Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 14/09/2021 Aceptado el 16/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 39, Nº 71 (2021), 334-349
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Peculiarities of Realization of the
International Mechanism for the
Protection of the Rights of Victims of
Armed Conict in the East of Ukraine
DOI: https://doi.org/10.46398/cuestpol.3971.17
Alexander G. Kolb *
Malvina Hrushko **
Hanna Teteriatnyk ***
Olha Chepik-Trehubenko ****
Olha Kotliar *****
Abstract
The article analyzes the content of international legal acts
related to the protection of the rights of victims of military conicts.
At the same time, its results identify the characteristics of its
implementation in Ukraine. It has been established that some of
these legal sources have not been ratied by Ukraine or otherwise Ukraine
has not given them a binding legal eect. Using a documentary-based
methodology close to legal and political hermeneutics, this article develops
scientically sound and relevant proposals aimed at improving the legal
mechanism to protect the legitimate interests and rights of the victims of the
military conict in Eastern Ukraine. It is concluded that the current legal
problems not only negatively aect the state of law enforcement activity in
Ukraine, which is directly related to the content of this process, but also does
not allow adequate inuence on the determinants that give rise to, and cause
military and territorial conicts in Ukraine, a situation that can be extrapolated
to other societies near or far.
Keyword: victim of armed conicts; legal norm; hybrid war; ratication
of international treaties; international agreement.
* Doctor in Law, professor of departament of Political Science and Public Administration, Lesya Ukrainka
Volyn National University. ORCID ID: https://orcid.org/0000-0003-1792-4739
** Docent of department of International and European Law of the National University “Odessa Law
Academy”, faculty of international legal relations, candidate of Law, docent. ORCID ID: https://orcid.
org/0000-0002-5856-8147
*** Head of department of Criminal Procedure of Odessa State University of Internal Afairs, candidate of
Law, docent. ORCID ID: https://orcid.org/0000-0002-8321-7912
**** Docent of department of General Law, Dnipropetrovsk State University of Internal Aairs, faculty of
law, candidate of Law. ORCID ID: https://orcid.org/0000-0001-5499-5793
***** Docent of department of International Law, State Higher Educational Institution "Uzhhorod National
University", candidate of Law. ORCID ID: https://orcid.org/0000-0002-3485-4157
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Vol. 39 Nº 71 (2021): 334-349
Peculiaridades de la aplicación del mecanismo
internacional de protección de los derechos de las
víctimas de conictos armados en Ucrania oriental
Resumen
El artículo analiza el contenido de los actos jurídicos internacionales
relacionados con la protección de los derechos de las víctimas de conictos
militares. Al mismo tiempo, sus resultados identican las características
de su implementación en Ucrania. En particular, se ha establecido que
algunas de estas fuentes legales no han sido raticadas por Ucrania o, de
lo contrario, Ucrania no les ha dado un efecto legal vinculante. Mediante
una metodología de base documental próxima a la hermenéutica jurídica
y política este artículo desarrolla propuestas cientícamente sólidas y
relevantes destinadas a mejorar el mecanismo legal para proteger los
intereses y derechos legítimos de las víctimas del conicto militar en el Este
de Ucrania. Se concluye que los problemas legales actuales no solo afectan
negativamente el estado de actividad de la aplicación de la ley en Ucrania,
que está directamente relacionado con el contenido de este proceso,
además tampoco permite inuir adecuadamente en los determinantes que
dan lugar y causan conictos militares y territoriales en Ucrania, situación
que puede extrapolarse a otras sociedades cercanas o lejanas.
Palabras clave: víctima de conictos armados; norma legal; guerra
híbrida; raticación de tratados internacionales;
acuerdo internacional.
Introduction
According to modern realities in Ukraine, on the way to its future
membership in NATO and the EU, as well as the full implementation of relevant
state programs regarding ensuring the fundamental rights and freedoms of
human and citizen, a serious problem has arisen, namely: terrorist activity
and in general a hybrid war of the Russian Federation, which is carried out
by military units of this country and separatists (French separatism; Latin
separatus - separated from society) (Decree of the President of Ukraine,
2015; Bulko, 2010). in the Donbass (Donetsk and Luhansk regions). As a
result, almost 11 thousand terrorist acts (and, in fact, the results of the armed
conict), which have been committed by 1 thousand 375 people, took place
only in 2014-2019 on the territory of our state.
