Report of the 34th Special Session of the Human Rights Council on the deteriorating human rights situation in Ukraine stemming from the Russian aggression 

by the URG team Blog, Blog, Reportes del Consejo de Derechos Humanos, Uncategorized @lac

On Thursday 12 May 2022, the Human Rights Council convened a Special Session to address ‘the deteriorating human rights situation in Ukraine stemming from the Russian aggression’.

The Special Session was requested via an official letter dated 9 May and signed by H.E. Yevheniia Filipenko, Ambassador and Permanent Representative of Ukraine to the United Nations in Geneva. This letter, addressed to H.E. Mr Federico Villegas, President of the Human Rights Council, was officially supported by 16 member States and 36 observer States.

In conformity with operative paragraph 10 of the General Assembly resolution 60/251, the Human Rights Council is ‘able to hold Special Sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council’ (i.e. 16 member States or more). Special Sessions of the Council aim to provide a platform for the Council to consider and act on urgent human rights issues of either a country-specific or a thematic nature.

Webcasts of statements delivered during the Session can be found here.

The Council’s action on the human rights situation in Ukraine

From the creation of the Human Rights Council in 2006 to 2022, six resolutions have been adopted by the Council under Agenda Item 10 on ‘cooperation with and assistance to Ukraine in the field of human rights’. The first resolution on Ukraine was adopted at the 26th Regular Session in June 2014 — following the 2014 annexation of Crimea by the Russian Federation and the beginning of the Donbas armed conflict — with the most recent one being adopted at the 47th session in June 2021.

All six resolutions have been tabled by Ukraine itself, and have had very similar vote results with an average of 21 votes in favour, six votes against and 20 abstentions. The 2014 resolution received the most favourable vote result (23-4-19), while the least favourable result was obtained in 2021 (19-8-20). European countries have systematically voted in favour of the resolutions, while States voting against the resolutions have also largely remained the same, i.e. Bolivia (Plurinational State of), Cameroon, China, Cuba, Eritrea, Philippines, and Venezuela (Bolivarian Republic of). African and Middle-Eastern member States have tended to systematically abstain from the vote.

On 14 March 2014, the United Nations Human Rights Monitoring Mission in Ukraine (HRMMU) was deployed by OHCHR as part of the UN Secretary-General’s Human Rights Up Front initiative. HRMMU is responsible for monitoring and reporting on the human rights situation in Ukraine, with a particular focus on the conflict area of eastern Ukraine and the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, occupied by the Russian Federation. The Mission has documented over 600 cases of torture and ill-treatment of conflict-related detainees.

As of May 2022, the Mission has released 33 periodic reports, four updates and eight thematic reports that are publicly available on the OHCHR website. In HRMMU’s most recent update, covering the period 24 February-26 March 2022, the Mission reported serious violations of international humanitarian law and gross violations of international human rights law stemming from the conflict, emphasising the importance of the principle of distinction. The update further highlights restrictions on fundamental freedoms and civic space, as well as the security risks faced by journalists and media workers in Ukraine. The latest regular report of the HRMNU, which covered the period from 1 November 2019 to 31 October 2021, provides a brief overview of the situation concerning civic space and the situation of human rights defenders in the territory controlled by the Ukrainian Government, the territory controlled by the self-proclaimed ‘Luhansk People’s Republic’ and ‘Donetsk People’s Republic’ and the Autonomous Republic of Crimea and the city of Sevastopol, occupied by the Russian Federation.

The Council and other UN mechanisms’ action on the human rights situation in Ukraine after the Russian aggression

On 25 February, the UNSC met under the Russian Federation’s presidency (which it held for the entire month of February 2022) to discuss and eventually vote on a resolution calling for an end to the Russian Federation’s military offensive. The draft, submitted by Albania and the United States, garnered 11 votes in favour from UNSC member States and the support of 87 UN member States (as of 27 February) but was vetoed by the Russian Federation. The UNSC members, who were favourable to the draft resolution, deplored the Russian Federation’s aggression as being in violation of Article 2.4 of the UN Charter (i.e. the obligation to refrain from the threat or use of force against the territorial integrity or political independence of any State).

