The Armed Conflict in Ukraine and
Children’s rights
Catinca Iftime
LL.M. Thesis, International and European Law: Public International Law
Supervisor: Professor Liesbeth Zegveld
TABLE OF CONTENTS ABSTRACT………..……….…………...3 ABBREVIATIONS………...………...4 Chapter 1: Introduction ………...……..…...5 1.1. Research methodology ...………...……….………….7 1.2. Literature review………..……….………7
1.3. Background information of the Ukrainian armed conflict...………9
1.4. International response to the armed conflict in Ukraine ………,….……….………12
Chapter 2: Violation of children’s main rights ………...………..……...………….14
2.1. International legal framework providing protection of children during armed conflicts 14 2.2. The Ukrainian legislation………15
2.3 The Responsibility of Ukraine…...………….………...………....18
2.4. Assessment of children’s rights in Eastern Ukraine.……….………...19
Chapter 3: The right to education of children………21
3.1. International legal framework on the right to education……….………..21
3.2. Assessment of the right to education in Eastern Ukraine ……….…..24
Chapter 4: Children’s right to health and psychological well-being……….…………28
4.1. International legal framework.………...………..28
4.2. Assessment of the right to health and psychological well-being in Eastern Ukraine.…..29
Chapter 5: Children’s right to freedom and safety through child recruitment………….………..31
5.1. International legislation regarding children involved in armed conflicts.………….……31
5.2. Assessment of the right to freedom and safety in Eastern Ukraine ………….…….……34
Chapter 6: Conclusions and Recommendations……….40
ABSTRACT
During armed conflicts, it is almost impossible to respect all the obligations imposed by the in-ternational humanitarian law (hereby IHL) and inin-ternational human rights law (hereby IHRL). The number of casualties in the last 6 years in Ukraine has climbed to 40,000-43,000, including 12,800- 13,000 killed. Among these numbers, children are also included. Moreover, they were, and still are subject to gross violations of their rights such as right to life and adequate housing, right to health care, right to education, the right to family life. They are also affected by what is happening to the adults around them since teachers are killed, their families are sent away to participate in the battle-field, the health care workers are targeted and killed. In addition, they are exposed to sexual abuse, human trafficking, maiming by mines, direct or indirect involvement in armed conflicts, displace-ment, and death.
Therefore, the paper focuses on three grave violations of children’s rights (right to education, to health and psychological well-being and the right to freedom and safety) which take place in the area of the armed conflict of eastern Ukraine.
The findings lead to the conclusion that the rights of children to education, to health and psy-chological well-being, as well as to freedom and safety through child recruitment and use of chil-dren in illegal armed formations, in eastern Ukraine, have been grossly violated. Ukraine is respon-sible for the violation of these rights, outlined by international legal instruments which aim at pro-tecting children during armed conflicts.
Also, the paper underlines that children in the armed conflict area of eastern Ukraine are vic-tims of the conflict and for this reason Ukraine should ensure restitution and compensation for the damages suffered by the children. In addition, Ukraine has to cease breaching international obliga-tions and to make additional efforts, like implementing justice mechanisms and vigilantly monitor-ing the situation, in order to ensure education, safety and well-bemonitor-ing to its children.
ABBREVIATIONS
CRC Convention of the Right of the Child DPR Donetsk People’s Republic
HRW Human Rights Watch ICC International Criminal Court
ICRC International Committee of the Red Cross IDPs Internally Displaced Persons
IHL International Humanitarian Law IHRL International Human Rights Law JPD Justice for Peace in Donbas KhPG Kharkiv Protection Group LPR Luhansk People’s Republic NGO Non-governmental organization
OHCHR Office of the High Commissioner of the Human Rights OSCE Organization for Security and Co-operation in Europe SMM Special Monitoring Mission
UNESCO United Nations Educational, Scientific and Cultural Organization UNICEF United Nations International Children’s Emergency Fund
Chapter 1: Introduction
The international community is seriously concerned about the plight of children in many re-gions of the world because of disasters like armed conflicts. Ukraine has been facing new realities, since March 2014, when a military conflict has started in its south-eastern region. Realities like chil-dren without access to education and health assistance, because of the fighting, chilchil-dren emotionally and psychologically traumatized because of the aftermath of the war horror they witnessed, children soldiers, migrant children, orphan children who lost one or both parents in the conflict – all these mean violations of the rights of children. UN enumerate six grave violation against children during armed conflicts1, namely: 1) recruitment and use of children as soldiers; 2) killing or maiming of children; 3) sexual violence against children; 4) attacks against schools or hospitals; 5) abduction of children and 6) denial of humanitarian access.
Children’s rights are under risk because children are, first and foremost, the most vulnerable members of society, due to their age. They are directly affected by attacks, and under those circum-stances they cannot receive basic services, like care and relationship, medical aid, education, as their families and homes, also, schools, hospitals and other civilian infrastructure are destroyed or dam-aged. Also, children’s rights to freedom and safety are threatened, as they can be recruited in illegal or legal armed formations and as a consequence, a whole set of rights are breached like, right to ed-ucation, to health, to family; as well as they can become trafficked, abducted, they can suffer of hunger and other plights, they become orphans or remain without shelter.