Similar trends persisted in subsequent 2020-2021 years. Moreover, the
specic gravity of criminal oenses of this nature, which resulted from the
military conict in the East of Ukraine, is almost 11% of the total number of the
socially dangerous acts that encroach on the public safety.
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Alexander G. Kolb, Malvina Hrushko, Hanna Teteriatnyk, Olha Chepik-Trehubenko y Olha Kotliar
Peculiarities of Realization of the International Mechanism for the Protection of the Rights of
Victims of Armed Conict in the East of Ukraine
Regarding the structure of these criminal oenses, it is dominated by
terrorist acts (71.68%). In general, the specied oenses are also committed
by:
1. creation of a terrorist group or terrorist organization, as well as
participation in it - 23.65%.
2. terrorist nancing - 4.16%.
3. committing other terrorist acts (military actions of a hybrid nature)
- 0.51%.
Although the Global Index of Terrorism places Ukraine only 24th out of
138 countries of the world, the level of terrorist attacks on the national security
of our state, its state sovereignty, territorial integrity, and other objects of legal
protection, referred to the art. 111 of the Criminal Code of Ukraine, according
to international experts, is the highest, given the threats that are posed by the
hybrid war of the Russian Federation in the Donbass.
This conclusion is based on the following empirical materials:
1. terrorist activity in the East of Ukraine (as a type of hybrid war) has
a group character (consolidated, united, and purposeful).
2. military aggression on this territory is carried out with active use of
modern types of armor and conducting combat operations on the
basis of new developments and technologies.
3. creation of terrorist groups or terrorist organizations, such as the
“LPR” and “DPR” (respectively Luhansk and Donetsk People’s
Republics) is done by military professionals, as well as military
formations and security agencies of the Russian Federation.
4. illegal armed groups “LPR” and “DPR” are stable criminal
associations that operate in conjunction with military units of the
Russian Federation.
5. sources of nancing terrorist activity in Ukraine are: funds of the
aggressor state; nancial income from illegal business in our state
(sale of drugs, psychotropic substances, money, etc.); funds that are
received from certain political forces, as well as from the secret funds
of international terrorist organizations “Al Qaeda”, “Al-Islamiya”,
“Al-Qiyam”, etc.;
6. members of terrorist groups and organizations are males, who are
30-45 years old (82% in the structure of all participants in the hybrid
war in Ukraine) (Mokliak, 2020).
Thus, it should be recognized that there is a complex applied problem
that needs to be solved at the doctrinal level, given the peculiarities of the
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Vol. 39 Nº 71 (2021): 334-349
protection of the rights of victims of the armed conict in Donbass, in this
regard, problems that are related to the inconsistency of domestic law and
norms of international law on the specied issues.
1. Description (statement) of the problem
For the eighth year in a row, the so-called “hybrid war” (war with a
combination of terrorism, cyber warfare, and criminal behavior in order
to create internal contradictions and conicts in a country chosen for
aggression by an aggressor state) with the Russian Federation, its victims
were more than 14 thousand servicemen and civilians, as well as signicant
(according to experts) material damage to our country as a whole and to
individual citizens.
Thus, feature of military actions in the specied territory of Ukraine is
that until now:
1. This military-political conict is not recognized as war at the level of
legislative and executive power of both warring countries, therefore, its
content and consequences do not fall under the scope and jurisdiction
of a number of key international legal acts, which regulate the specied
issue (according to some researchers, it is almost 50 such legal sources,
of which only 20% have been ratied by Ukraine (Khavroniuk, 2005).
2. The legal guarantees and other preferences (from French preference
- advantage; Latin preferred - privilege; advantage), which are
provided by the norms of international law for victims of military
conicts do not apply to persons who do not fall under the status
of refugees, but are considered internally displaced persons (Bulko,
2010; Verkhovna Rada of Ukraine, 1977; Verkhovna Rada of
Ukraine, 1951; Verkhovna Rada of Ukraine, 2014).
