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DOI: https://doi.org/10.34069/AI/2024.75.03.7
How to Cite:
Nykyforak, V., Maksymiuk, O., Cheban, V., Anatiichuk, V., & Pavliuk, A. (2024). Human rights protection during armed conflicts:
Problem aspects. Amazonia Investiga, 13(75), 80-88. https://doi.org/10.34069/AI/2024.75.03.7
Human rights protection during armed conflicts: Problem aspects
ЗАХИСТ ПРАВ ЛЮДИНИ ПІД ЧАС ЗБРОЙНИХ КОНФЛІКТІВ: ПРОБЛЕМНІ
АСПЕКТИ
Received: January 20, 2024 Accepted: March 15, 2024
Written by:
Volodymyr Nykyforak1
https://orcid.org/0000-0002-1897-495X
Olexandr Maksymiuk2
https://orcid.org/0000-0003-1778-6583
Viktoriia Cheban3
https://orcid.org/0000-0001-9821-5496
Viktoriia Anatiichuk4
https://orcid.org/0000-0002-8036-4351
Anatolii Pavliuk5
https://orcid.org/0009-0006-8166-888X
Abstract
The purpose of the article is a comprehensive
analysis of problematic aspects of legal
responsibility for human rights violations during
armed conflicts. To achieve the goal, the
following methods were used: systematic, logical
and semantic, formal legal, comparative legal,
formal logical, formal dogmatic, analysis. The
article argues the approach according to which
armed conflicts are characterized by a total
violation of rights, among which the following
fundamental rights are the most violated: the
right to life, the right not to be subjected to
torture, inhuman treatment, enforced
disappearance and the right to a trial. It was
concluded that these rights are the "immutable
core of human rights" that cannot be violated, the
characteristic features of which are:
fundamentality, inalienability, inalienability and
objective necessity. The development of
additional regulatory and institutional guarantees
1
PhD in Law, Associate Professor of Civil Law Department, Yuriy Fedkovych Chernivtsi National University, Ukraine. WoS Researcher
ID: D-8525-2016
2
PhD in Law, Associate Professor of Theory of Law and Human Rights Department, Yuriy Fedkovych Chernivtsi National University,
Ukraіne. WoS Researcher ID: KGK-9093-2024
3
PhD іn Law, Assistant of Theory of Law and Human Rights Department, Yuriy Fedkovych Chernivtsi National University, Ukraіne.
WoS Researcher ID: KGL-1983-2024
4
PhD in Law, Assistant of Civil Law Department, Yuriy Fedkovych Chernivtsi National University, Ukraine. WoS Researcher ID:
KGL-0715-2024
5
PhD іn Law, Assistant of Theory of Law and Human Rights Department, Yuriy Fedkovych Chernivtsi National University, Ukraіne.
WoS Researcher ID: KGK-8779-2024
Nykyforak, V., Maksymiuk, O., Cheban, V., Anatiichuk, V., Pavliuk, A. / Volume 13 - Issue 75: 80-88 / March, 2024
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for the protection of these rights and effective
ways to bring perpetrators to criminal and
international responsibility requires coordinated
work of various institutions. Combating and
counteracting human rights violations in time of
armed conflict requires the united efforts of
nations to eradicate aggressive warfare and the
use of weapons.
Keywords: human rights, armed conflict,
"immutable core of rights", protection of human
rights, legal responsibility for human rights
violations.
Introduction
As you know, local and interstate conflicts have
been commonplace throughout the development
of human civilization. Despite the fact that we are
now in the 21st century, these negative
phenomena continue to plague the world. The
most horrific thing is that during such conflicts,
people die, infrastructure is destroyed and the
environment is devastated.
Aggression is always associated with the
violation of human rights. Unfortunately, social
progress and the development of humanistic
ideas did not improve the situation with the
protection of human rights.