The draft resolution, if adopted, would have decided that the Russian Federation should immediately cease its use of force against Ukraine and immediately and unconditionally withdraw all its military forces. Following the vote, the Russian Federation’s delegate explained that his delegation voted against the draft, as it contravenes the interests of the Ukrainian people who have experienced a tragedy over the last eight years, while emphasising that his country’s troops are not bombing cities nor targeting civilians. China’s representative said his country abstained because the Council’s response should be taken with great caution, through actions to defuse and not fuel tensions. Ukraine should be a bridge between the East and the West, not an outpost for major powers, he added.

On 27th February 2022, the UNSC did call for an Emergency Special Session (ESS) of the UN General Assembly on the situation in Ukraine, under the powers conferred by the “Uniting for Peace” resolution, which provides that “if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.” The vote to refer the situation to the General Assembly could not be vetoed by the Russian Federation since it was deemed to be a procedural matter requiring ⅔ majority of UNSC member States.

In the past, Emergency Special Sessions have mainly led to the establishment of a UN peacekeeping mission and strong recommendations for member States to sanction and isolate a State politically, militarily, financially and culturally. Others have set up commissions of inquiry or called for humanitarian assistance. De facto, the resolution could be used to invalidate President Putin’s justification for the war by stating there was no imminent danger to justify pre-emptive self defence. The first General Assembly resolution that came out of the ESS (to date there have been four resolutions adopted in the context of the ESS) received 141 votes in favour, 5 against and 34 abstentions. In it, the General Assembly recognised that the military operations of the Russian Federation inside the sovereign territory of Ukraine constituted an ‘aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the Charter’ and demanded ‘that the Russian Federation immediately cease its use of force against Ukraine and to refrain from any further unlawful threat or use of force against any Member State’.

In parallel, on 24 February 2022, an urgent debate by the UN Human Rights Council on ‘the situation of human rights in Ukraine stemming from Russian aggression’ was requested by Ukraine and duly convened on 3 and 4 March 2022, in the context of the 49th session of the Human Rights Council, which opened on Monday 28 February. As a result, member States adopted resolution 49/1 on the ‘Situation of human rights in Ukraine stemming from the Russian aggression’, which ‘condemns in the strongest possible terms the human rights violations and abuses and violations of international humanitarian law resulting from the Russian Federation’s aggression against Ukraine’ and ‘decides to urgently establish an independent international commission of inquiry, constituted by three human rights experts, to be appointed by the President of the Human Rights Council for an initial duration of one year, complementing, consolidating, and building upon the work of the HRMMU’. Most significantly, the resolution mandates the commission of inquiry to identify perpetrators and collect, consolidate, and analyse evidence of violations with a view to securing legal accountability. The resolution was adopted by a vote of 32 in favour, 2 against and 13 abstentions.

Following reports of alleged war crimes in the outskirts of Kiev and in the context of the continuation of its ESS, on 7 April 2022, the General Assembly, adopted draft resolution A/ES-11/L.4 (by a recorded vote of 93 in favour to 24 against, with 58 abstentions) entitled ‘Suspension of the rights of membership of the Russian Federation in the Human Rights Council’, which decided ‘to suspend the rights of membership in the Human Rights Council of the Russian Federation’, making it only the second time in history that a UN member State was suspended from the HRC (following Libya in 2011). Under GA resolution 60/251, establishing the Human Rights Council, ‘the General Assembly, by a two-thirds majority of the members present and voting, may suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights’.

OHCHR also regularly updates on civilian casualties. As of 11 May, 7,256 civilian casualties were recorded in the country: 3,496 killed and 3,760 injured – though the Office has repeatedly warned that they fear numbers are, in fact, considerably higher as these figures only refer to cases that have been verified. The OHCHR believes that most of the civilian casualties recorded were caused by the use of explosive weapons with a wide impact area. The OHCHR estimates that nearly 12.8 million people have been displaced in Ukraine, most of whom have not left the country.

Since the Russian aggression, the UNSC has convened seven meetings about the maintenance of international peace and security in Ukraine, as well as one Arria Formula meeting about accountability for atrocities during which Mr Erik Mosem, Chair of CoI, delivered a statement. On 26th April 2022, the Secretary General Antonio Guterres met the Russian Minister for Foreign Affairs reaffirming the urgent need for safe and effective humanitarian corridors to evacuate civilians and deliver much-needed assistance. On 28th April 2022, the Secretary General Antonio Guterres visited three areas deeply affected by the conflict in Ukraine recalling the importance of accountability, before meeting the Ukrainian President and the Minister for Foreign Affairs.