3. If the term “victim of a crime” is used in the norms of international
law, then “victim” is used in the national legislation that is not
identical with regard to the protection and legal guarantee of the
specied statuses of the person.
In particular, the victim of a crime is understood as a person or a community
of people in any form of their integration, who are directly or indirectly harmed
by the crime (Golina et al., 2014). It should be noted that this term is not
enshrined at the legislative level in Ukraine.
In turn, the following concept of “victim” has been formulated in the part
1 of art. 55 of the Criminal Procedure Code (CPC) of Ukraine, namely, it is
a natural person who has suered moral, physical or property damage as a
result of a criminal oense, as well as a legal entity that has suered property
damage by a criminal oense.
338
Alexander G. Kolb, Malvina Hrushko, Hanna Teteriatnyk, Olha Chepik-Trehubenko y Olha Kotliar
Peculiarities of Realization of the International Mechanism for the Protection of the Rights of
Victims of Armed Conict in the East of Ukraine
1. Those guilty of committing unlawful military acts in eastern Ukraine
are not prosecuted for crimes against peace, security of mankind
and international law and order (Section XX of the Criminal Code
(CC) of Ukraine), but are prosecuted for committing terrorism or
criminal oenses against the foundations of national security, public
safety and the individual, which, again, is not identical in terms
of international legal mechanisms for the protection of victims
(Verkhovna Rada of Ukraine, 1977).
Namely, these circumstances that necessitated the scientic development
of this problematic, as well as determined the theoretical and applied
signicance of this article.
2. Analysis of the recent research
The closest to the subject of this scientic article are the doctoral theses
of Yu. V. Danylchenko and O.O. Stepanchenko, as well as V.V. Mokliak
thesis for the degree of candidate of law (Danylchenko, 2018; Stepanchenko,
2018; Mokliak, 2020).
At the same time, in the context of the peculiarities of the military
events taking place in the East of Ukraine, and existing problems in this
regard, the chosen research topic is aimed not so much at expanding the
boundaries of theoretical knowledge about the phenomena of terrorism, but
at developing eective measures, aimed at improving the legal mechanism
for the protection of victims from the hybrid warfare, taking into account
the potential opportunities of norms of international law on this issue.
This, in fact, is the purpose of this scientic article, and its main task is to
clarify the gaps, conicts and contradictions that exist between the content of
relevant international legal acts and the legislation of Ukraine, which regulate
public relations that are related to the protection of the rights of victims from
the military conicts.
3. Materials and methods
This scientic article uses both general scientic and special scientic
methods. The methodological basis of this work is a dialectical method
of scientic cognition of social legal phenomena and processes in their
contradictions, development, and changes, which made it possible to
objectively assess the state and eectiveness of the realization of the
international mechanism for the protection of the rights of victims of the
military conict in the East of Ukraine.
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In turn, the priority in the course of this research was the comparative
legal method, by means of which it was possible to establish the existing
discrepancies (contradictions, conicts and gaps) between the norms of
international law and the legislation of Ukraine on the specied problematic.
The application of the system-legal method allowed to consider the
investigated elements of the subject of this scientic article as an interconnected
and mutually conditioned set of normative-legal acts of international and
domestic character, as well as to formulate in this direction systemic measures
aimed at improving the legal mechanism for the protection of the rights of
victims of the military conict in the East of Ukraine.
The formal-dogmatic method has created appropriate conditions for
substantiation of the conclusions that are formulated in this work both on
divisions (there are three of them in it), and as a whole on the given scientic
work.
Important in the course of this research was the role of methods of analysis
and study of documents, by means of which the content of the international
legal acts and norms of the current legislation of Ukraine on issues of protection
of victims of hybrid war in Donbass is found out, as well as the essence and
direction of scientic developments on the specic problematic.
Statistical methods gave the opportunity to determine quantitative and
qualitative indicators, characterize the state and trends of protection of the
rights of victims of the military conict in the East of Ukraine.
In one way or another, in the context of solving the local tasks of this
scientic article, it uses the possibilities of other scientic methods (social
naturalism - in justifying the priority of natural human rights, namely - the
principle of the rule of law; synthesis - if the need to harmonize the norms
of international law and legislation of Ukraine; induction and ascent from
the abstract to the concrete - to clarify the content of the key concepts of this
scientic article (“hybrid war”; “refugee”; “temporarily displaced person”;
“victim of a criminal oense”, etc.) and their relationship between them .