In this paper we shall focus on the observance of the following rights of the child in eastern Ukraine: the right to education, the right to health and psychological well-being and the right to
safety and freedom. In addition, the paper will look at Ukraine’s legal efforts directed to protect the children’s rights during the armed conflict. In order to maintain the national security during armed conflicts, Ukraine has to respect and fulfil its legal obligations to protect civilians, especially
1
Office of the Special Representative of the Secretary-General for Children and Armed Conflict (2009, updated 2013). The Six Grave
Violation Against Children During Armed Conflict: The Legal Foundation,
https://childrenandarmedconflict.un.org/publications/WorkingPaper-1_SixGraveViolationsLegalFoundation.pdf, accessed on 10th of March 2019.
dren. Consequently, the paper will establish the responsibility of Ukraine in relation to the violation of these three rights.
Therefore, the problem statement of the study will read as follows: To what extent does the armed conflict in eastern Ukraine affect children’s rights in the area and did Ukraine manage to pro-tect children’s rights during the armed conflict?
Following this problem statement, other questions arose during the research for this topic, such as: Which are the main rights of the child which have been violated during the armed conflict in eastern Ukraine? Was the internal legislation of Ukraine updated to the international legislation, in order to protect children’s rights during the armed conflict? Is Ukraine responsible for the viola-tions of children’s rights?
Trying to answer the above-mentioned questions, throughout the study, we focused on several of the grave violations, mentioned by the UN, such as: attacks against schools or hospitals, which imply violation of children’s rights to education and health, also to psychological well-being, and the recruitment and use of children. We shall focus on the ways these rights have been violated as a result of fighting in the area, taking into account the unpreparedness of Ukraine, suddenly hit by an armed conflict. Subsequently, we examine the extent to which the above-mentioned rights – also called “the pillars of all humanitarian assistance for children in emergencies”,2 – have been respect-ed, based on the reports compiled by certain international organizations and non-governmental ac-tors active in eastern Ukraine. Also, we focus on violation of the right to freedom and safety of the child in eastern Ukraine, based on the cases of child recruitment and child involvement in military activities in the area, reported by the human rights organizations active in the conflict area.
The paper is divided in six chapters. The first chapter is an introduction to the situation in Ukraine and gives a short presentation of the armed conflict which started in February-March 2014. The second chapter explores the international legal framework designed to protect children’s rights. Also, this chapter analyses the international legal framework and the internal legislation of Ukraine regarding the protection of children, underlining the main laws which regulate children’s rights
2
tection in Ukraine. This chapter also looks at the responsibility of Ukraine for violating children’s rights. We also assess the ways these rights have been violated, as a result of fighting, shelling of buildings and important civil units (hospitals, schools and kindergartens), as well as a result of forced evacuation, mining territories, abusing and recruiting of children. The third chapter focuses more specifically on the right to education of children in the conflict area of Ukraine and the interna-tional legal framework on the right to education. Also the chapter analyzes the current situation in eastern Ukraine regarding the right to education. The fourth chapter refers to the violation of chil-dren’s rights to health and psychological well-being in eastern Ukraine and gives an assessment of the current situation on the right to health and well-being of the children in the conflict area. The fifth chapter tackles the situation of children’s rights to freedom and safety in eastern Ukraine and discusses the violation of these rights through child recruitment in the armed formations, with refer-ence to several reports compiled by international organizations and local human rights organizations on the protection of children’s rights in the armed conflict in eastern Ukraine. The sixth chapter pre-sents conclusions of this paper and underlines several recommendations aiming at ensuring a better protection of children’s rights in the case of Ukraine.
1.1. Research Methodology
This paper is based on a review of books, academic articles, analytical publications, interna-tional and Ukrainian legislation on the protection of the rights of the child. Also, it makes use of documents and reports of international missions and organizations, like the OHCHR & OSCE Moni-toring Committee on the situation in the affected area, as well as on the reports of the UN agencies and main human rights international organizations and non-governmental organizations (NGOs) ac-tive in eastern Ukraine, like UNICEF, UNHCR, WHO, ICRC, HRW, KhPG, JPD, etc.
1.2. Literature review
The books and academic works in the field of the protection of children’s rights in armed con-flicts we referred to in this paper, like Harvey (2003) and Maher (1989), gave us the general picture of children’s protection issue during armed conflicts.
We gave an overview of the legal protection of children in armed conflicts, with a brief ac-count of the two bodies of international law, i.e., International Humanitarian Law and International Human Rights Law, relying especially on Harvey (2003).
We took in consideration Maher’s (1989) point of view in clarifying the articles of the Four Geneva Conventions and its 1977 Protocols, stressing the need for more stringent policies to protect children, in comparison to Geneva Conventions. Also, we adhere to Stearns (2017), who defines the term “legal protection” for children.
