture, particularly in the battles for the Donetsk airport and Debaltseve in January and February 2015. For details of those alleged summary killings, see Amnesty International, “Breaking Bodies” (note 44), pp. 16–19.

See OSCE report, “Access to Justice and the Conflict in Ukraine” (22 December 2015), available at: http://​www.​osce.​org/​ukraine-smm/​212311.

In October 2014, OHCHR reported: “An unlawful ‘criminal code’ was adopted by the so-called ‘presidium of the council of ministers’ of the ‘Donetsk people’s republic’; and entered ‘into force’ on 18 August. Modelled on the criminal code of the Russian Federation, its provisions include the establishment of military tribunals to implement death sentences to be applied in cases of aggravated murder.” (See OHCHR report of 8 October 2014 (note 11), para 9.) Amnesty International also condemned the so-called “criminal code”, under which military courts would be able to punish crimes including looting with execution, in violation of Common Article 3 of the Geneva Conventions. (See Amnesty International statement, “Armed group introduces ‘Criminal code’ permitting execution-style killings in eastern Ukraine”, 22 August 2014; AI Index: EUR 50/038/2014.) As of May 2015, however, neither the military court system nor law enforcement under the newly promulgated code appeared to have been meaningfully implemented, according to news media.

See Constitution of Ukraine, Article 9. The international human rights treaties ratified by Ukraine’s parliament include: International Convention for the Protection of All Persons from Enforced Disappearance; Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; Optional Protocol of the Convention against Torture; International Covenant on Civil and Political Rights; Second Optional Protocol to the International Covenant on Civil and Political Rights aiming to the abolition of the death penalty; Convention on the Elimination of All Forms of Discrimination against Women; International Convention on the Elimination of All Forms of Racial Discrimination; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child; Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; Optional Protocol to the Convention on the Rights of the Child on the sale of children child prostitution and child pornography; Convention on the Rights of Persons with Disabilities.

Law of Ukraine “On international treaties of Ukraine”, Article 17, part 2 (20 July 2004). Available at: http://​zakon4.​rada.​gov.​ua/​laws/​show/​1906-15.

The Law of Ukraine “On exercising of the decisions and practices of the European Court of Human Rights” (23 February 2006).

McBride, J., “The Training Needs of Ukrainian Judges and Lawyers with Regard to the European Convention on Human Rights,” Ref. DG-HL (2011) 13 (Strasbourg, 2 November 2011), paras 92–93, 101, 112. Available at: http://​www.​coe.​int/​t/​dgi/​hr-natimplement/​source/​echr/​CoE_​Ukraine_​ECHR_​Training_​Report_​Final.​pdf.

Ibid., para 96.

Ibid., para 111.

In November 2014, SBU reported to OHCHR that it had opened over 3,000 criminal proceedings into crimes of terrorism and separatism, leading to the arrest and detention of 668 suspects, of whom 150 were indicted, and only 30 were convicted. Noting that at least 19 of those 30 convictions were based on plea bargains, OHCHR voiced serious concern over “violations of fair trial standards,” including in light of “evidence of ill-treatment […] amounting to torture of people arrested by the SBU and MoIA in trying to secure forced confessions.” (OHCHR, report of 15 December 2014 (note 11), paras 59 and 69.) In December 2015, OHCHR reported that court decisions in such cases were “largely based on confessions of the accused”, who were more often sentenced to prison (versus deprivation of liberty with a probation period) if they refused to accept a plea bargain (see OHCHR report of 9 December 2015 (note 11), para 103).