The 34th Special Session

After introductory remarks by the President of the Human Rights Council, H.E. Federico Villegas, a series of keynote addresses were delivered by the United Nations High Commissioner for Human Rights, Ms Michelle Bachelet, Victor Madrigal-Borloz, Chair of the Coordination Committee of UN Special Procedures and Mr Erik Møse, Chair of the Independent International Commission of Inquiry on Ukraine.

H.E. Ms Michelle Bachelet stated that the OHCHR continues to verify allegations of violations of human rights law and humanitarian law, many of which may amount to war crimes. She lamented the difficulties faced by for her staff in gaining access to the territory to obtain evidence and corroborate patterns of causes of civilian casualties, the vast majority of which continue to be caused by the use of explosive weapons with wide area effects in populated areas. Most of these casualties appear to be attributable to the Russian Armed Forces and affiliated armed groups. She expressed her concerns at accounts of summary executions, unlawful killings, lack of medical care and sanitation infrastructure and the fact that these killings of civilians often appear to be intentional. Ms Michelle Bachelet spoke about the unimaginable horrors suffered by the inhabitants of Mariupol and recalled the necessity to evacuate people in need of medical care. She said that the OHCHR have documented many cases of sexual violence and attacks against or enforced disappearances of journalists and civil society activists. Ms Michelle Bachelet urged all parties to provide clear instructions to combatants to protect civilians and persons hors de combat and duly distinguish between civilian and military objects while hostilities continue. She called on all those in command of armed forces to make clear that anyone found to have been involved in such violations will be prosecuted and held accountable. She urged States to fully respect their obligations under international human rights law and international humanitarian law, investigate allegations of violations and above all, commit to protecting every civilian woman, man and child, and all those hors de combat, stressing that our common humanity demands no less.

Mr Victor Madrigal-Borloz stated that he and his colleagues were receiving information, each within the confines of their mandate, about the disastrous consequences of the Russian invasion of Ukraine. He stressed that Special Procedures mandate holders have done their utmost to raise the attention of the international community to the crisis in Ukraine and to make public statements, addressing the wide range of serious human rights concerns, arguing that these concerted actions across the UN system demonstrate the urgency and seriousness of the situation, as well as the Special Procedures’ shared determination to contribute to a peaceful solution. He remained appalled at the aggression by the Russian Federation against the sovereign state of Ukraine, harming its territorial integrity. He reiterated that the use of force of one State against another, is fundamentally unacceptable and strikes at the very heart of the objective and purposes of the Charter of the United Nations. He declared that the consequences of this military attack on the protection and promotion of human rights in Ukraine will be profound and long lasting and will cause immense suffering and irreparable harm lasting for generations. He emphasised the vulnerability of older persons and persons living with disabilities, while describing an increasing flow of internally displaced persons and shortages of food, water, basic items and energy, as well as a general lack of access to health services and medication. Mr. Madrigal-Borloz also expressed his concerns about the food insecurity faced by the world, reports of gender based violence, attacks against journalists, the risk of the proliferation of disinformation and misinformation, as well as the racism suffered by racial and ethnic minorities trying to flee the country. He recalled the duty of businesses to ensure that they are not causing or contributing to grave human rights abuses in the context of the conflict. He called on the Russian Federation to immediately end its invasion of Ukraine to avoid further bloodshed and loss of life, and urged all parties to the conflict to respect international humanitarian law and international human rights law. He recalled that all alleged violations must be thoroughly, independently, impartially and effectively investigated, with a view to establishing full accountability of all those responsible and strongly urged the parties to establish a humanitarian ceasefire and ensure meaningful peace negotiations.

Mr Erik Møse recalled that the Commission has been actively engaging with all stakeholders, including through meetings with a large number of member States, NGOs based in Ukraine, and Geneva-based NGOs. He explained that the Commission has sought contact with the Russian Federation and remains ready to communicate. He pointed out the large number of entities that are investigating the situation in Ukraine and the resulting coordination issues. Mr Mose stressed that the Commission, as stated in its mandate, is fully independent and has no link to any particular country, party, or entity. He pointed to the need to build upon a broad range of sources and to consider them jointly. He stressed that the Commission will always consider evidence carefully, giving particular weight to primary sources, and seeking corroboration, whenever needed. He noted that while not strictly a judicial instance, one of the tasks of the Commission is to identify where possible individuals and entities responsible for violations or abuses of human rights, or of international human humanitarian law or other related crimes. In this regard, he declared that the Commission intends to take a victim-centred approach to make recommendations about the full range of accountability measures.

