Eastern Ukraine, OHCHR Report on the Situation Case Study
Order ID 53563633773 Type Essay Writer Level Masters Style APA Sources/References 4 Perfect Number of Pages to Order 5-10 Pages
I. Classification of the Situation and Applicable Law
1. (Para. 3) How would you classify the situation in Eastern Ukraine? If IHL applies, would you consider that there is one conflict or several parallel conflicts to be analysed separately? Based on the information in para. 3, what criteria need to be met in order for the conflict to be governed by IHL of IACs? Are then the Luhansk peoples republic and the Donetsk peoples republic also bound by IHL of IACs? Are they able to comply with those rules? (GC I-IV, Arts 2 and 3; P I, Art. 1; P II, Art. 1)
2. (Paras 7, 20-21, 27, 51, 65, 69, 70 and 72)
a. What legal regimes are applicable to this situation? For each of the legal regimes you list, are they equally binding on all the parties involved in the conflict? What bodies of law does OHCHR invoke in the paragraphs referenced? Is it competent to invoke all these bodies of law? Why/Why not?
b. (Para. 7) The report reads, Government forces and armed groups continue to violate and abuse the rights to life, liberty, security and physical integrity (emphasis added). Why do you think the phrase in italics has been used in this case?
II. Conduct of Hostilities
3. (Paras 18, 23) Does IHL impose any particular obligations on parties engaged in fighting in densely populated areas? If so, what are these? Does IHL prohibit the use of explosive weapons with wide-area effects in densely populated areas? How is the use of such weapons regulated by IHL? Do you think that the way IHL presently regulates this issue is sufficient? (P I, Arts 51(4) – 51 (8) and 58(b); CIHL, Rules 12-24)
4. (Paras 18-20, 22) Does IHL prohibit armed forces or armed groups from stationing themselves in close proximity to villages and towns? Does it prohibit armed forces or armed groups from using civilian property for military purposes? Houses as observation posts? What are the consequences incurred if civilian property is used for military purposes? If a Party chooses to locate military objectives in or near civilian areas, does this liberate its adversary from complying with the principles of precaution and proportionality in targeting those objectives? (P I, Arts 51(7) and (8), 58(b), CIHL, Rule 23)
5. (Para. 21) What does the fact that attacks ceased after armed forces withdrew from the centre of villages indicate about the respect of IHL by the attackers?
6. (Paras 18, 24-27) Is the disruption of critical services as described in these paragraphs a violation of IHL? IHRL? Both? Do the existing rules of IHL extend to cover knock-on consequences (para. 25) or reverberating effects of shelling? What rules of IHL do you think we can use to analyse the legality of the conduct described? (P I, Arts 51(5)(b) and 57(2)(a); CIHL, Rules 14, 15, 17-19)
7. (Para. 27) Please state the IHL rule that is in danger of being violated by shelling in the vicinity of water facilities that store between them almost 350 metric tons of chlorine. Is this rule applicable in NIACs?
III. Deprivation of Liberty
8. (Paras 42, 45 and 47) Does IHL of NIACs authorize detention by armed groups? In the case of crimes committed? For preventive purposes (i.e., administrative detention)? Do you think that detention of persons who have pro-Ukrainian views (para. 45) is in keeping with IHL? How else can an armed group prevent inhabitants of a territory it controls from transmitting information to the government? Is it realistic that IHL or Human Rights do not allow it to prevent such transmission? (GC I-IV, Art. 3; P II, Arts 5 and 6)
9. (Paras 10, 51-53, 64-65)
a. In NIACs, are all parties to the conflict obliged to allow access to persons deprived of their liberty for reasons related to the armed conflict? If so, to whom must such access be granted? In favour of whom must such access be granted? Fighters? Civilians? Both? Would your responses to any of the above questions be different if the situation was an IAC instead of a NIAC? (GC III, Arts 125 and 126; GC IV, Arts 76(6), 116, 142 and 143; P II, Arts 4 and 5; CIHL, Rules 124 and 126)
b.Why does OHCHR insist that access to persons deprived of their liberty should be guaranteed? Why does it insist that visits to such persons be conducted on the basis of international standards (e.g., possibility to conduct confidential interviews, as mentioned in para. 53)? Where do you find those international standards? Can they be found anywhere in IHL? (P II, Arts 4 and 5; GC III, Art. 126; GC IV, Art. 143; CIHL, Rules 124 and 126)
c. Why was OHCHR able to see the detainees of the armed groups in East Ukraine? Do they have a right to a visit? Who has a right to see detainees during an armed conflict according to IHL? (GC III, Art. 126; GC IV, Art. 143; CIHL, Rules 124 and 126)
d. Why was it important to conduct confidential interviews with the detainees?