In August 2015, OHCHR reported, “Victims of human rights violations alleged to have been committed by members of the Ukrainian military or law enforcement have been reluctant to file complaints fearing persecution if they are to remain in Government-controlled territory; or have been simply unable to file a complaint from the territories controlled by the armed groups, in the absence of functioning postal service between areas under Government control and those under the armed groups.” See OHCHR report of 15 August 2015 (note 11), para 117. In the UN humanitarian needs overview for 2015, OHCHR observed that: “The stress and burden of daily survival on the civilian population living in the [eastern Ukraine] conflict areas is enormous, let alone additional factors like loss of life, injury, fear of arbitrary detention, torture, sexual violence against men and women, forced conscription, and the illegal seizure and destruction of property. The breakdown of basic services and law and order leaves the people—including families, children, widows, and the elderly—on their own to face intimidation and reprisals, with little or no access to social, medical or legal services, or any means of livelihood to support themselves or their families.” (Available at: https://​www.​humanitarianresp​onse.​info/​en/​system/​files/​documents/​files/​2015_​HNO_​Ukraine_​20141205_​0.​pdf). In its 2014 report, the CPT also observed that a climate of “intimidatory or retaliatory action against prisoners” for reporting abuses to the CPT had been a constant threat in Ukrainian prisons over 15 years of CPT visits. See CPT, “Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 October 2013” (Strasbourg, 29 April 2014), para 9.

See Amnesty International, “Ukraine: Abuses and War Crimes by the Aidar Battalion in the North Luhansk Region”, note 43.

OHCHR report of 20 November 2014 (note 11), para 45.

Ibid., para 74.

See Human Rights Watch, ‘You Don’t Exist’: Arbitrary detentions, enforced disappearances, and torture in eastern Ukraine (21 July 2016), available at: https://​www.​hrw.​org/​report/​2016/​07/​21/​you-dont-exist/​arbitrary-detentions-enforced-disappearances-and-torture-eastern.

See HRW, “Ukraine: Justice Needed for Former Secret Prison Detainees” (19 March 2018), available at: https://​www.​hrw.​org/​news/​2018/​03/​19/​ukraine-justice-needed-former-secret-prison-detainees.

As of December 2014, the OMP had not opened any criminal investigations into human rights abuses committed by volunteer battalions in eastern Ukraine. (OHCHR, report of 15 December 2014 [note 11], para 57.) From 1 January to 22 October 2015, OMP opened a total of 63 cases related to crimes against civilians, only 14 of which had reportedly been completed and submitted to courts in that period. Out of a total of 460 criminal proceedings in 2015, 300 cases concerned desertion (in comparison to the 63 involving crimes against civilians), and only 14 had reportedly been completed and submitted to courts as of 22 October 2015. See OHCHR report of 9 December 2015 (note 11), para 103.

OHCHR, report of 15 February 2015 (note 11), para 72. OHCHR noted that many volunteer battalions did not have standardized uniforms that clearly identified their personnel, making concrete evidence of their involvement difficult. Moreover, witnesses of abductions also observed battalions’ insignia being covered to prevent their identification. Ironically, even when eyewitnesses identified insignias of perpetrators, civilian prosecutors similarly shirked their duties to open investigations into alleged abductions by volunteer battalions under their jurisdiction, arguing that witnesses’ accounts of uniforms and insignia did not prove the involvement of volunteer battalions, since such outfits were easily attainable.

See Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, “Visit to Ukraine”, UN Doc. A/HRC/40/59/Add.3 (17 January 2019), at para 59.

In its January 2015 judgment in the case of Sayğı v. Turkey, the Court reaffirmed: “[T]he obligation to investigate […] should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony. […] [I]t must be stressed that the above-mentioned obligations apply equally to cases where a person has disappeared in circumstances which may be regarded as life-threatening. […] [W]here there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures.” European Court of Human Rights, Sayğı v. Turkey, Application no. 37715/11, paras 43–45, 48.

See Constitution of Ukraine, Chapter II “Human and Citizens’ Rights, Freedoms and Duties”. See also the Criminal Code of Ukraine and Criminal Procedural Code of Ukraine, which provide specific fair-trial rights, and prohibit torture, ill-treatment and unlawful detention, among other offences.

See: ibid.; Bautista de Arellana v Colombia, Communication No. 563/1993, CCPR/C/55/D/563/1993 (1995); Chaparro v Colombia, Communication No. 612/1995, CCPR/C/60/D/612/1995 (1997); and Hugo Rodríguez v Uruguay, Communication No. 322/1988, CCPR/C/51/D/322/1988, para 12.4 (1994).

Human Rights Committee, “General Comment No. 31 on the nature of the general legal obligation imposed on State parties to the Covenant”, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13, para 8.

Ibid., para 5.

Ibid., para 16.

Ibid., para 18.