A great source of inspiration for this thesis was Machel’s (1996) report for the UN Secretary-General about the “plight of children” affected by armed conflicts, which helped us to set up the problem statement and the objective of the study. Basically, we addressed three grave violations of children’s rights (right to education, to health and psychological well-being and freedom) and tried to find out to what extent were these rights have been violated in the area of the armed conflict of eastern Ukraine.
We relied upon Machel’s report in examining the examples of children’s rights violation in the south-eastern part of Ukraine and the need to monitor the situation. Also, we quote Machel in ana-lysing violation of the rights to education, to health and psychological well-being, and to freedom, rights called by Machel “the pillars of all humanitarian assistance for children in emergencies”.
In presenting the background of the armed conflict in Ukraine, we refer to the armed conflict in Ukraine and try to define it, referring to Szpak’s (2017) appreciations of the nature of the armed conflict. We focus also on Korzhov’s paper (2017). Both papers helped us to single out the type of the conflict in Ukraine. Also, we relied on Harvey (2003), here, who underlines the “international elements” of such conflicts.
To provide examples of children’s rights violation in south-eastern Ukraine, our research counts overwhelmingly on OSCE (2014-2018) and OHCHR (2014-2019), UNICEF, UNESCO, WHO, ICRC reports in the area. Also, the paper follows reports of HRW, Amnesty International, of some local NGOs, like reports of Justice for Peace in Donbas (2015-2016) and Kharkiv Protection Group (2014-2019).
Furthermore, we referred to certain Ukrainian laws, starting with the Ukrainian Constitution (articles that refer to children), also, we quote the amended law On Protection of Childhood (2001) or certain adopted laws, since the beginning of the armed conflict in eastern Ukraine in March 2014
(On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Temporarily Occupied
Ter-ritory of Ukraine (2014)), which underline the efforts made by the Ukrainian state to diminish
viola-tions of children’s rights.
Our findings lead to the conclusion that the rights of children to education, to health and psy-chological well-being, as well as to freedom and security through child recruitment and use of chil-dren in illegal armed formations, in the eastern part of Ukraine, have been grossly violated. This is a recurrent idea that leaps to the eyes throughout the mentioned reports.
Also, we underline that children in the eastern Ukraine are victims of the conflict and they must be protected because they represent the future of society and their protection should be con-stantly a priority of states.
1.3. Background information of the Ukrainian armed conflict
The political crisis erupted in Ukraine at the end of November 2013, when the Cabinet of Min-isters, by not signing an Association Agreement with the European Union, interrupted the course of the country towards European integration. Mass protests, called “Euromaidan”, in Kiev and throughout Ukraine, began. Following the events of Euromaidan, change of power took place in Ukraine. The former pro-Russian president Victor Yanukovych fled to Russia and as a result the op-position parties agreed on a new government and new presidential elections to be held in May 2014.
In the south-eastern part of Ukraine, part of the people was discontent with the new authorities and started protests against. The confrontation escalated with the annexation of the Crimea Peninsu-la (in February-March 2014) by the Russian Federation. Residents of south-eastern Ukraine who disagreed with the policies of the new authorities of Ukraine used tactics of Euromaidan activists, blocking and occupying administrative buildings, creating alternative local authorities. They took control of several administrative buildings in Donetsk, Luhansk and Kharkiv regions, in particular, the buildings of Donetsk Regional State administration and the main building of the Security Ser-vice of Ukraine in Luhansk. They were inspired by the outcome of the Crimean events and moved to active resistance. Consequently, the so-called Donetsk People’s Republic (DPR) and Luhansk Peo-ple’s Republic (LPR) were formed.
The self-proclaimed authorities declared that their „states” faced direct armed aggression on behalf of Ukraine, which aimed at suppressing their sovereignty. Moreover, the head of the so-called Donetsk People’s Republic did not recognize the new government of Ukraine.
The new authorities of Ukraine declared that the wave of protests in the South-East was a manifestation of separatism under the cover of the Russian military and a threat to the existence of the Ukrainian state.3 The new Ukrainian government, intending to prevent the repetition of the Cri-mea events, took the course of forceful actions against the opponents in the eastern part of the coun-try. Verkhovna Rada (Parliament) of Ukraine adopted a resolution recognizing certain districts, cit-ies, towns and villages of Donetsk and Luhansk regions as temporarily occupied territories.4
Fighting takes place between the government armed forces, on the one hand, and non-government rebel formations (mostly supporters of the self-proclaimed DPR and LPR), on the other. In addition to the government regular military formations of Ukraine, irregular and semi-regular volunteer militias also take part in fighting against supporters of the DPR and LPR.
According to the latest OSCE Special Monitoring Mission (SMM) to Ukraine Report dated 9 May 2019, both parts in conflict, the government-controlled forces and the non-government-controlled forces have repeatedly violated the ceasefire, in Donetsk, as well in Luhansk. Also, the Mission’s access was denied in the areas of disengagement. Some progress was achieved in demining some territories and ensuring operation of water stations in Donetsk.5
In 2014, Amnesty International qualified the events as an international armed conflict,6 in which Russia participates both by its support for the rebels and by direct military intervention.
