UN's Report on the human rights situation in Ukraine: why is it important?

By Kateryna Dronova (Berkeley, CA)

On April 15, 2014 the UN Office of the High Commissioner for Human Rights (OHCHR) released “Report on the human rights situation in Ukraine”. This document provides a general overview on the problematic issues related to human rights protection is Ukraine and specifically highlights abuses related to Maidan protests and human rights challenges in Crimea. Russian Foreign Ministry Spokesman Alexander Lukashevich hastened to comment that this document “has one-sided, politicized and biased character and give no picture of the real situation in that country” and “was fabricated to fit prearranged conclusions to arrived at which there was no need to visit Ukraine.” Two days later France’s ambassador to the United Nations, Gerard Araud compared Russian behavior towards Ukraine to “fire-setting firefighter.” To clarify the validity of such claims this post suggests taking a closer look at the Report’s content and makes some conclusions on the nature of the document.

The table below contains the overview of Report’s each section highlighting the most important issues.

 

Executive Summary, Introduction	The Report names deep causes of the current political crisis. It briefly refers to the history of Maidan movement, which became a response to corruption and increasing economic inequalities, lack of independence of the judiciary and accountability for recent and past human rights violations. It proceeds with the dispute on the minority rights and the Law on the Principles of State Language Policy (see previous discussion), very shortly addresses the lustration policy. In respect of the latter Report notes that “[i]t is crucial to ensure that human rights violations are not dealt with any form of human rights violations.” (para 5) - the leitmotif of the whole document.  Crimean crisis is addressed separately: while there’s criticism on the doubtful validity of Crimean referendum in the presence of Russian militia, the focus is on the “ambiguous” condition of Crimean Tatars minority. The clashes in the Eastern Ukraine are cursorily mentioned in line with the problem of “deepening divide in the country”. The Report states that the current situation may be remedied only in the long-term with implementation of legislative/institutional reforms package and emphasizes the importance of the upcoming 25 May elections. The document sets out a framework for UN Human Rights Monitoring Mission in Ukraine and names applicable universal and regional human rights instruments. Notably, it is specifically mentioned that Ukraine did not derogate from the ICCPR and its provisions are “fully applicable.”
Underlying Human Rights Violations	1. Corruption and violations of economic and social rights Although the “patchy implementation of international commitments” to combat corruption were undertaken by Ukrainian government within the framework of the National Anti-Corruption Strategy for 2012 – 2015, there is currently no comprehensive anti-corruption law in Ukraine. In 2013 Transparency International ranked Ukraine 144th out of 176 countries. Health service allocations constitute only 3.5% of the country’s GDP (7% is the minimum recommended by the WHO) (para 39). According to the findings of the Committee on Economic, Social and Cultural Rights, more than a quarter of the population lives below the official poverty line (para 41). 2. Lack of accountability for human rights violations The Report explicitly states that Ukraine has “a culture of effective impunity […] for the high level of criminal misconduct” and names several systemic deficiencies, including the lack of independence (the possibility for undue influence on the decision-making of judges during their probation period, considerable discretion to the Prosecutor throughout criminal proceedings), excessive use and length of pre-trial detention, numerous cases of torture and ill-treatment. Though Report admits slight improvement in criminal justice facilitated by adoption of the 2012 Code of Criminal Procedure, it also makes stress on the selective nature of Code’s application.
Human Rights Violations Related To The Maidan Protests	Report acknowledges the failure to respect the right to freedom of assembly through imposition of illegitimate bans or restrictions of public gathering via court decisions, as well as decisions of executive authorities. The other concern is expressed in relation to excessive use of force, killings and mass disappearances (121 person died in the result of clashes including 101 Maidan protesters, 17 officers of the internal affairs/police), numerous accounts of torture and ill-treatment of protesters. It is important that the document is not prejudicial: while strongly condemning actions of governmental agents (members of special riot police units “Berkut”, snipers and law enforcement officers attacking demonstrators and medical personnel), it also addresses the violations on the side of protesters, e.g. intimidation and physical assault against the prosecutor of Rivne district by the Right Sector activist Olexander Muzychko. The final problematic issue relates to the ongoing attempt to hold human rights abusers responsible and challenges in conduct of effective national investigation.
Current Overall Human Rights Challenge	Protection of minority rights While proceeding once again on the issue of language minorities rights (Russian in particular), the Report takes different angle on the dispute: it reverses question of Russian language minority protection into a more important issue of political (mis)representation:”[t]he composition of the current Cabinet is perceived by some people in eastern and southern Ukraine as not being inclusive, as most of its members come from western Ukraine”. The right to freedom, peaceful assembly and the right to information The report covers March 10 anti-Maidan protests in Donetsk and Kharkiv, as well as subsequent arrests of Mr. Dobkin and Mr. Kernes. Interestingly, once again the document is critical about new Ukrainian government in the remarks concerning pro-Maidan politicians exerting pressure on the media, specifically incident involving Igor Myroshnichenko and other Svoboda party members in attempt to force the Head of the National Television Company of Ukraine to sign a resignation letter. However, OHCHR abstained from providing its immediate evaluation of Kyiv District Administrative Court’s decision to suspend broadcasting several Russian TV channels due to intense anti-Ukrainian propaganda and reserved its right to collect more information necessary for accurate assessment of the restriction imposed on the freedom of speech. Incitement to hatred, discrimination or violence This is, probably, the most exiting part of the Report (highly recommended   for reading) addressing popular claims about attacks and harassment of Russian-speaking minority representatives. While stating that “these violations are neither widespread nor systemic” OHCHR addressed three instances of reported abuses, including the alleged post made by Dmytro Yarosh (leader of the Right Sector) in Russian social network urging Chechen people to “to step up the fight” against Russian authorities (this allegation was publicly refuted by Mr Yarosh). One should note that a separate paragraph of the document provides for characteristic of the right-wing paramilitary group Right Sector, concluding that “the fear against [this organization] is disproportionate, although parallels have been drawn by some between this group and past right wing nationalistic movements at the time of the Second World War.” This section also contains information about few attacks against members of Jewish and Roma minorities. The last sub-section of this chapter concerns the lustration policy and adds to our preceding discussion the requirement imposing the burden of proof on the reviewing body.
Specific Human Rights Challenge In Crimea	“The political aspects of recent developments in Crimea are beyond the scope of the assessment of this report […] however, these developments have a direct impact on the enjoyment of human rights by all people in Crimea” - provides the Report. The first challenge named in the document is related to the referendum of March 16: the limitations on the freedom to debate public affairs trough abduction, arbitrary detention and violence against peaceful demonstrators, journalists. The other challenge is posed by the presence of paramilitary and “self-defense” groups as well as soldiers without insignia (believed to be Russian and allegedly involved in various human rights violations), and simultaneous need to ensure safety of Ukrainian military personnel remaining in Crimea. However, the major task is protection of the national minorities:”[i]t is widely assessed that Russian-speakers have not been subject to threats in Crimea. Concerns regarding discrimination and violence were expressed by some ethnic Ukrainians members of minorities, and especially Tatars, as indigenous peoples.” It is reported that the number of internally displaced persons is significantly increasing since Crimean Tatars and ethnic Ukrainians left Crimea due to the safety concerns. The introduction of Russian citizenship for Crimean residents made current situation even more complex for those who want to maintain Ukrainian citizenship: it makes difficult to obtain legal residency and work permit, to maintain land and property ownership, wages and pensions, health service, labor rights, education and access to justice.
Conclusions And Recommendations	The last chapter is divided in two parts: recommendations for immediate action and long-term recommendations. The fist part is set separately for the government of Ukraine and Crimean authorities and takes three major directions: (1) to combat impunity for the past and ongoing human rights abuses, (2) ensure equal political participation and rights of minorities and (3) protect the freedom of assembly and the freedom of speech. The second part urges Ukraine to ratify a number of international human rights instruments and implement recommendations of several UN bodies, as well as develop legislative, policy and economic reforms.

