As the pandemic was spreading around the world a year ago, we explored in a post for Just Security Russia’s responsibility to ensure public health in the Ukrainian territories of Crimea and certain districts of Donbas. As discussed, local authorities are legally obliged under international humanitarian law (IHL) and international human rights law (IHRL) to protect, to the maximum possible extent, the populations of Crimea and eastern Ukraine from the detrimental effects of the coronavirus pandemic, a duty they appear to be failing to perform.
That said, Russia is not the sole State with international law obligations vis-à-vis the residents of these territories. Ukraine, as the displaced sovereign, retains certain residual obligations under IHL and IHRL towards its citizens in these territories in relation to the coronavirus pandemic. This article outlines these obligations and assesses the level of Ukraine’s compliance.
Residual Obligations of a Displaced Sovereign under International Law
Under IHRL, States have a duty to secure and protect the human rights of all individuals “within their jurisdiction” (see for example ECHR. Art. 1; ICCPR, Art 2), which normally extends throughout their territories. When a State does not exercise de facto control and competence over its entire territory — for instance, due to a military occupation — it preserves de jure jurisdiction over the uncontrolled territory, which continues to be recognized as part of the State’s territory under international law (Ilascu & Others v. Moldova & Russia, para. 333; Catan and Others v. Moldova & Russia, para. 109; Mozer v. Moldova and Russia, para. 101). Accordingly, the displaced sovereign retains its duty to protect the human rights of its citizens residing in parts of its territory outside of its control (Mozer v. Moldova & Russia, para. 99-100).
However, under such circumstances, the scope of the displaced sovereign’s human rights duties is reduced because it lacks effective control over the territory in question. Human rights jurisprudence is consistent in requiring the states to take all appropriate and sufficient legal, administrative, economic, and diplomatic measures within their power to ensure respect for the human rights of the population outside of its control (Ilascu & Others v. Moldova & Russian, para. 322-330-331; Ivantoc and Others v. Moldova and Russia, para. 105). In assessing whether this duty is met, one must evaluate, taking into account the prevailing circumstances on the ground, “to what extent minimum effort was nevertheless possible and whether it should have been made” (Ilascu & Others v. Moldova & Russia, para. 334). Compliance with these duties becomes particularly crucial in public emergency situations, such as the coronavirus pandemic, where individuals find themselves in a more vulnerable position.
Similarly, a displaced sovereign continues to be bound by the applicable rules of IHL in its treatment of protected persons during armed conflict. The International Court of Justice (ICJ) has previously found that IHRL and IHL apply in parallel in such situations (ICJ Wall Opinion, para. 106. Note that earlier, the ICJ held that IHL is lex specialis in times of war – ICJ Nuclear Weapons Opinion, para. 25. Another view is that IHRL does not apply in armed conflict, because it is displaced by IHL). As will be detailed below, a number of IHL provisions impose duties on the displaced sovereign regarding the protection of its citizens from the effects of the conflict, including a responsibility to respect and protect the sick and the infirm and to ensure that the hostile power acts in accordance with IHL. In assessing Ukraine’s compliance, obligations provided by these branches of law must be taken into account in parallel.
Ukraine’s Positive Obligations
Examples of the measures that Ukraine is expected to take may be found in the European Court of Human Rights (ECtHR) jurisprudence in relation to the Moldovan territory of Transdniestria. Moldova lost control of that territory in the early 1990s to a secessionist movement backed by Russia. In a range of cases brought by victims of human rights violations against Moldova and Russia before the ECtHR, the Court refrained from describing the standard of a State’s compliance with its human rights obligations. But the Court found the following measures taken by Moldova to be sufficient: (i) submitting complaints to the international community on the violations committed by the secessionist forces, (ii) initiating criminal proceedings against the occupation authorities for their unlawful conduct, (iii) raising the violation(s) in question during negotiations with the occupying power, (iv) sending medical personnel to assist the victim(s), and (v) providing financial assistance to the victim(s) and their families (Ilascu & Others v. Moldova & Russia, paras. 336-352; Ivantoc and Others v. Moldova and Russia, paras. 107-111).
Considering the factual similarities between the situations in Moldova and Ukraine, these measures may be used as a barometer in assessing how successful Ukraine has been in discharging its human rights obligations vis-à-vis the residents of Crimea and eastern Ukraine. As will be discussed below, it may also serve as a barometer of Ukraine’s success in meeting its IHL obligations towards this population.
Ukraine’s Response to COVID-19 in Crimea and Donbas
With the five measures above from the Moldova case as a baseline, we can assess how Ukraine has approached its obligations to the population of Crimea and Donbas amidst the pandemic by examining the measures taken by the State since early 2020.