3
BBC, ‘Russian troops deployed’ in Ukraine – Petro Poroshenko, https://www.bbc.com/news/world-europe-28967526. accessed on 15th of March 2019.
4
Law of Ukraine, On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Temporarily Occupied Territory of Ukraine, April 27 2014, https://zakon.rada.gov.ua/laws/anot/en/1207-18,accessed on 10th of March 2019.
.
5
OSCE, Latest from the OSCE Special Monitoring Mission to Ukraine (SMM), based on information received as of 19:30, 9 May
2019, https://www.osce.org/special-monitoring-mission-to-ukraine/419267, accessed on 10th of March 2019.
6 Amnesty International, Ukraine: Mounting Evidence of War Crimes and Russian Involvement, 7 September 2014,
https://www.amnesty.org/en/latest/news/2014/09/ukraine-mounting-evidence-war-crimes-and-russian-involvement/.accessed on 10th of March 2019.
According to the International Committee of the Red Cross (ICRC), the armed conflict in the eastern part of Ukraine is “non-international”. The Committee “urged all sides to comply with inter-national humanitarian law, otherwise known as the law of armed conflict”7.
Human Rights Watch (HRW) stated:
“…hostilities between Ukrainian government forces and armed insurgent forces identifying themselves as the South-East Army and the Donetsk People’s Army constitute an internal or
non-international, armed conflict under international humanitarian law (the laws of war)”. 8
Also HRW supports the view that:
„… hostilities between Russian armed forces and Ukrainian armed forces constitute an inter-national armed conflict between Ukraine and Russia, governed by interinter-national humanitarian treaty law (primarily the four Geneva Conventions of 1949 and its first additional protocol of 1977 (Protocol I), and the Hague Conventions of 1907 regulating the means and methods of warfare), as well as the rules of customary international humanitarian law. Both Ukraine and
Russia are parties to the 1949 Geneva Conventions and Protocol I”.9
The International Criminal Court (ICC), in November 2016, taking into account the fighting in eastern Ukraine, stated:
“shelling by both States of military positions of the other, and the detention of Russian mili-tary personnel by Ukraine and vice-versa, points to direct milimili-tary engagement between Rus-sian armed forces and Ukrainian government forces that would suggest the existence of an
7
ICRC, Ukraine: ICRC calls on all sides to respect international humanitarian law, 23 July 2014,
https://www.icrc.org/en/doc/resources/documents/news-release/2014/07-23-ukraine-kiev-call-respect-ihl-repatriate-bodies-malaysian-airlines.htm. accessed on 10th of March 2019.
8 Human Rights Watch, Eastern Ukraine: Questions and Answers about the Laws of War, 11 September 2014,
https://www.hrw.org/news/2014/09/11/eastern-ukraine-questions-and-answers-about-laws-war, accessed on 10th of March 2019.
9
ternational armed conflict in the context of armed hostilities in eastern Ukraine from July 14 2014 at the latest, in parallel to the non-international armed conflict”.10
There is also an opinion that the armed conflict in Ukraine is “international between Ukraine and Russia, in the case of Crimea, and non-international between Ukraine and pro-Russian sepa-ratists”.11
We agree in this point with Harvey (2003), who underlines that such conflicts contain “an in-ternational element”,12 and, consequently, they extend to nearby states, by multitude of refugees, and states are involved financially, economically and socially. The military conflict, developed in the south-east of Ukraine since February-March 2014, has led to large-scale violations of the rights of civilians, including children.
1.4. International response to the armed conflict in Ukraine
Ukraine, the United States and several other states, as well as NATO, Parliamentary
Assem-bly of the Organization for Security and Co-operation in Europe, the Council of Europe and the Eu-ropean Union accuse the Russian Federation of intervening in the conflict. In particular, they accuse the use of regular troops in combat actions on the side of the rebels, the supply of arms and financial support. The Russian leaders have consistently rejected both accusations of participation in hostili-ties and of supply of weapons to rebels, stating that Russia is not a party in the confrontation.13
10
ICC, Report on Preliminary Examination Activities 2016, p.35, https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-pe_eng.pdf
accessed on 15th of March 2019.
11 Szpak, A. (2017), “Legal classification of the armed conflict in Ukraine in light of international humanitarian law”, in Hungarian Journal of Legal Studies 58, No. 3, pp.261-280, https://akademiai.com/doi/pdf/10.1556/2052.2017.58.3.2 accessed on 10th of March 2019.