CAT, Article 12.

CAT, Article 7.

CAT, Articles 13–14. The provision of redress required of States under Article 14 in response to abuses comprises access to effective remedies and reparations (including compensation, guarantees of non-repetition, rehabilitation, restitution and satisfaction). See the Committee against Torture’s draft General Comment No. 3 on CAT, Article 14, available at: http://​www2.​ohchr.​org/​english/​bodies/​cat/​comments_​article14.​htm.

Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2, paras 7, 18. As the Special Rapporteur on extrajudicial executions elaborated in a 2010 report: “Where there is a pattern of killings and the government’s response (in terms either of prevention or of accountability) is inadequate, the responsibility of the State is engaged. Under human rights law, the State is not only prohibited from directly violating the right to life, but is also required to ensure the right to life, and must meet its due diligence obligations to take appropriate measures to deter, prevent, investigate, prosecute and punish perpetrators.” Report of the Special Rapporteur on extrajudicial executions to the Human Rights Council, 20 May 2010, A/HRC/14/24, para 46(d).

Forms of ill-treatment expressly prohibited under Common Article 3 include: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Henckaerts and Doswald-Beck 2009, Rule 158; Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force, 1 July 2002) 2187 UNTS 3, Articles 7 and 8; Security Council, Resolution 955 (1994), Annex, Article 4, “Statute of the International Tribunal for Rwanda”; International Criminal Tribunal for the former Yugoslavia, Prosecutor v Duško Tadić (2 October 1995), No. IT-94-1-AR72, Decision on the Defense Motion for an Interlocutory Appeal on Jurisdiction, para 117. For a lengthier analysis of these customary obligations, as reflected in the above instruments and jurisprudence, see: Rodley and Pollard 2009, pp. 262, 271.

Henckaerts and Doswald-Beck 2009, Rule 159.

OHCHR, report of 15 December 2014 (note 11), para 56.

OHCHR, report of 15 February 2015 (note 11), para 73.

See the statement of the ICC, “Ukraine accepts ICC jurisdiction over alleged crimes committed since 20 February 2014” (8 September 2015), available at: https://​www.​icc-cpi.​int/​en_​menus/​icc/​press%20​and%20​media/​press%20​releases/​Pages/​pr1146.​aspx. See also the declaration by the Government of Ukraine accepting ICC jurisdiction, lodged under Article 12(3) of the Rome Statute (8 September 2015), available at: https://​www.​icc-cpi.​int/​iccdocs/​other/​Ukraine_​Art_​12-3_​declaration_​08092015.​pdf.

See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities: 2019, at para 288. Available at: https://​www.​icc-cpi.​int/​itemsDocuments/​191205-rep-otp-PE.​pdf.

Ibid. at para 285.

Inter-state application and request for interim measures in the case Ukraine v. Russia (Application No. 20958/14), 13 March 2014.

Registrar of the Court, “Interim measure granted in inter-State case brought by Ukraine against Russia” (Press release, 13 March 2014), Ref. No. ECHR 073 (2014). See also “Letter dated 17 March 2014 from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council”, UN Doc. S/2014/196 (17 March 2014).

For a summary of those inter-state cases, see European Court of Human Rights, “Q & A on Inter-State Cases” (12 June 2019), available at: https://​www.​echr.​coe.​int/​Documents/​Press_​Q_​A_​Inter-State_​cases_​ENG.​pdf. In the most recent of those cases, brought by Ukraine against the Russian Federation with regard to the seizure of Ukrainian naval personnel in the Kerch Strait, the European Court also requested interim measures. See Registrar of the Court, ECHR 421 (2018), at note 120 below.

Registrar of the Court, Press release of 13 April 2015 (note 14). Of the 526 cases related to the conflict in Ukraine, 307 applications were lodged against both Ukraine and Russia, while 194 applications were lodged against Ukraine only, and 25 against Russia only. More than 20 of the complaints related to events in Crimea, primarily in the context of its occupation by Russia in March 2014.

Ibid.

Registrar of the Court, “European Court of Human Rights communicates to Russia new inter-State case concerning events in Crimea and Eastern Ukraine” (Press release, 1 October 2015), Ref. No. ECHR 296 (2015).