Many conflicts of the twentieth and twenty-first
centuries, from World War II to the current wars
in Ukraine and Israel, have exposed the inability
of the developed international human rights
mechanisms and the norms of national legal
systems to prevent human rights violations,
above all, it concerns the right to life, freedom,
physical integrity, judicial protection, torture,
humiliation of honor and dignity, bullying, etc.
occur. And this list can, unfortunately, be
continued. The right of the strong continues to
operate, generating crimes against civilians on a
horrific scale. Therefore, this study is aimed at
improving the mechanisms for the protection of
human rights during armed conflicts.
Based on the goal, the following tasks can be
identified:
analysis of cases of violation of human rights
during armed conflicts, primarily of the
"immutable core of human rights" - the right to
life, not to be subjected to torture, inhumane
treatment, enforced disappearance, to judicial
protection;
researching the problematic aspects of bringing
responsibility for human rights violations within
the framework of international and national
criminal law.
Theoretical framework or literature review
The problems of human rights protection attracted the
attention of ancient Greek philosophers - Alcidamus,
Antiphon, Lycophron, who in their works defended
the equality of all people, claimed that all people have
the same rights, determined by nature. In the era of the
Renaissance and the Enlightenment Bentham,
G. Grotius, T. Jefferson, J. Locke, P. Montesquieu,
J. Rousseau, and B. Spinoza developed the idea of
human rights as a sacred imperative. Hugo Grotius,
Francisco de Vittoria and Thomas Aquinas made a
significant contribution to the development of ideas on
the protection of the population during war.
As for the conceptual foundations of cooperation
between states in the field of international
humanitarian law, this issue has found a special place
in the works of: M. Baimuratov, M. Barnett,
C. O'Brien, M. Buromensky, V. Butkevych,
O. Williams, V. Denisov, M. Clarkson, B. Cornell,
M. Kruger, V. Lysyk, J. Moon, V. Repetsky,
S. Hedberg, etc. Undoubtedly, those main basic
provisions regarding the special protection of children,
women, the elderly, the inviolability of sacred places
and vital infrastructure as the main humane rules
during armed conflict, which are analyzed by the
specified scientists in the context of interstate
cooperation, formed the basis of this study.
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No less important in this context were the studies
conducted by scientists in connection with the current
armed conflicts. In particular, this concerns the
Russian-Ukrainian war, which began in 2014 with
hybrid aggression, and in 2024 transformed into a
traditional form of war. Accordingly, in connection
with the hostilities in Ukraine there have been many
recent scientific works by Ukrainian scholars:
M. Antonovych (2016), who considers the issue of
liability for human rights violations in a hybrid war;
K. Gaidey and E. Hryhorenko (2016), who study the
interconnectedness of the conditions of armed conflict
and human rights; O. Senatorov (2018), who provides
a comprehensive analysis of armed conflicts
themselves, during which human rights are also
affected. However, in the mentioned works of
Ukrainian scientists, the emphasis is on the nature of
modern conflicts and the problem of prosecution for
war crimes, regarding the violations of rights
themselves, it is only noted that they take place during
the war. A. Bilous and A. Pasternak (2016) analyze the
specifics of human rights violations in armed conflict
in more detail.
Despite such scientific works of scholars on this
issue, given the current situation in the world, the
existing armed conflicts in certain regions, which
are often modified and have a hybrid nature,
there is a need for new research that would help
to more thoroughly study the nature of such new
phenomena and the ways of their counteraction
and prevention, especially taking into account the
new trends in prosecution within the framework
of international criminal law.
Methodology
The study of the problems of human rights protection
during armed conflicts, and the resolution of existing
acute and controversial problems in this area with
regard to bringing perpetrators to justice require the
application of an appropriate methodology.
Accordingly, in the course of the scientific research,
the author used a set of general scientific and special
research methods. In particular, a systematic analysis
of the norms of domestic criminal law and
international human rights law in the field of human
rights protection during armed conflicts helped to
identify specific features of basic human rights that
are natural, inalienable and inalienable.