12
Harvey, R. (2003), A Guide to International Humanitarian and Human Rights Law, International Bureau for Children’s Rights, p.5,
https://www1.essex.ac.uk/armedcon/story_id/000044.pdf, accessed on 10th of March 2019. 13
Tlis, F., Is Russia Not ‘A Party’ in Ukraine Conflict, as Kremlin Claims?, Polygraph.info, 1 March 2017,
Ukraine declares a priority the need to establish international control over the border between the unrecognized republics and Russia as a key condition facilitating the return of these territories to the Ukrainian state.14
The international community is trying to solve the conflict through diplomatic means, through international consultations, mediation and multilateral meetings and negotiations15. A recent United Nations news release reports that since the beginning of the armed conflict in the Donetsk and Luhansk regions,
“the number of affected people remains as high as 5.2 million, according to the Humanitarian Country Team estimates. About 1.3 million internally displaced persons (IDPs) are registered by the Ministry of Social Policy as of March 2014”. 16
To sum up, the end of the conflict is difficult to predict as the cease-fire agreements has been constantly violated by both parts.
14
Law of Ukraine, On Ensuring Civil Rights and Freedoms… https://zakon.rada.gov.ua/laws/anot/en/1207-18,accessed on 10th of March 2019.
15
In particular, it should be noted the following diplomatic means:
- The Geneva Statement on Ukraine signed on April 17, 2014, in Geneva by representatives of the United States, Russia, the EU and Ukraine;
- Meetings of the contact group on Ukraine of representatives of Ukraine, Russia and the OSCE, which resulted, in particular, in the Minsk Protocol of September 5, 2014;
- Meetings of the “Norman Four”, the leaders of Germany, France, Ukraine and Russia, which resulted in the 2nd Minsk Agreement of February 12, 2015.
16 United Nations, Ukraine, Five years into the conflict: displaced people in Ukraine need long-term solutions to housing and
em-ployment challenges, 9 April 2019, http://www.un.org.ua/en/information-centre/news/4661-five-years-into-the-conflict-displaced-people-in-ukraine-need-long-term-solutions-to-housing-and-employment-challenges, accessed on 10th of March 2019.
Chapter 2: Violation of children’s main rights
2.1. International legal framework providing protection of children during armed conflicts
Child protection has been a constant concern of the international community beginning espe-cially with the second half of the 20th century. Children are among the most vulnerable victims of armed conflicts and of their aftermath. That is why a number of international law norms are aimed at ensuring the legal protection of children in situations of armed conflicts. Stearns (2017) explains what “legal protection” means in this context: “to allow full physical, mental, and spiritual devel-opment of the child”17. We fully abide by this meaning of the term “legal protection”.
Under IHRL and IHL states have an obligation to protect and respect the human rights of all individuals, including adults and children. Children’s rights are part of the human rights and there-fore, States must protect and respect equally, like the adult’s rights.
According to Hampson18, IHL provides children in international armed conflict with two types of protection: general and special. General protection implies that children, as part of the civilian population, have the right to humane treatment. The following actions against children are prohibit-ed: life-threatening actions, ill-treatment, taking children into hostage, offensive and humiliating treatment. The special protection of children assumes that children are provided protection and as-sistance required by their age. During the war, they must be protected from the grave aftermath – abuse and violence, loss of communication with the family, hunger, homelessness.
Article 77 of the Additional Protocol I states that “children shall be the object of special re-spect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other rea-son.” This article emphasizes the importance of protecting children’s rights and imposes an obliga-tion on the Parties involved in the conflict to respect the provision. The article highlights the
17
Stearns (2017). History of Children's Rights in Ruck. D. M. et al. (eds.) (2017). Handbook of Children's Rights. Global and Multi-disciplinary Perspectives, New York & London, Routledge, p. 14.
18 F.J., Hampson (1996). Legal Protection Afforded to Children under International Humanitarian Law. Report for the study on the
impact of armed conflict on children, University of Essex, UK, https://www1.essex.ac.uk/armedcon/story_id/000578.html accessed on 20th of March 2019.
portance of protecting children’s rights during armed conflict by using the word “special”19 and re-spectively establishes the principle of special protection of children during armed conflict20. Also, the care and aid that children require during armed conflicts refer to the need to provide education, to receive medical care, to be reunited with their families and to be removed from the conflict zones to safer areas21.
The Convention on the Rights of the Child 1989 is considered to provide the most comprehen-sive protection for children in peacetime and during armed conflicts.22 This protection includes: es-sential care and assistance; access to health, food and education; protection of the family environ-ment; prohibition of torture, abuse and neglect, not in the last, prohibition of death etc. No hierarchy between the rights is mentioned in the treaty which means that each right is equally important and therefore should be equally respected and protected by States. The most relevant article for this sub-ject matter is article 38 of CRC, which affirms the protection of children affected by the armed con-flict. Subsequently, this article makes CRC unique in the international human rights system, by in-cluding an article originally subject to international humanitarian law23. It is worthy to mention, that none of the provisions of the CRC are subject to derogations in times of national emergencies, such as armed conflicts.
2.2. The Ukrainian legislation
Protection of the rights of the child is one of the most acute problems in Ukraine at present and the state is obliged to ensure the protection of children and to create material, organizational, social and political conditions for the full realization of the rights of the child.