IV. Judicial Guarantees
10. (Paras. 69 72)
a. Does IHL envisage detention, trial and sentencing of individuals in NIACs? Only by States? Also by armed groups?
b. The OHCHR report mentions courts, judges and prosecutors of the Luhansk peoples republic and the Donetsk peoples republic always between inverted commas. Why? Why do Art. 3 common to GC I-IV and Art. 6 of AP II not put the term court between inverted commas? May an armed group lawfully establish a court under IHL?
c. The OHCHR report is very critical of judicial structures set up by armed groups, noting that these fall foul of IHRL fair trial guarantees and essential safeguards. Do you agree with these criticisms? Are these human rights law standards applicable to armed groups?
d. Based on the wording of Common Article 3, what do you conclude about the ability of armed groups to establish courts? What guarantees must a court fulfill under GC I-IV, Art. 3? Could these conditions be satisfied by a court established by an armed group? What particular requirements would be difficult for courts established by armed groups to fulfill?
e. How are Art. 6 (2) AP IIandArt. 75 AP I different from Common Article 3 as concerns the guarantees a court must fulfill? Do these provisions apply to the situation in Eastern Ukraine?
f. Could a government soldier ever be tried by a court established by an armed group? For the mere fact of having participated in hostilities? For violations of IHL? Does IHL prohibit parties to NIACs from trying members of the adverse armed forces for the mere fact of having participated in hostilities?
g. Bringing enemies to trial presupposes that they have been detained. Are non-State armed groups entitled to detain government soldiers? Does IHL authorize armed groups to detain enemies, or does it simply foresee that such detention will occur when it regulates treatment of detainees? (GC I-IV, Art. 3; P II, Art. 5)
h. (Para. 72) OHCHR mentions it is concerned that sentences imposed by courts of armed groups may amount to the war crime of sentencing without due process. Do you agree? In what ways could this conclusion clash with the obligations upon all parties to NIACs, including non-State parties, to comply with the obligations of Common Article 3?
V. Humanitarian Assistance
11. (Paras 110-114)
a. Do providers of humanitarian aid require permission to deliver their aid? In IACs? In NIACs? In NIACs, do these entities have to ensure the consent of the territorial State or of the rebel group(s) in question? Of both? Only of the belligerent controlling the territory in question? (GC IV, Art. 59; GC I-IV, Art. 3; P II, Art. 18; CIHL, Rule 55)
b. Does an obligation by all parties to a conflict to allow and facilitate rapid and unimpeded passage of humanitarian assistance to civilians in need (para. 114) exist under IHL? What are the international legal repercussions (para. 113) of denying humanitarian access?
c. May the belligerents subject the delivery of assistance to conditions? If so, what are these conditions? What considerations might justify a denial of humanitarian aid? (GC IV, Art. 59; P II, Art. 18; CIHL, Rule 55)
12. (Paras 9, 66-68) Are domestic Ukrainian courts obliged to prosecute IHL violations? (P I, Arts 80(1) and 86(1). See also GC I, Art. 49(2); GC II, Art. 50(2); GC III, Art. 129(2); GC IV, Art. 146(2))
13. (Para. 21) Although the OHCHR report documents many potential violations of international law, this paragraph also lists a few instances where the law was respected. In your opinion, what made the Ukrainian armed forces comply with the requests? Do you believe such examples of respect should be acknowledged and publicized? Why/Why not?
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