Interactive Dialogue on High Commissioner Oral Presentation on Ukraine (res. 41/25) and Interim Report of Secretary-General on Human Rights Situation in Crimea (GA res. 75/192)

9 July

47th Session of the Human Rights Council, 21 June to 15 July 2021.

ITEM10 – Technical Assistance and Capacity Building

By: Tristan Arlaud

Executive Summary

The conflict in the Autonomous Republic of Crimean and Eastern Ukraine (Donbas region) started in 2014 and is still ongoing today. A significant dispute involving two member states of the United Nations (Ukraine and the Russian Federation), the European Convention on Human Rights, and parties to most human rights and humanitarian treaties. Following the shot down of a passenger jet plane traveling from Amsterdam to Malaysian, killing all 298 passengers on board, the worsening situation has caught the attention of the Human Rights Council and the international community as a whole.

Alike during most sessions of the HRC, important topics are brought forward on major human rights issues worldwide. It is not uncommon that the situation in one specific country is carried on the table, given the gravity of the state of affairs. The Crimea and Eastern-Ukraine conflict has very often been on the agenda of the Council over the past seven years.

During the 47th session of the HRC Council, held between 21 June and 15 July 2021, Ukraine and the human rights situation in Crimea was discussed in the form of an interactive dialogue on the 9 July, under ITEM 10 of the agenda, namely: Technical Assistance and Capacity Building.

Geneva Center for International Justice reiterates the need for improvement in this region of the world, given the number of casualties and frequent human rights violations. Breaches of international law should under no circumstances occur, especially for politically motivated reasons. In light of all the ITEMS discussed during this year's session, it is essential to highlight that the situation in Crimea and Eastern Ukraine has had little to no improvement in years, and the need for action is imminent.

Background

The Crimean Peninsula was initially conquered by Russia back in the 18th Century. In 1954, Crimea became part of Ukraine, with the Ukrainian government holding complete jurisdiction over the territory. After the fall of the Soviet Union in 1991, the city of Sevastopol remained one of the main ports for Russia's naval fleet. Today, the majority of the Crimean population is of Russian ethnicity and holds Russian citizenship. The conflict between Ukraine and the Russian Federation initially started in the Donetsk Basin (Donbas) and Crimea in April 2014 after what is referred to today within the international community as the "illegal annexation of the Crimean Peninsula." With separatists' groups in the Donbas, the Kremlin was accused of using armed groups to militarized them and pursue their fight against Ukraine and seize control over the territory that has been part of Ukraine since 1954. Ever since the Russian Federation has denied all allegations of international human rights law and international humanitarian law in both regions, the conflict is ongoing regardless of the countless attempts of a ceasefire made by Ukrainian authorities. In 2015, the Minsk Agreement was signed in Belarus as an attempt to obtain peace. Regardless of all the international obligations imposed on both states, it appears that there is an essential continuity in human rights violations, with civilians being the first victim in this very politicized conflict. The death toll is now in the thousands, and incidents are recurrent, such as the shot down of the Malaysian Airline passenger plane in 2014, killing 298 international citizens onboard. Furthermore, with different separatist, religious groups, and ethnicities, significant racial discrimination and even ethnic profiling are frequently reported, with primarily Russian authorities imposing their laws on foreign soil.

In this context, during the Interactive Dialogue on High Commissioner’s oral presentation held at the 47th session of Human Rights Council on 9 July 20221, the Council considered the OHCHR Report on Arbitrary Detention and ill-treatment in the context of armed in eastern Ukraine, 2014,2021; the Secretary General's report on the situation of human rights in the Autonomous Republic of Crimea (GA res. 75/192), and the HRC res. 41/15 adopted on 12 July 2019 on Cooperation with and assistance to Ukraine in human rights.

Reports of the OHCHR and Secretary-General

OHCHR report A/HRC/47/CRP.2 on arbitrary detention, torture, and ill-treatment in the context of armed conflict in eastern Ukraine, 2014-2021.