19
Dixit, R.K. (2001). Special Protection Of Children During Armed Conflicts Under The Geneva Conventions Regime, ISIL Year Book of International Humanitarian and Refugee Law http://www.worldlii.org/int/journals/ISILYBIHRL/2001/2.html, accessed on 20th of March 2019.
20 Ibid. 21
Harvey, R. (2003). A Guide to International Humanitarian and Human Rights Law, International Bureau for Children’s Rights.
https://www1.essex.ac.uk/armedcon/story_id/000044.pdf , p. 27 accessed on 20th of March 2019.
22 Ibid.
23 Helle, D. (2000) Optional Protocol on the involvement of children in armed conflict to the Convention on the Rights of the Child,
International Review of the Red Cross, No. 839, https://www.icrc.org/en/doc/resources/documents/article/other/57jqqe.htm, accessed on 20th of March 2019.
By ratifying the UN Convention on the Rights of the Child 1989 (CRC), States parties commit themselves to bring their legislation in line with the provisions of the treaty. Ukraine ratified the Convention of the Rights of the Child in February 1991.
We refer also to the Ukrainian Constitution, adopted in June 1996, in order to show that the main law of this country ensures protection and respect of the rights of all its citizens, including children, and there is a basic legal framework for the protection of the children’s rights. Therefore, we underline first of all Article 52 of the Ukrainian Constitution, that refers to children and their protection by the state when they are exposed to risk: “Children are equal in their rights regardless of their origin and whether they are born in or out of wedlock. Any violence against a child, or his or her exploitation, shall be prosecuted by law. The maintenance and upbringing of orphans and chil-dren deprived of parental care is entrusted to the State. The State encourages and supports charitable activity in regard to children”.24 This article re-affirms the principle of non-discrimination25 estab-lished by the CRC.
Article 3 of the Constitution of Ukraine recognizes “as the highest social value” the human be-ing’s “life and health, honor and dignity, inviolability and security”. This article also provides that the main duty of the State is “to affirm and ensure human rights and freedoms”. Further on, Article 21 stipulates that “All people are free and equal in their dignity and rights” and that “human rights and freedoms are inalienable and inviolable”. Hence, the protection of children in the Ukrainian leg-islation is ensured through the protection of human being’s rights which includes also the rights of children.
Also, protection of the rights of the child in Ukraine is ensured by the law On Protection of
Childhood, adopted in June 2001, which defines the protection of childhood as a “national strategic
priority”. 26
This law guarantees the protection of the rights of the child “to life, healthcare, educa-tion, social security and comprehensive development”.27
24
Constitution of Ukraine, https://www.wipo.int/edocs/lexdocs/laws/en/ua/ua013en.pdf,accessed on 20th of March 2019 .
25
Article 2.1, United Nations Convention on the Rights of the Child.
26 Ukrainian Law (2001). On Protection of Childhood, Abstract, https://zakon.rada.gov.ua/rada/anot/2402-14?lang=en, accessed on
20th of March 2019.
27
Because of the armed conflict in its eastern region, Ukraine had to adopt new laws and new amendments to laws, to create new institutions, in its efforts to protect children’s rights. So far, Ukraine made efforts to ensure the rights to education of the displaced children and of those who reside in the occupied territories by adopting amendments of the law On Ensuring Civil Rights and
Freedoms, and the Legal Regime on the Temporarily Occupied Territory of Ukraine.28,29,30
In January 2016, the Ukrainian Parliament adopted the Law “On Amendments to Certain Laws
Concerning Strengthening Social Protection of Children and Supporting Families with Children”.
The law aims at bringing the current legislation in line with the UN Convention on the Rights of the Child. In particular, this law defines such concepts as “ensuring the best interests of the child”, “children who are in difficult life circumstances”, “children who have suffered as a result of hostili-ties and armed conflicts”.
In January 2015, the Inter-Fractional Working Group “Child Rights Protection is Priority of the State” in the Verkhovna Rada was set up,31 which aims at examining the situation of children’s rights in the armed conflict area, especially the situation of displaced children. Subsequently, in Sep-tember 2017, the National Children’s Council was established at the Office of the Presidential En-voy of Ukraine on the Rights of the Child.
Despite all the recent improvements in the Ukrainian legislation, Ukraine still lacks “a unified system for observance and protection of the rights of the child”.32 Also, the “improvement of the
28
On amendments to Article 7 of the Law of Ukraine On Ensuring Civil Rights and Freedoms, and the Legal Regime on the
Tempo-rarily Occupied Territory of Ukraine, regarding the right to education (2014): https://zakon.rada.gov.ua/laws/anot/en/1207-18 ac-cessed on 20th of March 2019.
29
"On Amendments to Article 7 of the Law of Ukraine "On Ensuring Civil Rights and Freedoms, and the Legal Regime on the Tem-porarily Occupied Territory of Ukraine" Regarding the Right to Education” https://zakon.rada.gov.ua/laws/anot/en/1237-18 . accessed on 20th of March 2019.