Ukraine, as a country concerned, delivered a statement welcoming the holding of the special session. Ukraine described a deteriorating situation in the country as thousands of people have lost their lives, over half a million Ukrainian citizens have been forcibly deported to Russian territory and an increasing number of cities have been destroyed or become unsuitable to live in. Ukraine recalled that the Human Rights Council has a moral responsibility to act because of the alleged use of torture, enforced disappearances, sexual and gender based violence and other human rights violations committed by the Russian Federation. Ukraine pointed to the particular situations in Crimea where people are conscripted into the Russian army and the bombings on the city of Mariupol. Ukraine also underlined that over 1.7 billion people around the world may face poverty and famine as a result of this war.

During the special session, 27 member States, 44 observer States, 18 international organisations and civil society organisations took the floor to discuss the deteriorating human rights situation in Ukraine stemming from the Russian aggression.

Argentina regretted the war and its impact on the rights to food, health, and housing. They condemned the invasion and the military operations in the territory. They reaffirmed their respect for the territorial integrity and sovereignty of Ukraine and expressed their concerns over reports of possible war crimes by the High Commissioner on Human Rights, as well as  allegations of torture, GBV, mass displacement and forced disappearances. Argentina called on all parties to respect the due identification of bodies and death registration, and to ensure full and unrestricted access to information in every part of Ukraine.

China declared that the territorial integrity and sovereignty of all countries should be respected and that the legitimacy of every Security Council member State should be taken seriously. They recalled that all initiatives aimed at conflict resolution and the provision of humanitarian aid should be respected. China shared its belief that all parties should jointly negotiate with the view of  secure peaceful outcomes to guarantee human rights in Ukraine and Russia, and to facilitate peaceful settlement rather than fuel tensions. China noted that in recent years, politicisation and confrontation in the Human Rights Council is on the rise impacting its impartiality. They therefore called for the promotion of multilateralism.

India reiterated its consistent position concerning the human rights situation in Ukraine and expressed its concerns regarding the development of the conflict. They called for cessation of violations and condemned the killings in Butcha. They stressed that dialogue and diplomacy are the only way out of the conflict. India noted that humanitarian supplies had been sent to Ukraine and encouraged all parties to ensure free access for humanitarian relief. India deplored the rise in prices due to food shortage, burdening people around the world, especially in the least developed countries.

The Republic of Korea deplored the devastating consequences on civilians and critical infrastructures, which are being destroyed across the country. They expressed alarm at the reports of atrocities in Butcha and other cities and strongly condemned these violations of human rights law and international humanitarian law. The Republic of Korea recalled that attacks on civilians cannot be justified and reiterated their strong support for independent investigations into atrocities, including the ongoing work of the OHCHR monitoring mission and the CoI. They expressed deep concern at developments in the conflict, especially seeing the trapped civilians in Mariupol with no access to food, water and electricity, stressing that safe passage must be guaranteed and this military aggression must come to an end.

Lithuania, deplored the growing sufferings of the people of Ukraine and the complete destruction of its cities. They pointed out that the Russian Armed Forces are using rape and other sexual abuses as weapons of war and condemned the Russian disinformation campaign to hide many facts. Lithuania lamented that this conflict has a global effect on food security, transport, grain exports and stressed that it has become crucial to open ports for export. Lithuania stressed that the Human Rights Council must seek full accountability and reiterated their resolute support for Ukraine, its territorial integrity and sovereignty.

Marshall Islands, on behalf of the Group of Friends of accountability following the aggression against Ukraine, deplored the high number of civilian casualties, including children, and condemned the use of arbitrary detention, enforced disappearances, gender based violence and other human rights violations, which may amount to war crimes and other crimes under international law. Marshall Islands declared that States must be vigilant of Russian propaganda and expressed grave concern at the spillover effect of the conflict as the Russian aggression threatens global energy and food systems. Vulnerable persons all over the world will be more severely impacted, they stressed. They called on the Russian Federation to de-escalate its nuclear rhetoric and on all actors to better coordinate in collecting and preserving evidence, so as to bring justice to victims, which they underlined is the necessary foundation for future peace and the prevention of further atrocities.