Using the logical-semantic method, the conceptual
apparatus was refined and developed. In particular,
the concept of the "immutable core of human rights"
and its main characteristics were clarified.
The formal legal method was used to analyze the
legal content of international and national legal acts
in the field of human rights protection during armed
conflicts.
The comparative legal method was actively used to
analyze the procedures for bringing perpetrators of
human rights violations during the war to criminal
and international responsibility.
Other methods were also used: formal-logical – for
the study of normative and legal material, in
particular the provisions of the Criminal Code of
Ukraine and the Geneva Conventions and their
protocols. The use of this method made it possible
to reveal the imperfections of the norms of criminal
and international humanitarian law in the field of
human rights protection during war; formal-
dogmatic – for the interpretation of provisions of
domestic criminal legislation, international
agreements, resolutions of international
organizations, decisions of international military
tribunals and courts in order to revise the basic rules
and principles of responsibility for human rights
violations during war. Turning to this method made
it possible to better understand the benefits of
international criminal justice in the context of this
study; analysis - for the study of scientific theories,
approaches of specialists in the field of human
rights protection, which made it possible to
formulate conclusions and recommendations
regarding the improvement of the national and
international rights protection mechanism.
The combination of such methods of legal research
made it possible to implement a systematic,
comprehensive approach to understanding the
problematic aspects that arise when human rights
are violated in conditions of war.
Results and discussion
PROBLEMATIC ASPECTS OF HUMAN
RIGHTS DURING ARMED CONFLICTS.
"THE UNCHANGING CORE OF HUMAN
RIGHTS"
As already emphasized, unfortunately, armed conflicts
have been, are, and probably will be a part of human
existence for some time to come. Among the most
recent ones are the large-scale Russian invasion of
Ukraine in 2022, the conflict in Sudan in 2023, and the
Hamas invasion of Israel in late 2023. In all these
armed conflicts, there are total human rights violations,
especially against civilians. The use of various types of
weapons, the abuse of prisoners and civilians in the
occupied territories, the destruction of vital
infrastructure, and other barbarities that occur during
war are not a complete list of the negative
consequences of armed confrontation. Clearly, these
criminal acts of the military have no justification and
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must be severely punished. First and foremost, this
concerns responsibility for violations of those rights
that can be considered the "unchanging core of human
rights": the right to life, the right not to be subjected to
torture, inhuman treatment, enforced disappearance,
and the right to a trial. Why are these rights so
important and constitute the "immutable core of
human rights"? It should be recognized that all these
rights are inherent in human nature. In particular, it is
inconceivable that a person would not be endowed
with the right to life, which is the fundamental basis for
all other rights. No one has the right to infringe on or
deprive of life. An extension of this right is the right
not to be subjected to torture, cruel and inhuman
treatment or enforced disappearance. Every person is
a free and inviolable person, and therefore should not
be subjected to any physical or psychological
influence if it is contrary to his or her health and mental
state. People cannot be kidnapped, held in a state of
slavery or restricted in their freedom. And, of course,
in case of violation of any rights, a person has the right
to their protection. Given the significance, importance,
and objective conditionality of such rights, it can be
argued that these rights are the core of the human rights
system and should be protected to the maximum
extent possible. A modern person cannot exist without
such rights. Given this nature of these rights, it can be
argued that the main characteristics of such rights are:
fundamental, inalienable, inalienable and objective
necessity.
What are the ways to protect such rights? First of all, it
should be noted that such rights are extremely difficult
to ensure during wartime. This also applies to their
protection. At the same time, victims of violations
should be aware that they can seek protection of their
rights from both national and international institutions.
It is known that such mechanisms in both cases
include normative and institutional guarantees. In
general, normative guarantees are related to the
standards enshrined in international humanitarian law.