30
Ibid.
31
Ukrainian Child Rights Network, Inter-fractional Working Group named “Child Rights Protection is a Priority of the State” 2015,
http://childrights.org.ua/en/news/mizhfrakciine_deputatske_obednannia_pavlenko accessed on 20th of March 2019 . 32
Action Plan on Implementation of the National Strategy in the Area of Human Rights for the Period until 2020, https://rm.coe.int/16806985fe, accessed on 20th of March 2019.
state mechanism for ensuring children's rights”33 is still considered an urgent problem for this coun-try.
2.3. The responsibility of Ukraine
Under IHRL, States and respectively parties of an armed group have a particular obligation to respect and protect the human rights of persons and to abstain from violating their human rights. In the same way, IHL provides norms which require states’ responsibility to ensure protection to those affected by the armed conflict.
As a general rule, international norms affirm that once a state is violating its international ob-ligations, it should be held accountable for its acts34. In other words, a state which will not respect its international obligations is responsible for its acts, and “measures to stop, repress and redress”35 the violation should be applied. Saying this, Common Article 1 of the Four Geneva Convention require States to ensure respect for the rules of war. This obligation to respect the norms of IHL implies that States should do everything to guarantee that its own bodies abide by these rules36.
When it comes to the rights of children, States have an obligation to respect, protect and fulfil. The obligation to respect implies States to not take any measure that would deprive children to have access to education or to health care. The responsibility to protect children require States to ensure that their rights are not infringed by third parties; in cases of violation of their rights, States should punish and redress any action against children’s life, against their basic necessities such as health and educational facilities. Finally, the obligation to fulfil requires States to take all necessary
33
Ibid.
34
Sassoli, M. (2002). State responsibility for violations of international humanitarian law, IRRC, Vol 84, No 846 https://www.icrc.org/en/doc/assets/files/other/401_434_sassoli.pdfaccessed on 5th of July 2019.
35 Ibid. 36
Dormann, K. and Serralvo, J (2005). Common Article 1 to the Geneva Conventions and the obligation to prevent international
humanitarian law violations, IRRC No 895/896, https://www.icrc.org/en/international-review/article/common-article-1 accessed on 5th of July 2019.
tive and judicial measures in order to guarantee the enjoyment of their rights, especially during armed conflicts37.
All actions taken by States regarding children during the armed conflict should be taken in their best interest38. In addressing the best interest of children, States should make all efforts to at-tain a balance between child’s right to protection and other rights, such as the right to life, the right to food, the right to education, the right to physiological well-being and to freedom and safety. Consequently, Ukraine must take all measures to protect its children in the armed conflict area.
2.4. Assessment of children’s rights in Eastern Ukraine
The flagrant violations of children’s rights in the affected area of Ukraine are completely new phenomena for this country. In order to have a clear picture of the situation in the fighting area, we refer to a report39 of the Office of the United Nations High Commissioner for Human Rights (OHCHR), dated December 15, 2014, which states that the situation in the first months of the con-flict was characterized by a complete lack of law and order, continued violence and ongoing fighting, by means of the heavy and modern weapons and manpower coming from abroad, including from Russia.
The hard facts of a recent UNICEF report show that, as a result of the armed conflict in the eastern part of Ukraine, children were more or less affected by the military actions in the region of Donbas.40 According to official figures, 68 children died, 186 were injured during the conflict.41 The report also shows that 232,742 children in the region have been registered as internally dis-placed persons (IDPs). These figures are not final, as long as the conflict continues.
37
Sassoli, M. (2002) State responsibility for violations of international humanitarian law, IRRC, Vol 84, No 846
https://www.icrc.org/en/doc/assets/files/other/401_434_sassoli.pdf accessed on 5th of July 2019. 38
Article 3 of the United Nations Convention on the Rights of the Child 1989.
39
The 8thOHCHR Report (2014). Report on the human rights situation in Ukraine 15 December 2014, p. 9,
https://www.ohchr.org/Documents/Countries/UA/OHCHR_eighth_report_on_Ukraine.pdf, accessed on 20th of March 2019.
40 “Donbas” is a historical term referring to the areas of Luhansk and Donetsk in south-eastern part of Ukraine. 41
UNICEF Press release (2016). Two years on, Ukraine conflict affects over half a million children,
“Two years of violence, shelling and fear have left an indelible mark on thousands of children
in Eastern Ukraine”, 42 said Giovanna Barberis, UNICEF Representative in Ukraine.
The above-mentioned statistics show clear-cut evidence that children’s rights have been con-stantly violated and, for this reason, the issue of protecting the rights of the child during the armed conflict in Ukraine has become an increasingly important issue, requiring close attention, calling for vigilant monitoring and exigence in ensuring the practical application of existing norms designed to protect children.