Registrar of the Court, “Grand Chamber hearing on inter-State case Ukraine v. Russia (re Crimea)” (Press release, 11 September 2019), Ref No. ECHR 309 (2019).

Registrar of the Court, “ECHR to adjourn some individual applications on Eastern Ukraine pending Grand Chamber judgment in related inter-State case” (Press release, 17 December 2018), Ref. No. ECHR 432 (2018).

Private phone interviews on 13 and 25 April 2015. Due to the sensitivity of the topics of these cases, the names of the organizations and interviewees are omitted.

See, e.g., OSCE report, “Access to Justice and the Conflict in Ukraine” (22 December 2015), available at: http://​www.​osce.​org/​ukraine-smm/​212311. See also OHCHR report of 15 August 2015 (note 11), paras 7, 115 and 116.

Registrar of the Court, “European Court of Human Rights communicates to Russia new inter-State case concerning events in Crimea and Eastern Ukraine” (Press release, 1 October 2015), Ref. No. ECHR 296 (2015).

See the Russian Constitutional Court’s statement on the ruling, available at: http://​www.​ksrf.​ru/​ru/​News/​Pages/​ViewItem.​aspx?​ParamId=​3244.

Article 27 of the Vienna Convention on the Law of Treaties (1969) provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

See Federal Constitutional Law No. 7-FKZ, “on Amendments to the Federal Constitutional Law on the Constitutional Court of the Russian Federation” (dated 14 December 2015), available at: http://​www.​venice.​coe.​int/​webforms/​documents/​?​pdf=​CDL-REF%282016%29006-e.

See Venice Commission, Opinion no. 832/2015 (13 June 2016), CDL-AD(2016)016, at paras 142 et seq. Available at: https://​www.​venice.​coe.​int/​webforms/​documents/​default.​aspx?​pdffile=​CDL-AD(2016)016-e.

See, for example, the following statements of the MFA: “Foreign Minister Sergey Lavrov’s interview with Euronews, Moscow” (16 October 2018, available at: https://​www.​mid.​ru/​en/​foreign_​policy/​news/​-/​asset_​publisher/​cKNonkJE02Bw/​content/​id/​3374833); “Director of the Foreign Ministry’s Department for Humanitarian Cooperation and Human Rights and Commissioner for Human Rights, Democracy and the Rule of Law Anatoly Viktorov in an interview with Rossiya Segodnya” (11 December 2017, available at: https://​www.​mid.​ru/​en/​foreign_​policy/​humanitarian_​cooperation/​-/​asset_​publisher/​bB3NYd16mBFC/​content/​id/​2983301); and “Briefing by Foreign Ministry Official Spokesperson Maria Zakharova, Moscow” (2 March 2018, available at: https://​www.​mid.​ru/​en_​GB/​foreign_​policy/​news/​-/​asset_​publisher/​cKNonkJE02Bw/​content/​id/​3106032).

See ICJ, Request for the indication of provisional measures, Ukraine v. Russian Federation. Order of 19 April 2017, at para 106. Available at: https://​www.​icj-cij.​org/​files/​case-related/​166/​166-20170419-ORD-01-00-EN.​pdf.

Ibid. at para 97.

UNGA Res. A/RES/72/190, “Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine” (19 December 2017), at para 3. Available at: https://​undocs.​org/​en/​A/​RES/​72/​190.

UNGA Res. A/RES/73/263, “Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine” (22 December 2018), at para 1. Available at: https://​undocs.​org/​pdf?​symbol=​en/​A/​RES/​73/​263.

Report of Secretary-General, “Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine” (2 August 2019), UN Doc. A/74/276; at paras 48 to 50. Available at: https://​reliefweb.​int/​sites/​reliefweb.​int/​files/​resources/​A_​74_​276_​E.​pdf.

See Ministry of Foreign Affairs of the Russian Federation, “Press release on judgment of the International Court of Justice regarding Russia’s preliminary objections to jurisdiction in the case Ukraine v. Russian Federation” (9 November 2019), available at: https://​www.​mid.​ru/​en/​web/​guest/​maps/​ua/​-/​asset_​publisher/​ktn0ZLTvbbS3/​content/​id/​3892148.