- Submitting complaints to the international community on the violations committed by the de facto administrations
When it comes to submitting complaints, Ukrainian authorities have been extremely vocal in condemning the incompetence of the Crimean and Donbas administrations in handling the COVID-19 crisis since its inception (see here, here, here, here and here). On April 5, 2020, the Ukrainian Ministry of Foreign Affairs expressed concern to the Russian Federation about “the state of protection of life and health of the population of the temporarily occupied territories of [Crimea] and certain areas of Donetsk and Luhansk regions,” and demanded the Russian Federation “to protect life and health of the population [of these territories] in the context of the COVID-19 pandemic.” On April 15, 2020, the ministry called on the international community to “ensure unblocking” of access to Crimea for provision of humanitarian and medical assistance.
- Initiating criminal proceedings against the occupation authorities for their unlawful conduct
Concerning criminal cases, Ukraine has been actively attempting to hold the de facto authorities accountable for their failures in responding to the coronavirus outbreak. On April 3, 2020, the Donetsk Prosecutor’s Office of Ukraine and the Luhansk Prosecutor’s Office of Ukraine (the regional prosecutorial authorities responsible for the prosecution of criminal acts committed in the Donetsk and Luhansk regions, respectively) initiated criminal investigations against the Donetsk People’s Republic authorities (DPR) and the Luhansk People’s Republic authorities (LPR) for their failure to abide by their obligations under IHL to take adequate measures for the prevention of the spread of coronavirus in parts of the Donetsk and Luhansk regions under their control. The Crimean Prosecutor’s Office is investigating the failure to ensure humane conditions in the detention centers as a war crime.
- Raising the violation(s) in question during the negotiations with the occupying power
As regards raising coronavirus-related human rights violations during negotiations with the de facto authorities of Crimea and Donbas, the publicly available information does not suggest that Ukraine has initiated the relevant discussions on the possible relief measures, humanitarian aid, medical assistance and other matters. If it has failed to do so, Ukraine may be in breach of its human rights obligations (Ilascu & Others v. Moldova & Russia, para. 348).
- Sending medical personnel (and more broadly providing medical care) to assist the victim(s)
With respect to sending medical personnel and, more broadly, providing medical care to the sick in Crimea and Donbas, Ukraine does not supply testing kits, medication, or vaccines to the territories outside of its control, neither does it send nurses and doctors. Ukraine contends that its ability to provide such assistance is hindered by the “ongoing armed aggression of the Russian Federation.” However, it is unclear how much Ukraine has pursued genuine negotiations to overcome that barrier to provision of aid. Obviously, if Ukraine is simply not willing to negotiate, as may be the case, this justification may be no justification at all. On the other hand, if Ukraine has sought to negotiate but the Russian and/ or local authorities in Crimea and Donbas refused to cooperated, this would most likely not be considered a breach on the part of Ukraine.
Moreover, Ukraine closed its border with Crimea and the occupied territories of eastern Ukraine for several months, thus hindering passage for those who wanted to receive assistance in government-controlled territory or wished to return home to non-government-controlled areas. Specifically, the border between Crimea and Ukraine was closed from the Ukrainian side between March 17, 2020, and June 15, 2020, then again from Aug. 9 to 30, 2020. Soon after a wave of criticism from human rights activists, Ukrainian authorities, however, updated the rules allowing their citizens who ended up on the wrong side of the border to cross over and return to their homes, limiting the negative impacts of movement restrictions on Ukrainian citizens residing in Crimea.
Similar leeway was not provided to those residing in eastern Ukraine. Between March 22, 2020, and November 10, 2020, Ukraine suspended all movement across the line of contact in eastern Ukraine; in January 2020 alone, people crossed there 1,067,899 times. While the Ukrainian authorities allowed some of those stranded to cross the border into non-government-controlled territory for family reunification, this practice was halted on March 27, 2020. Those who were unable to cross in time and thus were unable to return to their homes in the non-government-controlled territory received no support from local authorities where they were stranded.
This hardly could be considered as adequate meeting of Ukraine’s obligations towards the civilian population of Crimea and Donbas. While certain rights can be restricted for public-health reasons in exceptional circumstances such as the coronavirus pandemic, the restrictions must meet the requirements of legality, necessity, proportionality, and non-discrimination. The restrictions are lawful if they are imposed according to a national law in force at the time of application, are clear and accessible to the public, and are not arbitrary or unreasonable. The restrictions are considered legally necessary if introduced to protect national security, public order, public health or morals, or the rights and freedoms of others. Finally, the restrictions must be proportional in their impact on those whose rights are interfered with (Opt Prot. Art. 2(3); ICCPR, Art. 12). To comply with this requirement, Ukrainian authorities must have struck a “fair balance” between the demands of the general interest of the Ukrainian community and the requirements of the protection of the affected individuals’ fundamental rights (see Beyeler v. Italy, para. 107).
Furthermore, it does not appear that Ukraine closed the checkpoints in connection with a specific military plan and in pursuit of a legitimate military objective, such as preventing further takeover of territory by the adversary, which might have been allowable under IHL. Since 2014, regardless of the situation on the frontline or any military advantage or loss, Ukraine had halted movement only through the checkpoints that were in dangerous proximity to the places of active combat and only for several days at a time.