This research methodology allowed to fully achieve the goal and implement
the dened in this work main task.
The results of the conducted research of the content of international
legal acts and current legislation of Ukraine, which relate to the content of
protection of the rights of victims of military conicts, have showed that the
eectiveness of their realization in practice is inuenced by several signicant
circumstances that constitute certain elements of the content of the subject of
this scientic article.
Regulatory and legal incompatibilities between the above-specied legal
sources. First, it concerns those international legal acts that have been ratied
or, in one or another way that is specied in the law, have become mandatory
for implementation on the territory of Ukraine.
340
Alexander G. Kolb, Malvina Hrushko, Hanna Teteriatnyk, Olha Chepik-Trehubenko y Olha Kotliar
Peculiarities of Realization of the International Mechanism for the Protection of the Rights of
Victims of Armed Conict in the East of Ukraine
As it is stipulated by part 1 of article 9 of the Constitution of Ukraine, the
current international agreements that are approved by the Verkhovna Rada of
Ukraine, are part of the national legislation of Ukraine.
At the same time, in accordance with the requirements of the Law of
Ukraine “On international agreements”, international legal acts come into
force in Ukraine in dierent ways, namely:
1. through the procedure of ratication, approval, acceptance, or
accession (according to the articles 9, 12, 13 of this Law).
2. when an international treaty is signed, ratied, approved, accepted,
or acceded to, declarations and cautions may be made to its
provisions in accordance with norms of international law.
As a result, it should be stated that today in Ukraine more than 40
international legal acts, which have a direct relation to the investigated
problematic in this scientic article, have not acquired legal force.
These include such important norms of international law as:
• European Convention on the compensation for victims of violent
crimes of November 24, 1983 (Verkhovna Rada of Ukraine, 1983);
• Rome Statute of the International Criminal Court of July 17, 1998
(Verkhovna Rada of Ukraine, 1998).
• Declaration of basic principles of justice for victims of crime and
abuse of power of November 29, 1985, and others (Verkhovna Rada
of Ukraine, 2011; Khavroniuk, 2005).
This approach has an extremely negative impact on activity of Ukraine
to protect victims from the hybrid warfare in the East, whereas there is
still no proper in our country legal mechanism on these issues, given the
requirements of international law.
Moreover, there is a discrepancy between the content of the laws of
Ukraine and international legal acts governing this area of public relations
in many cases.
Thus, the term “refugee” is used in the norms of international law
in relation to persons, who are aected by military conicts of various
character, the term “temporarily displaced person” is used in the current
legislation of Ukraine, which do not match in their status.
In particular, a refugee is a person who has become a refugee as a
result of events prior to January 1, 1951, and due to well-founded fears
of being persecuted on racial grounds, religion, nationality, membership
of a particular social group or political opinion, who has been outside the
country, his national identity and has been unable to enjoy the protection
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of that country or has not wished to enjoy such protection due to such fears
or has not been able or has not wanted to return to it due to such fears, not
having a certain citizenship and being outside the country of their former
place of residence as a result of such events.
In turn, albeit the provisions of the Convention are reproduced in full, but
a legally signicant remark (French remarque - note) about that, a citizen
of Ukraine cannot be a refugee is also made in the Law of Ukraine “On
refugees and people, who need the additional temporary protection”(Bulko,
2010).
At rst glance, everything seems logical, because how can refugee be a
person, who lives in the country of which he is a citizen?
At the same time, the citizens of Ukraine, foreigners and stateless
persons who are on the territory of Ukraine on legal grounds and have the
right to permanent residence in Ukraine, who were forced to leave their
place of residence as a result or in order to avoid the negative consequences
of armed conict, temporary occupation, generalized violence, human
rights violations and emergencies of natural or technical nature (part 1 of
the article 1) are considered to be such people in the Law of Ukraine “On
ensuring the rights and freedoms of internally displaced persons”.
In this regard, a logical question arises, what status is more extensive in
the context of a hybrid war and, in fact, the open aggression of the Russian
Federation in the East of Ukraine?