They are identical at both the national and international
levels. After all, almost all democratic states have now
implemented most of the humanitarian law
conventions into national law. For example, (Code
No. 2341-III, 2001), Art. 438, contains a number of
articles that provide for criminal liability for ill-
treatment of prisoners of war or civilians, expulsion of
civilians for forced labor, looting of national property
in the occupied territory, use of means of warfare
prohibited by international law, use of weapons of
mass destruction, other violations of the laws and
customs of war aimed at mass murder, torture, rape,
restriction of liberty, etc. Similar provisions are
contained in the criminal laws of other countries.
At the same time, the protection of rights in the context
of armed conflicts raises many questions, and quite
often it is difficult or impossible to resolve them
through national jurisdiction. That is why international
mechanisms for the protection of rights are used.
International law also has normative and institutional
guarantees. However, before applying for protection,
it is necessary to understand the following questions:
what is the nature of the armed conflict - international
or non-international and who are the parties to the
confrontation (certain groups, organizations or states).
Answers to such questions will allow us to correctly
determine which mechanisms will be more effective
and adequate in a given situation. For example, in the
case of a non-international armed conflict, it is obvious
that the first step is to turn to the domestic justice
system. In the case of interstate conflicts, it will be
more effective to apply to international judicial
institutions. In this case, the circle of subjects of
responsibility is expanded at the expense of states.
There is also another important point in the framework
of international criminal justice: in the case of
prosecution of the top leadership of the state, their
immunities will not be taken into account, which will
contribute to a faster procedure and the inability of the
perpetrators to avoid responsibility. In this aspect,
prosecution for human rights violations during the war
in international law looks more effective and complete
than it does within the framework of national
jurisdiction. However, both in the first case and the
second, there are many problems that need to be
addressed in order to maximize the principle of
inevitability of criminal punishment for human rights
violations committed during armed conflict and
restore justice. Therefore, we propose to focus on
certain aspects of the protection of rights included in
the "immutable core of human rights".
Protection of the right to life during armed conflict
The right to life is now enshrined in many universal
and regional international acts and in the constitutions
of foreign countries. However, despite this, it is
extremely difficult to save a person's life during armed
conflicts. After all, any armed conflict is a threat and
danger to life. The use of various means of warfare,
their constant updating due to the intensive
development of science and technology, and the
increase in military capabilities in general, in practice,
make it increasingly difficult to ensure this right. In
general, the concepts of "war" and "right to life" are
mutually exclusive. According to the laws and
customs of war, a combatant of one belligerent party
has the right to kill a combatant of the enemy party. In
fact, on the one hand, everything in war is contrary to
the concept of humanity, and on the other hand,
everything calls for the preservation of humanity, and
therefore the task of the law of war is, first of all, to
reconcile these extremes.
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It seems extremely difficult to guarantee or ensure the
right to life in the context of the use of various types of
weapons. In such circumstances, the rules of
international humanitarian law (IHL) apply, some of
which are aimed at ensuring the right to life. It is
important to understand that IHL rules designed to
protect human life adapt this protection to the special
conditions and circumstances of war. The rules of
treatment of the civilian population, which cannot be
the object of attack, physical destruction, murder is
prohibited, and provisions are made for relief
operations and funds necessary for the survival of the
civilian population (United Nations, 1977a), articles
67-71. It is prohibited to destroy objects that are
essential for the survival of the civilian population
(United Nations, 1977a), article 54, (United Nations,
1977b), article 14.
A fairly progressive provision is provided for in
Article 101 of the United Nations Refugee Agency
(1949) - the death penalty may be carried out only after
6 months of the sentence. However, in terms of
protection, perhaps, prisoners of war are the most
vulnerable, from ancient times to the present, and they
have always been subject to the most brutal reprisals
(Repetskyi & Lysyk, 2007). For example, during
World War II, Soviet prisoners of war were subjected
to torture, torture, and executions (Mazurok, 2008).