This report is based on the analysis of over 1,300 conflict-related individual cases documented by the various OHCHR missions since 2014. This very thematic report enabled the office to estimate the general human rights situation in eastern Ukraine correctly. Accordingly, the OHCHR notified that around 4,000 conflict-related detainees had been subjected to ill-treatment or torture, whether in the government-controlled or armed groups-controlled territory. The Council, however, welcomes a specific decrease in the prevalence of torture and ill-treatment in government-controlled areas. Regardless, it points out that still, some improvements need to be made, given the gravity of crimes and continuous human rights violations in other regions.

A reduction in unofficial places for arbitrary detention in government-controlled regions has been reported, but it is still common. However, the Donetsk People's Republic repeatedly uses unofficial places to create administrative arrest and preventive detention, often unfairly judged. Among the enforcement entities of the same Republic, there were also findings that many conflict-related detentions documented amounted to arbitrary arrest, an issue still ongoing today. Not to mention, there is too little accountability for violations committed on either side; meanwhile, we can now count victims in the thousands with repetitive human rights violations.

Secretary General’s Report A/HRC/47/58 on the Situation of Human Rights in the Autonomous Republic of Crimea and the City of Sevastopol (Mandated by UNGA res. 75/192)

This report covers the human rights development in the autonomous Republic of Crimea and the city of Sevastopol between 1 July and 31 December 2020. In contempt of the relentless efforts of the SG's office, it was a challenge to conduct a proper monitoring mission in line with the UNGA res. 75/192. Therefore, this report is based chiefly on remote monitoring; however, it highlights the human rights situation in this conflict region. What is first portrayed and is of crucial importance on this matter is the continuous failure of the Russian Federation to uphold its international human rights and humanitarian obligations as the occupying power in Crimea.

By the end of last year, the bureau brought forward important documented cases of deliberated harassment and hindrance of lawyers defending their clients in high profile proceedings, with no fair trial and guarantees of guilty verdicts. Further, continuous delivery of guilty verdicts brought forward with no warranties of fair proceedings. As of common occurrence in this conflict, new allegations of torture and ill-treatment were committed by the Russian Federal Security Services (FSB) and other law enforcement entities against individuals in custody. It has become recurrent to use such treatments as means of self-incrimination.

Furthermore, solitary confinement has also been reported to be utilized as a form of punishment for minor offenses or a coercive means to obtain statements from detainees to incriminate third parties. Plus, some Crimea detainees have described the conditions of all facilities as being very poor in light of the ill-treatment received.

Significant discrimination towards Jehovah's witnesses is a regularity in Crimea, with a prohibition of congregation and risk of criminal charges based on the simple practice of their faith. Concerning religion, the Orthodox Church came under increasing pressure with threats of losing two of their most prominent worship places in Crimea.

Conclusively, the OHCHR monitoring mission reflects that the human rights situation in Crimea is not improving.

Interactive Dialogue on High Commissioner oral presentation – Ukraine’s Representative

The Interactive Dialogue held on 9 July was first managed by Ms. Monique T.G Van Daalen, Vice-President of the Council and Rapporteur. Ms. Keva Lorraine BAIN then continued, also Vice-President of the Council. After they both gave all formalities of introduction, the Deputy High Commissioner for Human Rights, Ms. Nada Al-Nashif, took the floor and presented both OHCHR reports as previously summarized.

Afterward, Ms. Emine Dzaparova, the First Deputy Minister for Foreign Affairs of Ukraine, gave a clear and worrisome description of the situation as the country's Representative. In her statement, she accentuated that the reports reflect the terrible human rights situation ongoing in eastern Ukraine, the autonomous Republic of Crimea, and the city of Sevastopol. The Deputy brought forward testimonies of hostages in the Donbas region of south-eastern Ukraine, described as "a horror book." With frequent use of electrocutions, suffocations, penetrating angers, deprivation of basic needs, mock executions, it is clear that the cruelty of the situation in Donbas requires the attention of the whole international community. Ms. Dzaparova refers to a book written by a certain Stanislav, an ex-hostage who survived isolation in what is referred to as a torture camp.  According to the studied reports, it appears that Russia establishes various concentration camps in the Donbas region and secret prisons. She places Russia as the main perpetrator and the Federation's proxies to escape responsibility in her statement. She states: “as a member of the HRC and the Council of Europe, it is unbelievable that Moscow commits such horrors […] the Russian Federation continues to distort the truth and impose its false narrative…."  