As it appears, it is necessary to clarify the meaning of other terms that
are used in connection with this in the norms of international law in order
to give an answer in this regard.
First of all, this applies to the term “aggression”, which is widely used
at the normative and legal, doctrinal, applied and other levels in Ukraine.
This term without ocial interpretation is used in the art. 437 of the
Criminal Code “Planning, preparation, resolution and conduction of
aggressive war” in the legislation of Ukraine.
Moreover, nobody has been prosecuted for the commission of this
criminal oense since the entry into force of this Code in 2001, including
the period 2014-2021.
As practice shows, the main obstacle for the justice is the lack of such an
important feature in the objective side of the specied criminal oense, as
way, – the application of armed force by the aggressor state directly against
the state of Ukraine, whereas the latter has not declared yet a state of war
with Russia at the political and legal level, which is a necessary condition of
recognizing its actions as aggression, as this follows from the content of the
relevant norms of international law.
342
Alexander G. Kolb, Malvina Hrushko, Hanna Teteriatnyk, Olha Chepik-Trehubenko y Olha Kotliar
Peculiarities of Realization of the International Mechanism for the Protection of the Rights of
Victims of Armed Conict in the East of Ukraine
Thus, the aggression means the use of armed force by a state (group of
states) against the sovereignty, territorial integrity, political independence
of another state or people (nation), is incompatible with the UN Charter in
the UN Convention of March 23, 1934.
However, in this sense, it should be noted that in the scientic literature
there are other approaches, according to which aggressive war can be called
the events of military conict, which occur without declaring war on the
aggressor state (Maliar, 2016).
This position does not seem to be acceptable, given that Ukraine still does
not comply with the requirements of the UN General Assembly Convention
of December 14, 1974, in which the concept of “aggression” is divided into
two types that are not used in the legal practice of our country, namely:
1. aggression that leads to international responsibility.
2. aggression, which is a crime against international peace (UN General
Assembly, 1974).
Apart from this, in this sense is the resolution of the Verkhovna Rada of
Ukraine dated 21.04.2015 № 337-VIII “On the statement of the Verkhovna
Rada of Ukraine “On responsing the armed aggression of the Russian
Federation and overcoming its consequences”, which has a more political
meaning, as it also did not enshrine the fundamental principles that are set out
in the above-mentioned UN Convention (Verkhovna Rada of Ukraine, 2015).
Indicative and at the same time instructive in this context is the social and
legal paradox that has developed in connection with the events, which occur in
the East of Ukraine, namely: if there is a hybrid war in the specied territory,
why are its participants from both parties not called prisoners of war in cases
of their detention and why are they subject to international legal acts that
govern this issue (Verkhovna Rada of Ukraine, 1949).
At the same time, the separatists of the quasi-republics “LPR” and
“DPR”, having no domestic legislation, use the Criminal Code of Ukraine and
prosecute servicemen of the Armed Forces and other formations of Ukraine
for committing general criminal oenses (terrorist act; premeditated murder;
illegal handling of weapons; etc.), thus giving these persons the status of a
convict, not a prisoner of war.
Domestic courts follow the same path, as they do not have legal grounds to
recognize participants in a military conict for the reasons that are discussed
above.
Therefore, until Ukraine raties the Rome Statute of the International
Criminal Court and applies its norms to Russian servicemen, mercenaries and
separatists who are waging a hybrid war in the East of our state, we will not be
able to provide adequate legal protection to the victims of this military conict
and, in fact, but not from a legal point of view to Russian aggression.
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Important in this regard is another conclusion that the fundamental
principle of the rule of law is enshrined in international law, as, in fact, in
the Constitution of Ukraine (article 8), which is a necessary prerequisite for
the alignment (harmonization, convergence, etc.) of domestic legislation and
international legal acts, which regulate the issue of protection of the rights
of victims (no matter how they are dened at the regulatory level (refugees;
internally displaced persons; victims of military conicts; etc.)) (Golovatyi,
2006).
The second key problem, which has an extremely negative impact on
the eectiveness of the realization of the international mechanism for the
protection of the rights of victims of the military conict in the East of Ukraine,
is the low level of fulllment of commitments of our country.