Despite such unfortunate historical examples, we still
believe that the conventions that humanity has
developed (and will develop) are an important step in
establishing humane guidelines for the treatment of
prisoners of war. In general, the dynamics of
international law are positive. The human-centered
movement proclaimed in the last century is gaining
momentum. The human being is recognized as the
greatest social value. States are obliged to serve their
people and provide adequate protection. The
international community is not standing aside either. A
citizen can now complain against the state. Relevant
international mechanisms have been created for this
purpose, and accordingly, a large number of
conventions on the protection of human rights have
been adopted, some of which contain special
provisions that create essential conditions for the
protection of the human right to life. In particular,
(Council of Europe, 1950) article 2, provides: "No one
shall be deprived of his life intentionally except in
pursuance of a judgment rendered after he has been
convicted of a crime for which such punishment is
prescribed by law."
Instead, there are no norms aimed at protecting the
lives of combatants involved in hostilities. However,
according to Doswald-Beck, L. & Vite, S (1993),
there are certain rules that prohibit the use of weapons
that cause excessive damage, which leads to a
reduction in the loss of life of military personnel, so it
is probably incorrect to say that IHL does not contain
any rules on this issue.
Prohibition of torture and inhuman treatment
during armed conflicts
Along with the right to life, the so-called "immutable
core of human rights" includes the prohibition of
torture and inhumane treatment, which, above all,
degrades human honor and dignity. This right is
enshrined in a number of universal (United Nations,
1966) article 7 and regional international acts (Council
of Europe, 1950) article 3, in the field of human rights
protection, as well as in the norms of IHL. It is
important to understand that the term "torture" is a
more specific concept than "torture". Torture in most
cases is the use of physical violence against a person,
which is associated with the infliction of physical
suffering in general. Torture should be understood as
an act that inflicts severe pain or suffering (may be
both physical and mental) on a person in order to
obtain a confession or information from him or her or
a third party, or to bring that person or a third party to
justice, or to intimidate or discriminate against that
person (United Nations, 1984), articles 1-3.
The use of torture and inhumane treatment against
human beings in general are serious violations for
which the perpetrators must be held accountable under
national criminal law. To this end, participating States
should implement the necessary provisions in their
national legislation and provide for serious sanctions
for these war crimes. The legislation of a number of
states, for example, Belgium, Canada, Denmark,
Finland, Norway, Spain, Sweden and Finland,
provides for the suppression of acts that qualify as
serious violations of the four Geneva Conventions and
Additional Protocol I, regardless of whether they are
committed during international or internal armed
conflict.
Regarding the issue of stopping such violations, it
should be noted that the International Criminal
Tribunal for Rwanda (Article 4, paragraphs A and E)
and the Special Court for Sierra Leone (Article 3,
paragraphs A and E) have provisions in their statutes
for considering cases related to serious violations of
humanitarian law committed during non-international
armed conflict. Similar provisions are contained in the
Rome Statute of the International Criminal Court
(International Criminal Court, 2021), article 7.
The European Court of Human Rights is now actively
involved in the implementation of international norms
prohibiting torture and ill-treatment, which in its
judgments states that inhuman treatment occurs when
it causes severe physical and mental suffering that can
lead to acute mental disorders, and inhuman
punishment is a kind of violence that causes a special
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level of suffering. Degrading treatment is behavior that
causes feelings of fear, depression or inferiority, which
can not only offend or humiliate a person, but also
break down their physical or moral resistance. As for
punishment, it must be different from the usual nature
of humiliation that is inherent in every punishment.
This feature of punishment is well demonstrated by the
case of the punishment of a boy (15 years old) in the
case of Tyrer v. United Kingdom. For unlawfully
assaulting another boy, three police officers forced the
child to take off his pants to receive a caning. This
happened in the presence of police officers and
bystanders (Van Buren, 2006). The court, having
examined all the circumstances of the case, concluded
that the boy was in a state of humiliation both in
relation to other strangers and in his own eyes, which,
given the child's age, could affect his mental health,
and therefore the court recognized such punishment as
degrading to the child's honor and dignity.
Protection from enforced disappearances
Enforced disappearances are a violation of
international human rights law, and in times of war,
they are also a violation of international humanitarian
law. Enforced disappearances are tantamount to
erasing the very fact of human existence.
