Wayne Jordash QC, Managing Partner of the International Human Rights Group Global Rights Compliance, named ten steps Ukraine needs to take to exercise efficient legal regulation of the occupied territories. The main thing is to collect reliable evidence of Russia’s presence in the occupied territories in order to find out whether the legal regime of occupation is applicable based on the international humanitarian law. It is also important to prevent discrimination of the population as well as secure the access of humanitarian aid to the uncontrolled areas, etc. “Ukraine should consider the following minimum 10 steps. These steps or requirements will enable Ukraine to design law and regulations that regulate the uncontrolled territories, or the relationship of Ukraine with the uncontrolled territories in a way that stays on the right side of international humanitarian law and international human rights law,” explained Wayne Jordash QC at a press-briefing at Ukraine Crisis Media Center.
According to him, the most important task is to collect the facts on the situation in the temporarily occupied territories and to assess the scales of the Russian presence and control of the situation based on them. It will allow assessing whether the legal regime of occupation can be applied to this case based on the international humanitarian law. “As must be obvious from these […] criteria Crimea and the assessment perhaps is not too difficult, international law is clear – Crimea is occupied by the Russian Federation. However, in relation to Donbas the situation is more complicated. Ukraine must carry out a fact-finding exercise in order to collect proof to the military presence, the potential exercise of authority by the Russian Federation and the absence of the local authorities’ consent that is Ukraine’s consent, before concluding that Donbas is, in fact, an occupied territory. Asserting it as a political labeling is one thing, fact-finding to conclude that it is, in fact, an occupied territory is another. In this regard Ukraine may rely upon a wide variety of facts, these facts should be impartial, careful, accurate and verifiable,” Wayne Jordash added. To achieve that it is important to refer to the facts recorded by missions of the international organizations that are monitoring the situation in eastern Ukraine – the UN Human Rights Monitoring Mission in Ukraine and the OSCE Special Monitoring Mission to Ukraine.
Next steps are to use diplomatic, economic, judicial, and other tools to make sure that human rights are secured according to the provisions of international law. Besides that, Ukraine needs to assess the cases of incompliance with the international common law and with international agreements. Any case of such incompliance needs to be well-thought, proportional and necessary. Discrimination needs to be prevented including the discrimination of the population residing in the occupied territories. An efficient system needs to be ensured to monitor and document human rights violations in the areas not controlled by the government.
Ukraine needs to provide for the delivery of humanitarian aid to civilians on a permanent basis. “Common article 3 to all the four Geneva Conventions, articles 17, 23, 55 and 59 of Geneva Convention IV and rules 55 and 56 of customary international humanitarian law stipulate that humanitarian relief actions can be undertaken when the population of the conflict-affected territory suffers from the lack of supplies essential to its survival. The parties to the conflict, Ukraine, is obliged to allow and facilitate the free passage of these supplies,” Wayne Jordash emphasized.
Free movement of civilians needs to be secured from the uncontrolled to the government-controlled area and vice versa, to make sure that the people who remained in the occupied area get their social payments, Wayne Jordash added. “Ukraine when enacting laws must consider provisions that guarantee restoration of property to their return after the end of the conflict, compensation for any lost property and overall ensure the possibility that IDPs (internally displaced persons) can enforce and claim their property rights effectively,” he added.