As a result, every year Ukraine, on the one hand, becomes a subject of judicial
proceedings in the European Court of Human Rights (ECHR), on the other
hand, is forced to pay signicant funds for victims of inaction and wrongful
acts of ocials of relevant government agencies, institutions, enterprises and
organizations, as it is provided by the Law of Ukraine of 23.06.2006 “On the
implementation of decisions and application of the case law of the European
Court of Human Rights” (Verkhovna Rada of Ukraine, 2006).
In particular, as it has been established in the course of special scientic
research, the ECHR has so far adopted almost 200 decisions, in which it stated
the Ukraine’s violation of articles 2 and 3 of the Convention for the Protection
of Human Rights and fundamental freedoms of November 4, 1950, regarding
its citizens.
At the same time, according to the decisions of the European Court
of Human Rights, our state annually pays from 25 to 30 million hryvnias
(Podilchak, 2015).
If to evaluate the specied legal facts in view of the structure of oenses
that have been committed by Ukraine, it has the following view:
a) this is a procedural violation (21% of the total number that are related
to ineective investigation).
b) 15 violations, which were consequences of torture of the person (9%).
c) 59 violations concern cases of inhuman and degrading treatment
(34%).
d) 62 violations (non-response or ineective investigation of complaints
of citizens) (36%) (Babin, 2015).
According to social and political practice, the main reason of the low
level of executive discipline in our country is the mentality (from Latin
mentalis - way of thinking), that formed in Ukrainian society, namely:
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Alexander G. Kolb, Malvina Hrushko, Hanna Teteriatnyk, Olha Chepik-Trehubenko y Olha Kotliar
Peculiarities of Realization of the International Mechanism for the Protection of the Rights of
Victims of Armed Conict in the East of Ukraine
from the President of Ukraine, people’s deputies and other government
ocials, including judges who take an oath to serve the law (adhere to the
international principle of the rule of law, as well as to ordinary citizens in
certain legally signicant situations promises, voluntary commitments are
made, etc., but already at achievement of the desirable purpose (election
as the President of Ukraine, etc.) everything at once “is forgotten” for some
reason – this is immoral, and in the West this is unacceptable behavior that
undermines the reputation (French reputation, Latin reputation - thinking;
creating a general opinion about the human virtues of a certain person) of
our state as a whole in the international arena (Golovatyi, 2006; Bulko,
2010).
Indicative in this sense is the behavior of representatives of Ukraine in
relations with the International Monetary Fund (IMF), when our state receives
a nancial tranche (French tranch - series, part; nancial credit), but does not
fully comply with the commitments that are made in this regard, including the
conduction of reforms in the military sphere, protection of the rights of victims
of violent crimes, the creation of a fair trial, etc.
However, as some researchers have aptly concluded in this regard,
regarding the mental component, then to change attitude to the man, the task
is complex, systemic and aects consciousness. Moreover, the consciousness
is not an individual and not a separate community, but the whole society, its
social and cultural layers.
Important, in the context of the problematic that is studied in this scientic
article, there is another conclusion of scientists: the norm becomes legal only
when it is reected in the social practice (Kyrychenko, 2015).
Practical aspects and problems of realization in Ukraine of the international
mechanism of protection of the rights of victims of the military conict in the
East of Ukraine.
The essence of the specied problematic is that our country, contrary to the
requirements of the generally accepted international legal norms, according
to which any state which, in one form or another, has made it binding on its
territory, cannot explain by the lack of material, nancial and other resources
of the violation of fundamental human and civil rights and freedoms, as well
as narrowing their scope and content.
Instead, Ukraine, based on the decision of the Constitutional Court of
25.01.2012 № 3-rp / 2012 (the ocial interpretation of the article 1 of the
Constitution of Ukraine), chose a completely dierent approach, namely:
when adopting new laws or amending current laws, it allows the narrowing
of the content and scope of existing rights and freedoms, including those that
are the subject in this research article (Constitutional court of Ukraine, 2012).
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As a result, our state is not fullling its obligations and improperly ensuring
the rights of victims of the military conict in Donbas starting from 2014 to the
present.