Since the start of the conflict, the Russian Federation has continuously conducted a massive misinformation campaign at both the national and international levels, intending to legitimize its actions. Regardless, she states that Ukraine will continue the fight. Just in the first week of July, a new law was adopted to protect indigenous people. Nonetheless, this legal fight appears to have minimal impact as more than hundreds of Crimean Tartars are still illegally detained on unfounded political charges.

It is evident that the situation in Crimea and Eastern Ukraine is not improving, with no proper medical assistance, constant human rights violations, and an army trying to erase a whole culture and ethnicity.

Finally, the Deputy pointed out the recent development in creating a Crimean platform as a new coordination and consultation mechanism. The Ukrainian government will launch the platform by 23 August of this year. This platform holds the primary purpose to "enhance the international response to Russia's illegal occupation…."

Interactive Dialogue on High Commissioner oral presentation – Delegations

As part of any High Commissioner oral presentation dialogue, numerous delegations worldwide took the floor and expressed their concerns on the matter. Nations brought myriad issues with some recurring human rights concerns, transparently characterizing the conflict. Most countries who took the floor, such as Iceland, Slovenia, Canada, Finland, and many more, reiterated their condemnation of Crimea's illegal annexation by Russia and shared their support for Ukraine's sovereignty and territorial integrity. Other frequent conflict-related violations entail unlawful and arbitrary detentions, arrests, torture, abductions, and forced conscriptions of protected persons.

In the wake of the Covid-19 pandemic, and given the deteriorating situation in the region, some nations brought forward the necessity to stop sexual violence, degrading and ill-treatment of women, children, and Crimean Tatars. According to the reports and different video statements, the Crimean Tatars constantly face discrimination and ill-treatment in Crimea. They are a minority holding different religious beliefs and ethnicity originating from Turkey. They are categorized as indigenous people in the region. This year a law was enacted in Ukraine to protect the group from persecutions in Crimea and Eastern Ukraine.

Countries are also urging the Russian Federation to respect international obligations imposed by the Minsk Agreement 2015. The agreement was enacted and signed in February 2015, and established an immediate ceasefire, the immediate release of hostages and illegally detained individuals, to ensure monitoring of the situation at the Ukrainian-Russian border, to remove illegal armed groups, and was signed between the Russian Federation, Ukraine, the Donetsk People's Republic (DPR) and the Luhansk People's Republic (LPR). The primary purpose of this agreement was to establish peaceful communication, peace, and democracy in the Donbas region. According to the various thematic reports and all statements made by the delegations, it is clear that Russia is not fulfilling its obligations.

Like most nations, Germany and the United Kingdom insisted on proper investigation and accountability mechanisms. Some delegations insisted on directing the focus of the Council on solutions in a cooperative matter in the international community. For and foremost, delegations reminded the Council of a crucial point: Russia is a party to the conflict and not a mediator.

Belarus also took part in a dialogue. As a long-time government associate of Russia and not a party to the ECHR, the delegation mainly criticized the OHCHR's mission work as ineffective. Further, it denounced the Ukrainian government for not implementing most of the recommendations of the Council and the form of discrimination practiced by their authorities against Russian natives of Crimea and Donbas. Moreover, it demanded the investigation and the proper accountability process after the Odessa mass killing in 2014.

Finally, the human rights violations of the freedom of expression and the right to peaceful assembly were brought forward. In a region where people are arbitrarily imprisoned for denouncing the crimes and wrongdoings of governments, it is clear that most civilians region-wide now refrain from expressing their thoughts or protesting at the risk of being detained on bogus charges.