So this case was an exception. Ukraine opted to close the checkpoints in Donbas “[i]n order to effectively counteract and prevent the introduction of coronavirus infection into the territory controlled by the Government of Ukraine.” Furthermore, the announcement was issued on the Facebook page of the armed forces in charge of the military operation less than a day before the decision entered into force. In the same period of time, the State border remained open for foreigners permanently residing in Ukraine. Although necessary to prevent the disease from spreading, the restrictions of movement arguably did not meet the requirements of legality, proportionality, and non-discrimination, in that they were seemingly arbitrarily imposed on those who reside in the territory outside of Ukraine’s control.
- Providing financial assistance to the victim(s) and their families
Ukraine does not appear to provide any financial assistance to the residents of the uncontrolled territories affected by COVID-19. To the contrary, closing of the checkpoints between March and November without any regard to the particular financial and personal circumstances of those who were stranded along the border caused a humanitarian crisis as people had to spend little money they had left to arrange accommodation near the checkpoints and were unable to get back to families where they were the only providers and/ or caregivers.
Additionally, closing of the checkpoints caused direct financial losses to those who receive Ukrainian social security payments. Because Ukrainian banks ceased operations in Crimea and parts of Donbas after the occupation and war began in 2014, pensions can only be withdrawn on Ukrainian territory controlled by the government. It is estimated that about 350,000 pensioners cross the line of contact every month to receive their pensions. Being unable to cross the border put those who rely on these payments for their survival at a particularly vulnerable position in terms of their livelihood.
Ukraine now does offer non-financial assistance, albeit in a limited and unstructured manner. This, however, might be legally sufficient in light of the state’s limited resources. For instance, in January 2021, the government of Ukraine adopted a regulation that allows the residents of Crimea and Donbas to take an express-test for COVID-19 for free at a checkpoint, and if they test negative for the coronavirus, they can cross into government-controlled areas. As of early March 2021, such testing is done at one of seven checkpoints in Donbas and two of three checkpoints in Crimea. (The Donbas checkpoint did not have enough test kits, even considering that a dramatically lower number of persons crossing the checkpoint – the number in January 2021 fell 98 percent compared with January 2020.)
Those crossing into government-controlled territory through a checkpoint that did not have or ran out of free test kits could pay for their test at a checkpoint and self-isolate for several days once they cross over, until they receive negative results. Self-isolation is monitored through the mobile application “DiyVdoma.” If a person’s mobile phone does not support the application or a person does not have a phone, they must spend 14 days in a state-designated observation facility in government-controlled territory. In the Luhansk region, the observation facility was full in January 2021, meaning that those who could not download the “DiyVdoma” application and could not afford to pay two weeks of rent for self-isolation on their own terms had no place to undergo observation and therefore had no way of leaving the uncontrolled territory. Furthermore, at one point news outlets reported that conditions in two of the Luhansk region’s state observation facilities were so poor that they violated standards for humane treatment, as assessed by human rights activists.
Based on the foregoing, the populations of Crimea and eastern Ukraine appeared to have been caught between the proverbial rock and a hard place during the first months of the pandemic. On the one hand, they suffered from the inadequacies of the de facto authorities in meeting their obligations under IHL. On the other hand, these residents were not necessarily welcomed by their own government, i.e. Ukraine, which also appeared to fail in meeting its obligations under IHRL and IHL.
Ukraine’s practices improved over time, but the review of the measures that are currently in place reveals a mixed account regarding compliance with its obligation in Crimea and eastern Ukraine to ensure that the residents of these territories continue to enjoy their human rights to the maximum extent possible. While Ukraine continues to be vocal about the violations committed by the Crimean and Donbas administrations in the context of COVID-19, and has initiated its own investigations into the most serious violations, the government does not appear to undertake maximum possible measures in providing medical assistance and implementing other healthcare measures for the populations of Crimea and Donbas. Importantly, although the primary responsibility to ensure human rights in these areas lies with the de facto administrations, Ukraine must do much more to discharge its obligation to protect the human rights of its citizens in line with the ECtHR’s guidance (see Ilascu & Others v. Moldova & Russia, para. 336-352).
(This article is without prejudice to the final report that will be produced by Global Rights Compliance in June 2021 as part of the project “International Law and Defining Russia’s Involvement in Crimea and Donbas.” The views expressed here are those of the authors and do not necessarily reflect the views of the Special Tribunal for Lebanon, with which one of the authors is currently affiliated.)
IMAGE: Ukrainian officers of the Joint Centre for Control and Coordination and OSCE employees watch as people walk across a destroyed bridge between the Ukraine-controlled territory and territory held by Russia-backed separatists at a checkpoint near the village of Stanytsia Luhanska, in Luhansk region, eastern Ukraine on Aug. 1, 2019. (Photo by EVGENIYA MAKSYMOVA/AFP via Getty Images)