In particular, until the adoption of the Law of Ukraine “On ensuring
the rights and freedoms of internally displaced persons” in October 2014,
the Government of Yatsenyuk blocked receiving pensions and other social
benets of those who remained living in the occupied territories of the East
of our country, and later created other obstacles for this category of victims
of military conict at the regulatory level (Verkhovna Rada of Ukraine, 2014).
In addition, neither in the banking nor in the social spheres, Ukraine has
not provided any benets and preferences, which are provided not only by the
norms of international law, but by the above-specied Law of Ukraine, for the
specied victims of the war.
There are even more problems that are related to the availability of legal
gaps and conicts, as well as inconsistencies with the content of international
legal acts of the practice of assigning pensions to servicemen and persons, who
are equated to them who have become war invalids.
Instead of as provided in civilized countries (USA, FRG, England, etc.),
for establishing a single number of benets for all categories of people with
disabilities, they are based on two main criteria in Ukraine - the presence
of work experience before injury (mutilation, etc.), as well as the amount of
salary that had been received before.
In addition, as a result, some war invalids receive several times higher
pensions than others, which is a gross violation not only of international
law but also of the art. 24 of the Constitution of Ukraine, according to which
citizens have equal constitutional rights and freedoms and are equal before
the law.
No less disgusting in this regard is another practice, when due to lack
of funds in the State Budget of Ukraine, social payments (compensations,
amounts of money that the court ordered to be paid, etc.) in the relevant state
institutions are made according to the lists that are approved by him, not
taking into account neither the level of ination nor other nancial and price
aspects that prevailed at that time in the state, at the time of their receipt by
creditors (direct victims).
And there are many such factors in the historical socially dangerous practice
of our state that are directly and indirectly related to the protection of the
rights of victims of hybrid warfare in the East, which can also be attributed to
the peculiarities of the implementation of our state’s international obligations
on the specied problematic.
“The freshest” example in this regard is the misuse of funds that have been
allocated to the Government of Ukraine to combat COVID-19, which were
aimed at the road construction by the latter.
346
Alexander G. Kolb, Malvina Hrushko, Hanna Teteriatnyk, Olha Chepik-Trehubenko y Olha Kotliar
Peculiarities of Realization of the International Mechanism for the Protection of the Rights of
Victims of Armed Conict in the East of Ukraine
All this testies to the systemic character of the problems that have arisen
in connection with the need to protect the rights of victims of the military
conict in Donbass, as well as to the need to resolve them as soon as possible
in the context of the Euro-Atlantic intentions of Ukraine and the desire to join
the EU and NATO as soon as possible.
Conclusions
Therefore, based on the results of the study, it can be argued that the rights
of all categories of victims of the military conict in the East of Ukraine are
inadequately protected today in Ukraine, as it is provided by the international
mechanism on these issues.
In this case, the main circumstances that negatively aect the specied
activity, are not only and not so much disharmony (inconsistencies) of norms
of domestic and international law, that are directly related to solving the
problems of the specied persons, how much low is the level of fulllment
of Ukraine’s obligations of international legal character, as well as a gross
violation of the internationally recognized principle of the rule of law by our
state, which is reected in the art. 8 of the Constitution of Ukraine, and of
other conceptually important principles of international law, which govern the
spheres of protection of victims (injured) of military conicts.
No less “vulnerable” to this process is the misuse of funds and other
material resources that are allocated to solving tasks, which are involved
in the problematic of research, both by the Government of Ukraine and by
its other partners (French pretensive - participant of the game) (primarily,
by the United States, Canada, the European Union, etc.) at improving the
structure and combat capability of the Armed Forces of Ukraine, to protect
the population living in the territories that are close to the military conict, the
so-called “gray areas” (neutral human settlements that are located between
the parties to the military confrontations) of social rehabilitation of victims
of hybrid war: ght against corruption directly in the combat units of military
formations of our state; etc. (Bulko, 2010).
Thus, there is a complex applied problem, which has signs of relevance,
theoretical and practical signicance, which necessitated its need of analysis
in this scientic article, and also created an appropriate methodological basis,
including pros and cons, for further similar scientic research in this direction
in order to create appropriate conditions for the realization of the international
mechanism for the protection of the rights of victims of military conict in the
East of our country.
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Esta revista fue editada en formato digital y publicada
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Vol.39 Nº 71