Disappearances also have profound and long-term
psychological consequences for their families. The
prohibition of enforced disappearances, like any other
rule of humanitarian law, does not tolerate exceptions.
No war, no emergency, no threat to national security
can justify enforced disappearances.
The European Court of Human Rights has developed
extensive practice in the so-called "Chechen cases".
Thus, according to the ECHR's decision in the cases of
the disappearance of Aslanbek Khamidov and the
murder of Kazbek Taisumov in 2000 and 2002, the
Russian Federation was obliged to pay compensation
to the plaintiffs in the amount of 104,000 euros. In
particular, Khamidov's relatives told the ECtHR that
they had seen him for the last time in October 2000,
when armed men in camouflage took him out of the
house to check his documents. The victims in the
second case said that their relative Taisumov, his wife
and their eldest daughter were killed on September 7,
2002, during an artillery shelling. The court ruled that
Russia had violated a number of articles of the
Convention for the Protection of Human Rights and
Fundamental Freedoms and ordered Russia to pay
compensation to the applicants. An important step in
combating and countering enforced disappearances
was the adoption by the UN General Assembly on
December 20, 2006 of the United Nations (2006)
Articles 1-7.
Protection of the right to a trial
As is well known, for more effective protection of
human rights under any conditions or circumstances,
judicial guarantees must be provided and guaranteed.
And although they are not included in the so-called
"immutable core of human rights" in most
international instruments, they cannot be deviated
from. The situation is particularly complicated when it
comes to the observance of such guarantees in the
context of military operations.
The United Nations Refugee Agency (1949) Article 3,
and the Additional Protocol to the Geneva
Conventions, relating to the Protection of Victims of
International Armed Conflicts (Protocol I) Article 75,
(United Nations, 1977a) recognize most of the
guarantees of due process of law for persons accused
of committing a criminal offense during armed
conflict. Moreover, derogation from such guarantees
is prohibited. Among such guarantees are the
following: the right to a public trial; the avoidance of
any delay; the principle of equality and
competitiveness in the presentation and examination
of witnesses' testimony. These guarantees are
universally recognized. It should also be considered
positive that these guarantees are provided, firstly, for
both international and non-international armed
conflicts, and, secondly, for certain cases and
situations concerning certain categories of persons
(prisoners of war, interned persons, women, children)
additional guarantees are provided.
In accordance with the provisions of international
instruments, the right to a fair trial is enshrined in a
number of instructions of the armed forces of foreign
countries. The refusal to grant such a right in the
special conditions of armed conflict or its restriction
under the criminal law of a number of countries is
grounds for criminal liability. In addition, this right is
guaranteed by the statutes of international judicial
institutions, in particular, the statutes of the Tribunals
for the former Yugoslavia and Rwanda, the statute of
the Special Court for Sierra Leone, and the ICC statute.
It is noteworthy that this practice is supported by a
number of regional human rights bodies.
In the event of an armed conflict of an international
nature, serious violations of international humanitarian
law are: intentional deprivation of a prisoner of war or
a civilian under protection of the right to an impartial
and normal trial as provided for by the relevant
Convention (Article 130 of Geneva Convention III,
Art. 147 of Geneva Convention IV); intentional
deprivation of a person protected by the Geneva
Conventions or the Protocol Additional to the Geneva
Conventions and Relating to the Protection of Victims
of International Armed Conflicts of the right to an
impartial and normal trial in violation of the
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Conventions or the Protocol (Article 85(4)(e),
Additional Protocol I).
LIABILITY FOR HUMAN RIGHTS
VIOLATIONS UNDER NATIONAL
CRIMINAL LAW: MAIN ISSUES
As aptly emphasized in the legal literature, "Human
Rights do not lose their relevance during war"
(Kuchyk et al., 2023), but it is extremely difficult to
ensure their protection and prosecution, as the first
problem is the loss of evidence or improper collection
and processing of evidence.