See Ministry of Foreign Affairs of the Russian Federation, “Press release on judgment of the International Court of Justice regarding Russia’s preliminary objections to jurisdiction in the case Ukraine v. Russian Federation” (9 November 2019), available at: https://​www.​mid.​ru/​en/​web/​guest/​maps/​ua/​-/​asset_​publisher/​ktn0ZLTvbbS3/​content/​id/​3892148.

Registrar of the Court, ECHR 421 (2018), “ECHR grants interim measure in new inter-State case brought by Ukraine against Russia concerning events in the Kerch Strait” (4 December 2018). Available at: https://​hudoc.​echr.​coe.​int/​app/​conversion/​pdf?​library=​ECHR&​id=​003-6269235-8166102&​filename=​ECHR-grants-Rule-39-in-new-inter-State-case-Ukraine-v.​-Russia-concerning-events-in-the-Kerch-Strait.​pdf.

ITLOS, case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation). Request for the prescription of provisional measures. Order, at para 124. Available at: https://​www.​itlos.​org/​fileadmin/​itlos/​documents/​cases/​case_​no_​26/​C26_​Order_​25.​05.​pdf.

See Ministry of Foreign Affairs of the Russian Federation, “Press release on the information forwarded to the International Tribunal for the Law of the Sea regarding the November 2018 incident in the Kerch Strait” (26 June 2019), available at: https://​www.​mid.​ru/​en/​web/​guest/​maps/​ua/​-/​asset_​publisher/​ktn0ZLTvbbS3/​content/​id/​3701462.

See Delegation of the EU to Russia, “European Council meeting, 20–21 June: main results” (24 June 2019), available at: https://​eeas.​europa.​eu/​delegations/​russia/​64527/​node/​64527_​bg.

See European Parliament, “European Parliament resolution of 18 July 2019 on Russia, notably the situation of environmental activists and Ukrainian political prisoners” (18 July 2019). https://​www.​europarl.​europa.​eu/​doceo/​document/​TA-9-2019-0006_​EN.​html.

Ibid.

OHCHR, Report on the human rights situation in Ukraine: 16 November 2018 to 15 February 2019, at para 14. Available at: https://​www.​ohchr.​org/​Documents/​Countries/​UA/​ReportUkraine16N​ov2018-15Feb2019.​pdf.

OHCHR, Report on the human rights situation in Ukraine: 16 May to 15 August 2019, at para 119: https://​www.​ohchr.​org/​Documents/​Countries/​UA/​ReportUkraine16M​ay-15Aug2019_​EN.​pdf.

OHCHR, Report on the human rights situation in Ukraine: 16 August to 15 November 2019, at para 9. Available at: https://​www.​ohchr.​org/​Documents/​Countries/​UA/​28thReportUkrain​e_​EN.​pdf.

See Amnesty International, “Russian Federation: Crimean Tatar Edem Bekirov Finally Free” (18 September 2019), available at: https://​www.​amnesty.​or.​jp/​en/​get-involved/​ua/​ua/​2019ua079.​html.

See Human Rights Watch, “Russia/Ukraine Prisoner Exchange Includes Release of Oleg Sentsov” (7 September 2019), available at: https://​www.​hrw.​org/​news/​2019/​09/​07/​russia/​ukraine-prisoner-exchange-includes-release-oleg-sentsov.

See letters of the UN Human Rights Committee to the Russian Federation, available at: Kharkiv Human Rights Protection Group, “Cathedral plundered as Russia pushes to crush the Ukrainian Orthodox Church in Crimea” (10 December 2019): https://​khpg.​org/​en/​index.​php?​id=​1575823469.

Ibid.

Olexandra Matviychuk, Center for Civil Liberties (phone conversation, 26 December 2019).

European Court of Human Rights, “Info Note no. 138, Rule 39 of the Rules of the Court, Interim measures,” Statement issued on 11 February 2011 by the President of the Court.

International Court of Justice, Order of 23 January 2020 in the case of The Gambia v. Myanmar. Available at: https://​www.​icj-cij.​org/​files/​case-related/​178/​178-20200123-ORD-01-00-EN.​pdf.