i.    Tensions between the Ukrainian and Russian Delegations

Unlike in most interactive dialogues on oral presentation, especially in the wake of the Covid-19 pandemic, where almost all seats of the Council are empty, and video statements are played, this very meeting was very vivid, and tensions arose between the Russian and Ukrainian Delegations. As soon as the Council played the Russian Federation's video statement, Ukraine's Delegate chairing in the Council at the moment abruptly took the floor. Ukraine's Representative demanded not to play the statement because such would amount to a clear breach of UNGA resolutions 68 and 62 on the territorial integrity of Ukraine and resolution 75/192 adopted last year. He stated that "organs and officials of the Russian Federation established in Crimea are illegitimate and should be referred.” Accordingly, he reiterated that according to the rules of procedures of the Council, “Russia taking the floor would constitute a clear violation of UNGA resolutions of which the Security Council is a subsidiary party." Pointing out the involvement of the Russian delegation in the aggression against Ukraine, the Delegate insisted to the Vice-President, Ms. Keva Lorraine BAIN, deny this person from speaking in the Council. The Representative stated, while the video resuming that “what we are witnessing today is a manifestation of a continuous attempt by the Russian Federation to subvert our country sovereignty and territorial integrity […] to undermine international institutions and to use the UN as a tool in this malicious act.”

The video was cut off numerous times by the delegations. Despite the request, the Council further insisted on playing the statement according to special rule 100 of the rules of procedure, which states that neither the delegation nor the secretariat has the mandate to credit or censor the accreditation of member states' delegations a UN Committee. It is for each member state to designate the members of their delegation. While cut off numerous times by Ukraine, the Russian Federation, in its statement, clearly transfers the blame on Ukraine for violating the freedom of belief depriving individuals of their natives' roots. It condemned the actions of Ukraine as a tool for destroying human rights institutions. Finally, the Representative calls on the HRC and Ukraine to grant minority languages national or regional status and protect the Crimean Tatars languages and the rights of the Russian-speaking population.

As a result, the Ukrainian Representative sitting in Geneva rejected and condemned the actions of the Council for letting the video play. It portrayed this act as a clear violation of UNGA resolutions. It will express its protests in a verbal note distributed among all Member States and observers of the HRC as an official UN document.

ii.    Ukraine Parliament Commission for Human Rights

As the country concerned, Ukraine’s parliamentary commission for human rights took the floor, elaborating on specific human rights violations in Crimea and Eastern Ukraine. Since the start of the conflict seven years ago, the four Geneva Conventions have been breached. The protagonists have under no circumstances fully respected the rights of civilians and behaved in line with international humanitarian law as occupying powers. More than 50,000 Ukrainian citizens have fled the peninsula, most of them being Crimean Tatars. Accordingly, today we still see the forced removal and deportation of Crimean Tatars by the Russian Federation, a minority constantly faced with violations of their fundamental rights and freedoms under the ECHR to which Russia is a party. Alarming breaches of Article 10 ECHR on freedom of expression are regularly reported; meanwhile, the Russian Federation completely ignores the requests of all international bodies, even from the International Court of Justice. Furthermore, the Federation continues to deploy more troops at the borders and within the peninsula in breach of the Rome Statute.

iii.    Civil Society

The participation of civil society was relatively small during this interactive dialogue; regardless, some important points were raised. Alike the delegations, the recurrent human rights violations of arbitrary detention, ill-treatment, freedom of expression, sexual and domestic violence, breach humanitarian laws, enforced disappearance, and most importantly, the restricted access to the OHCHR to properly conduct its monitoring mission were all brought forward.

Each NGO engaged in specific combat raised some interesting remarks.

The Baptiste World Alliance insisted on protecting religious minorities, specifically, the orthodox church, Islam, and Jehovah witnesses, which encompasses the region's three most targeted religions. The International Catholic Child Bureau emphasized the need to protect children on each side of the conflict, with the importance of adopting concrete measures to translate the normative framework of international law. The International Commission of Jurist exposed the effect of the incoherent system that is currently in place. Thus, the fact system completely undermines the independence of the judiciary—a crucial asset in a well-established democracy.

More importantly, the International Council of Russian Compatriots brought arguments and condemnations against Ukraine during their video statement. The organization claims that the proceedings initiated against Russian nationals in Ukraine have no legal grounds. It further criticized the UN on its mandate to protect human rights, stating that such does not happen on Ukrainian soil, and demands the Council to conduct proper investigations.