The United Kingdom recalled that it is the responsibility of the Human Rights Council to help protect the world, therefore stressing that the situation in Ukraine deserves its ongoing attention. They recalled that this aggression is an attack on the people of Ukraine, on the fundamental principles of international law and on the legal order on which all our freedoms and security depend. They lamented reports of atrocities in Butcha as well as the situation of vulnerability of children, the elderly and those trapped without adequate food and medical supplies, while the number of casualties still grows. All allegations must be investigated thoroughly, they stressed, while expressing support for the work of the Council and reiterating that the international community must show that it is watching and cares.

Israel, as an observer state, reaffirmed that the sovereignty of Ukraine should be fully respected and protected, and condemned all human rights violations. They deplored the impact of military activities on civilians and welcomed the evacuations, while encouraging all parties to ensure unhindered access for humanitarian relief and expressing hope that parties will find a way to return to the negotiating table. Israel reiterated that they would continue to do all they can to assist the Ukrainian people and expressed deep concern over the Russian use of anti-semitic rhetoric.

Turkey, as an observer state, expressed their support of Ukrainian sovereignty and territorial integrity. They deplored the suffering that results from the war, as well as the degradation of international law and associated global complications. They reaffirmed that targeting civilians cannot be accepted and that perpetrators must be held accountable. All parties should seek means to ceasefire and open humanitarian corridors, while keeping channels for dialogue open to ensure conflict resolution and achieve peace without delay.

Article 19 deplored the atrocities committed in Ukraine, which constitute a human right crisis. The organisation is particularly concerned by the impact of military hostilities on freedoms of opinion, expression and information as these freedoms, which are crucial during wartime. Indeed, Article 19 explained that these freedoms ensure accountability and ultimately contribute to peace. The organisation denounced murders and kidnapping of journalists, which amount to war crimes and whose perpetrators should be held accountable. In this vein, Article 19 welcomed the establishment of the Commission of Inquiry.

Ingénieurs du Monde, on the behalf of a cross regional civil societies alliance, called on Secretary-General Guterres and High Commissioner Bachelet to speak out and seek the release of prisoners of conscience in Russia. The organisation talked about the criminalisation of journalists, human rights defenders and civil societies suffering from arbitrary detention, poisoning attempts and other cruel, inhuman and degrading treatment and stressed the need to guarantee freedom of expression.

Draft Resolution A/HRC/S-34/L.1 was adopted as orally revised with 33 voting in favour, 2 against, and 12 abstaining.

With the adoption of resolution S-34/L.1, the Council reiterates its demand for the immediate cessation of military hostilities against Ukraine, any attacks against civilians and civilian objects, and other violations of international humanitarian law and of any human rights violations and abuses in Ukraine, as well as of any disinformation, propaganda for war and national hatred related to the aggression against Ukraine (OP1). The text also urges the Russian Federation to provide representatives and staff of international human rights and humanitarian institutions with unhindered, timely, immediate, unrestricted and safe access to persons who have been transferred from conflict-affected areas of Ukraine and are held on the territory of the Russian Federation or areas controlled or occupied by the Russian Federation, and to share with relevant parties a comprehensive list of such transferred persons (OP2). The text requests the independent international commission of inquiry on Ukraine to conduct a comprehensive and independent special inquiry into the events in the areas of the Kyiv, Chernihiv, Kharkiv and Sumy regions in late February and in March 2022 with a view to holding those responsible to account, and to brief the Human Rights Council on the findings of the special inquiry to be presented at HRC51 and HRC52 (OP3). The text also requests the High Commissioner to present an oral update on the grave human rights and humanitarian situation in Mariupol at HRC50, to be followed by an interactive dialogue (OP4). Finally, the resolution encourages relevant thematic special procedure mandate holders, within their respective mandates, to continue to pay particular attention to the situation of human rights in Ukraine stemming from the Russian aggression, and urges all relevant parties to cooperate with those mandate holders (OP5).

Webcasts of those statements can be found here.

The full text of HRC resolution L34/1 can be read here.

 


Featued image: ‘7A Koshytsia Street, Kyiv, 25 February 2022’, Oleksandr Ratushniak. Licenced under creative commons

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