Conclusions
The OHCHR Report may be taken as a document of political nature and low efficiency, but it makes several invaluable contributions to maintaining fair and accurate international dispute. Although, the Report recognizes the necessity to protect minorities in Ukraine, it evidently rebuts Valdmir Putin’s argument that the Russians in Ukraine have been subjected to systematic persecution. This argument was proficiently referred to by Samantha Power, U.S. Permanent Representative to the United Nations, in her remarks at a Security Council Session on Ukraine on April 16, 2014. Importantly, the document makes the reverse in rhetoric on the issue of language minorities protection to the problem of political misrepresentation (basically, it does something that neither of Ukrainian politicians succeeded to do for years). The problem of equal political engagement becomes even more important in the light of the recent Russian ban prohibiting Mustafa Dzhemilev, the former Chairman of the Mejlis of the Crimean Tatar People, to enter the territory of Crimea. This document also contributes to the discussion on applicable legal standards and the nature of state’s obligation during internal disturbances and foreign occupation: since Ukraine did not enact ICCPR derogation clause, to what extent should international human rights provisions be applied “fully” (or, alternatively, reduced to humanitarian law requirements)? And finally, the Report demonstrates the interest and concern of the western community towards newly developing nationalistic movements in Ukraine, Right Sector group in particular. Thus, this document makes significant attempt to preclude further politically manipulations, while remaining objective and unbiased.