Response of the High Commissioner on Human Rights

In line with any proceedings of the Council as part of an interactive dialogue, the Deputy High Commissioner for Human Rights, Ms. Nada Al-Nashif, took the floor to answer the various questions raised by delegations and civil society and issue her concluding remarks.

i.    Access for the Monitoring Mission

As she did at the start of the meeting, the High Commissioner clearly explained that the OHCHR continues to seek access "safe and unfretted" access through comprehensive dialogue with all the parties involved, hoping that it will be granted in the future. However, the Russian Federation is still silent on the matter, and without the consent of its government, physical access is still restrained. Ms. Al-Nashif encourages all countries of the international community to utilize their influence. Given the politicization of the conflict, human rights still appear as a less critical issue in the eyes of the Russian Federation.

ii.   Freedom of expression, opinion, the right to peaceful assembly, and association are subject to limitations.

International human rights law guarantees all those freedoms, and limitations of those rights can only be justified if necessary and proportionate. With regards to Crimea and Eastern Ukraine, we are witnessing a breach of international law. The Russian Federation has even recently issued warnings to potential participants in what the government refers to as illegal assemblies, resulting in sanctions and criminal prosecutions. Russia is in breach of international human rights law here.

iii.   Diplomatic channel and the use of the International Community

Madam High Commissioner reiterated the need for the international diplomatic community to exercise its influence to aid and convince Russia to stop its actions. Significant publicity and a rise in public awareness are potent tools in the fight against such crimes at the international level. Furthermore, the Ukrainian government has accepted various recommendations and adapted its legislative framework, but further technical assistance from third-party countries can always accelerate the process. The use of all channels is vital.

iv.   Covid-19 and Human Rights

The office identified several critical human rights issues last December regarding the impact of the pandemic in the regions. The lack of accountability mechanisms needs to be addressed; in a place already in crisis, a rise in Covid-19 related deaths is almost inevitable. The Commissioner called on the Ukrainian government to sign the law lifting administrative liability for all civilians crossing the borders from armed-controlled to the government-controlled territory to obtain proper healthcare. The impact of the virus is remotely monitored, and reports have even shown that the pandemic was used as a tool by the Russian Federation to extend detentions and violate most detainees' rights. The situation on this topic is not improving, and direct access for all aid workers would improve the problem.

v.   Reports and Odessa Mass Killing

Finally, the Commissioner concluded by answering the question raised by the Belarussian delegation on the issues of reporting and the atrocities that occurred in Odessa in 2014. For that, the OHCHR has produced more than thirty-one reports on the human rights situation, nine thematic reports, and two dedicated reports since the start of the conflict. Contrary to what the delegation stated, the Ukrainian government has been immensely cooperative. The country has implemented more than 69% of the recommendations of the Council and the various committees. Field monitoring is taking place in Ukraine; only the approval of the Russian Federation is pending and, therefore, refraining the office from properly exercising its mandate.

Regarding the mass killing in Odessa, authorities still conduct investigations, and proceedings are completed in full compliance with international law. Regardless, progress has not yet been felt, but the relevant actors are still working to hold all perpetrators accountable.

Concluding Observations

Geneva International Center for Justice welcomes the progress made by the Ukrainian authorities in the government-controlled territory since the beginning of the conflict in the proclaimed Autonomous Republic of Crimea and Eastern Ukraine. Further, GICJ is pleased by the vital cooperation between Ukraine and the OHCHR to enable the office to conduct its monitoring missions to protect civilians, and finally, to one day, stop the ongoing conflict. Adopting a new law to protect indigenous people is most certainly a huge step forward to safeguard Crimean Tatars from discrimination and any form of violations to which have been victims for several years.

GICJ disapproves of the Russian Federation's and separatists' groups' constant breaches of international human rights law and international humanitarian law and lack of cooperation with the UN. The practices of arbitrary detentions, ill-treatment, torture, enforced disappearance shall under no circumstances, whether politically motivated or based on racial or religious differences, occur, as they are breaches of all fundamental rights governed by the Charter of the UN. Politics or religions are often the root causes of conflicts to which the primary victims are civilians.

GICJ welcomes international cooperation and comprehensive communication between all stakeholders to all disputes and within the whole of the international community. There is an urgent need to act regarding the Russian and Ukrainian conflict, as it has been going on for too long, and the human rights situation is not improving.

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