Equally problematic is the protection and, accordingly,
prosecution when human rights violations occur in the
occupied territories, where the occupying authorities
not only ignore human rights violations but commit
them themselves. According to the testimonies of
citizens of various regions who were in the zone of
armed conflicts, during the occupation there were
mass shootings of the civilian population without trial
and investigation, people were tortured in basements,
girls and women were abused and raped, many
citizens disappeared. Undoubtedly, in such
circumstances, going to court and having a fair trial
was out of the question. After the liberation of such
territories, as a rule, law enforcement officers faced
numerous problems. Most troublingly, most of the
evidence was destroyed. It is obvious that, under any
circumstances, it significantly complicates the
investigation of criminal cases of human rights
violations during the war and, accordingly, bringing
the guilty parties to justice. Such problems slow
down the process of bringing to justice military
personnel who were captured, or even those who
will be prosecuted in the future after the war
under open criminal proceedings. Similar
problems are always inherent during war for any
state where an armed conflict took place.
Thus, given these difficulties, it can be argued
that the implementation of the principle of
inevitability of criminal punishment for a crime
committed for human rights violations that
occurred during an armed conflict causes many
difficulties. Therefore, it forces the victim state
to resort to other means and instruments of
protection, including international ones.
RESPONSIBILITY FOR HUMAN RIGHTS
VIOLATIONS UNDER INTERNATIONAL
LAW: THE MAIN PROBLEMS
It would seem that international law, which
provides for a peremptory norm prohibiting
aggressive war, instead of standing for the
protection of human rights, should be more
effective. However, there are no fewer problems
here.
The first problem is the length of time it takes to
process cases. Wherever a victim state applies, it has
to wait for a decision for a long time. Secondly,
political ambitions and pragmatic interests of certain
subjects of international law sometimes prevent the
reflection of real threats and challenges to human
rights in wartime, which distorts the picture of real
human rights violations. Thirdly, there is no certainty
that the decisions of international judicial institutions
will be enforced by the violator. In particular, if we
take as an example the decision of the International
Court of Justice of the United Nations, then the
outdated mechanism of enforcement of the decision
through the procedures of the UN Security Council
may become an obstacle in this case. If the state is
supposed to be a permanent member of the Security
Council, then it is clear that all initiatives of this body
will be blocked due to the applicable right of veto.
However, there are also some positive aspects when
it comes to liability under international law. First of
all, the specifics of international law should be taken
into account: while under national criminal law, the
subject of a crime will be a sane individual who has
reached the age of criminal responsibility, in
international law, the circle of subjects of
responsibility, in addition to individuals, includes the
state, which will materially compensate for the
damage caused by the outbreak of an armed conflict.
Another point should be understood here:
responsibility for human rights violations during the
war will be borne by the state within the framework
of the institution of international legal responsibility,
and by individuals within the framework of
international criminal and humanitarian law.
Another advantage of liability under international
law is that in the case of prosecution of senior
officials, who usually enjoy immunities, the latter
will not be taken into account. In national law, on the
contrary, immunities will exempt from liability. For
example, in order to bring a president to justice, his
immunity must be removed by impeachment and
then tried. In this regard, international criminal law
looks more effective and progressive than national
criminal law.
Taking into account such positive aspects of the
modern international system of human rights
protection, we can conclude that one of the modern
trends in the field of punishment for international
crimes, the direct object of which is international
order, human security and human rights, is the
development and improvement of the mechanisms
of international criminal of justice.
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/ March 2024
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Despite the numerous difficulties in initiating and
considering such cases at the International Criminal
Court (long duration, difficulty in obtaining and
securing evidence, problems in presenting suspicion,
issuing arrest warrants, arrest and delivery of
suspects, etc.), the process of signing and ratification
by states of the Rome Statute of the Statute of the
International Criminal Court is moving forward.
