HUMAN RIGHTS TO PROTECTION IN MILITARY CONFLICT AND MARTIAL STATE: KEY ISSUES
DOI:
https://doi.org/10.32782/ehrlichsjournal-2023-7.04Keywords:
human rights and civil freedoms, military conflict, martial law, violation of human rights and freedoms, human right to judicial protection, administration of justiceAbstract
This article analyzes the issue of the human right to protection in the context of military conflict and martial law. It is established that human rights and the right to their protection are regulated by both national and international law, the purpose of which is to systematically control the implementation of obligations to comply with international universal principles and international legal norms, and to apply legal enforcement measures for their violation. It is emphasized that in the context of military conflict and under martial law, international legal protection of human rights should be considered as a set of norms defined by international legal instruments and national legislation aimed at protecting universally recognized civil, political, economic, social, cultural, and other human rights and freedoms from unlawful infringements. The author notes that human rights restrictions in the context of military conflict and martial law should be differentiated from human rights violations since they are two different political and legal categories by nature and function. Restriction of human rights occurs when, in accordance with the goals defined by law, the State or its authorized entities restrict certain potential human capabilities in the context of the legal field – ensuring public security, protection of public order, health care, protection of rights and freedoms of other persons or interests of society as a whole. Instead, violations of human rights and freedoms are a priori beyond the legal framework. It is emphasized that restriction of fundamental human rights and freedoms is possible only as an exclusively legal, temporary, nondiscriminatory phenomenon and consists in reducing the scope and content of human rights only in general in the interests of the security of society and the State. It is emphasized that the problem of human rights protection in the context of military conflict and under martial law in Ukraine is also due to the fact that because of the temporary occupation of some Ukrainian territories and active hostilities, the courts in some regions ceased to function, and, as a result, the protection of rights was not carried out by the courts, so it to ensure the normal functioning of the judiciary that the current legislation was amended.
References
Batiuk O.V. Observance of human rights under martial law: international legal protection. Human rights in the period of armed conflicts: a collection of materials of the International scientific and practical Internet conference dedicated to the 25th anniversary of the National University “Odesa Law Academy” (Odesa, November 18, 2022). Odesa, 2022. P. 339–342. Retrieved from: https://web.ccu.gov.ua/library/prava-lyudyny-v-period-zbroynyh-konfliktiv
Burdyga I. UN: violations of human rights in the war in Ukraine are shocking. 2022. Retrieved from: https://www.dw.com/uk/oon-viina-v-ukraini-pryzvela-doshokuiuchykh-porushen-prav-liudyny/a-62302456
European Convention on Human Rights and Fundamental Freedoms of November 4, 1950. Retrieved from: https://zakon.rada.gov.ua/laws/show/995_004#Text
Universal Declaration of Human Rights dated 12/10/1948. Adopted and proclaimed by resolution 217 A (III) of the UN General Assembly of December 10, 1948. Retrieved from: https://zakon.rada.gov.ua/laws/show/995_015#Text
Zurnadzhi E.E. Protection of human rights by state authorities under martial law. Human rights in the period of armed conflicts: a collection of materials of the International scientific and practical conference dedicated to the 25th anniversary of the National University “Odesa Law Academy” (Odesa, November 18, 2022): in 2 volumes. Odesa, 2022. P. 223–226.
Constitution of Ukraine: adopted at the fifth session of the Verkhovna Rada of Ukraine. 06/28/1996. Retrieved from: https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text
Lazar U. Protection of human and citizen rights and freedoms by the Court under martial law. Human rights in the period of armed conflicts: a collection of materials of the International scientific and practical Internet conference dedicated to the 25th anniversary of the National University “Odesa Law Academy” (Odesa, November 18, 2022). Odesa. 2022. P. 163–166. Retrieved from: https://web.ccu.gov.ua/library/prava-lyudyny-v-period-zbroynyh-konfliktiv
Markovych H. Human rights and freedoms under martial law: focus of priorities. Analytical and comparative jurisprudence. 2023. No. 4. P. 95–99. Retrieved from: https://www.researchgate.net/publication/373965271_Human_ rights_and_freedoms_under_martial_law_focus_of_priorities
Nikolenko A. Judiciary during the war: how the state of war affected the consideration of court cases. Retrieved from: https://golaw.ua/ua/insights/publication/sudochinstvo-pid-chas-vijni-yak-voyennij-stan-vplinuv-na-rozglyadsudovih-sprav/
Patelina A.A. Judicial practice of human rights protection under martial law. Human rights in the period of armed conflicts: a collection of materials of the International scientific and practical conference dedicated to the 25th anniversary of the National University “Odesa Law Academy” (Odesa, November 18, 2022): in 2 volumes. Odesa, 2022. P. 219–222.
On the introduction of martial law in Ukraine: Decree of the President of Ukraine dated February 24, 2022 No. 64/2022. Retrieved from: https://zakon.rada.gov.ua/laws/show/64/2022/ed20220224#Text
On amending part seven of Article 147 of the Law of Ukraine “On the Judiciary and the Status of Judges”regarding the determination of territorial jurisdiction of court cases: Law of Ukraine dated March 9, 2022 No. 2112-IX. Retrieved from: https://zakon.rada.gov.ua/laws/show/2112-20#Text
On the legal regime of martial law: Law of Ukraine dated May 12, 2015. No. 389-VIII. Retrieved from: https://zakon.rada.gov.ua/laws/show/389-19#Text
On the judicial system and the status of judges: Law of Ukraine dated June 2, 2016. No. 1402-VIII. Retrieved from: https://zakon.rada.gov.ua/laws/show/1402-19#Text
Recommendations of the RSU regarding the work of courts in martial law from 05.03.2022. Retrieved from: https://zakon.rada.gov.ua/rada/show/v0023414-22#Text
Chernilevska K. Peculiarities of judicial proceedings under martial law. Retrieved from: https://jurliga.ligazakon.net/news/211140_osoblivost-zdysnennya-sudochinstva-v-umovakh-vonnogo-stanu
Kron Amanda. At the frontlines of implementing the right to a healthy environment: Understanding human rights and environmental due diligence in relation to armed conflicts. IRRC, International Review of the Red Cross June 2022. 2023. No. 919. R. 1623–1645. Retrieved from: https://international-review.icrc.org/
Myrna El Fakhry. The Protection of Human Rights in Armed Conflicts. January 23, 2024. Retrieved from: https://www.aclrc.com/blog/2024/1/23/the-protection-of-human-rights-in-armed-conflicts
Panasiuk, V., Poliuk, Y., But, I., Zhyvotovska, I., & Synytsyn, P. Constitutional human rights under martial law: legal realities. Amazonia Investiga. 2022. No. 11(54), P. 76–83. https://doi.org/10.34069/AI/2022.54.06.8
The Office of the High Commissioner for Human Rights is the leading United Nations. Protection of human rights during conflict situations. Retrieved from: https://www.ohchr.org/en/protecting-human-rights-conflict-situations
Time of war. URL: https://www.cilvektiesibugids.lv/en/themes/human-rights-restrictions/derogation-in-timesof-emergency/types-of-emergencies/time-of-war (дата звернення: 10.10.2023 р.).