There is a growing understanding that it is precisely
such bodies of justice that are more adequate in
bringing to justice the highest bodies of guilty states
compared to national criminal justice. Moreover, the
prosecution of the top leadership of the state for
international crimes serves as an impetus for more
fruitful work by law enforcement agencies within the
framework of national jurisdictions in relation to the
executors of the orders of such leadership.
And I would also like to emphasize another aspect:
why is it necessary to bring perpetrators to justice for
total violations of human rights during the war? It is
extremely important to maximize the principle of
inevitability of punishment for human rights
violations during the war, as people, both civilians
and military, are in a difficult psychological state and
feel justice very keenly and unconditionally want to
find it in justice. Many studies have noted that people
who have participated in hostilities tend to be in a bad
mood, irritability, apathy, depression, anxiety
(Krasnodemska et al., 2023) and often feel guilty for
their dead comrades. Therefore, punishment of the
perpetrators will have not only legal consequences,
but also other social effects on the society that
suffered rights violations during the war, which will
help to gradually restore the psychological climate in
such an environment.
Conclusions
On the basis of the conducted research, the following
conclusions can be drawn:
in view of the current situation in the world, the issues
of protection of human rights during armed conflicts
are extremely acute and urgent. The recent armed
conflicts in Ukraine and Israel demonstrate that
violations of the right to life, the prohibition of torture
and inhuman treatment, the right not to be subjected to
enforced disappearance and the right to a trial, which
constitute the "immutable core of human rights"
remain unchanged;
the specificity of the "immutable core of human rights"
is that they should not be limited under any conditions
and circumstances, and the guarantees of such rights
in cases of armed conflicts should be especially
carefully prescribed. However, based on the existing
practice, it becomes obvious that violations of these
rights have occurred and continue to occur, which
forces the affected citizens or their relatives to apply
for the protection of their rights not only to national
courts, but also to international ones, primarily to the
European Court of Human Rights. Undoubtedly, it
must be taken into account that any conflict is already
a threat, a danger to human rights, first of all, the right
to life, and therefore the first thing that needs to be
done in this case is the consolidation of efforts to create
a reliable and effective mechanism for countering the
emergence of armed conflicts confrontations in
international practice, namely: the establishment of a
strict sanctions regime against the aggressor state with
the aim of its total isolation in international relations -
exclusion from the composition of international
organizations, bodies and institutions, termination of
all contractual relations, prohibition of free movement
of citizens of the offending state around the world,
prosecution of the guilty;
development of effective regulatory and institutional
guarantees for the protection of human rights that are
violated in conditions of war, as well as an effective
prosecution mechanism, both at the level of the
national criminal law of foreign countries and on the
basis of the norms of international criminal and
humanitarian law at the international level, requires
coordinated work of various institutions, organizations
and bodies of all nations and peoples without
exception. The UN is currently acting as such a
universal mechanism, the main purpose of which is to
ensure international peace and security. It is under its
auspices that the most fruitful and effective
cooperation of states in the fight against and
countering the violation of human rights, the
eradication of aggressive war, and the use of weapons
in the resolution of conflicts should take place. In this
aspect, the UN should strengthen its activities
regarding the introduction of a total ban on nuclear
weapons. We also draw attention to the fact that in
view of the consideration of the situation regarding the
Russian-Ukrainian war within the framework of the
UN Security Council and the rejection of any
resolution on this issue due to the exercise of the right
of "veto" by the Russian representative, there is a need
to revise the UN Charter. In particular, this concerns
primarily the activities of the UN Security Council:
exclusion from the UN Security Council of the
aggressor state; deprivation of the right to vote of a
member of the Security Council if such a member is a
party to the situation that became the subject of
consideration at a meeting of the UN Security Council.
Finally, we emphasize that another important point for
the cooperation of states in the field of human rights
protection at the international level is to encourage
states to join the Rome Statute of the International
Criminal Court.
Therefore, we have high hopes that joint efforts with
the combined use of such means of countering
aggression can lead to positive results, which will
make it impossible to violate human rights.
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