According to another 2014 OHCHR report, the following actions took place in the area of con-flict during one month alone: indiscriminate43 shelling of built-up areas, shelling of schools and football pitches, shelling of villages (e.g., Horlivka and Toshkivka), shelling and hitting a minibus in Donetsk.44 All these actions killed and wounded civilians, among them many women and children. To date, the situation did not improve much. One of the latest OHCHR reports shows:
“Damages to houses, water and sanitation facilities and schools, as well as an insecure envi-ronment that prevents people from moving within communities, continue to affect millions of innocent civilians”.45
The main rights of the child which have been violated or put in danger in this very conflict are: first of all, the right to life46, the right to education47, the right to physical, mental, spiritual and so-cial development48, the right to first medical assistance and health care and psychological
42
Ibid.
43
According to the human rights group, Justice for Peace in Donbas, active in eastern Ukraine, indiscriminate attacks “employ meth-ods or means of warfare that cannot be directed at a specific military object and which, therefore, in each such case, hit military ob-jects and civilians or civilian obob-jects indiscriminately”, Justice for Peace in Donbas (2016). Health Care Facilities in the ATO zone.
The use of prohibited warfare methods and means with respect to health care institutions in the East of Ukraine, HDIM, Warsaw,
http://www.hfhr.pl/wp-content/uploads/2017/03/Healthcare-facilities.pdf accessed on 25th of March 2019. 44
The 8thOHCHR Report (2014).
45
OHCHR Report (1 May 2019), p.2, https://reliefweb.int/sites/reliefweb.int/files/resources/Situation%20Report%20-%20Ukraine%20-%201%20May%202019.pdf,accessed on 25th of March 2019.
46 Article 6 of the United Nations Convention on the Rights of the Child 1989. 47
Article 28 of the United Nations Convention on the Rights of the Child 1989.
48
ery49, the right to freedoms50.51 All the factual examples stated above had a direct impact on basic human rights, including the safety, freedom and welfare of the local population and of the children, first and foremost.
Chapter 3: The right to education of children in the conflict area of Ukraine 3.1. International legal framework on the right to education
It has been unanimously accepted that education contributes to the development of a safe and balanced society by generating good citizens. According to international standards, basic general education is mandatory, as, without it, normal human socialization in a modern society is impossi-ble. Thus, under international law, the access to education of each individual or group of individuals depends on states that are under an obligation to provide a propitious environment for its realization.
In most of the cases, during armed conflicts, states cannot respond properly to education needs of individuals. However, in such circumstances, states’ responsibility to maintain the access to edu-cation does not cease and, moreover, states must consider it as a priority.52 Education is a determin-ing factor in the formation of a person and of his own personal, civil, political, legal and moral cul-ture.
International legal instruments describe education as an “inalienable human rights”53 which comes to strengthen the importance of ensuring continued education including in situations of armed conflicts. The right to education represents a key concern in relation to children affected by armed conflicts. Therefore, Article 77 of Additional Protocol I gives special protection to all the children affected by an armed conflict, underlining that:
49
Articles 24 and 39 of the United Nations Convention on the Rights of the Child 1989.
50 Articles 13, 14, 15, 29 of the United Nations Convention on the Rights of the Child 1989. 51
UN (1989), Convention on the Rights of the Child, https://www.unicef.org/sites/default/files/2019-04/UN-Convention-Rights-Child-text.pdf,accessed on 25th of March 2019.
52
Hyll-Larsen, P. (2010). The Right to education for children in violent conflict Background paper prepared for Education for all Global Monitoring Report 2011, https://unesdoc.unesco.org/ark:/48223/pf0000191225, accessed on 25th of March 2019. 53
Universal Declaration of Human Rights 1948, https://www.ohchr.org/en/udhr/documents/udhr_translations/eng.pdf, accessed on 25th of March 2019.
“Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason”.54
The article does not refer specifically to education; however, it implies that all children should be provided with all the necessary facilities which will help them to continue education during an armed conflict.
A report published by UNESCO (2013)55 states that 28.5 million primary school age children are out of school in conflict-affected countries. This large number might be explained by various factors such as inconsistent funding and administrative support56 from governments during armed conflict, reduced enrolment and attendance57, poor schooling conditions. Attacks on education rep-resent actions against students, educational stuff and educational institutions. However, all children should continue to receive a minimum level of education during an armed conflict. Providing educa-tion in a conflict affected environment can offer particular basic skills which are necessary for a child’s survival living through crisis.
Under international humanitarian law no right to education is established. However, there are specific rules which aim at guaranteeing the right to education58 during armed conflict, such as the principle of distinction between civilians and those taking part in hostilities, and between civilians and military objects. Consequently, students, teachers and all other civilians who may be located in a school are protected as long as they do not take an active part in the hostilities, under Article 51 of the Additional Protocol I. In the same way, schools are protected from attacks as long as they do not serve as military objectives to support military action. Parties to a conflict are under obligations to respect human rights, since human rights continue to apply during armed conflicts.
54
ICRC (2010). Protocols to the Geneva Conventions of 12 August 1949 Additional to the Geneva Conventions of 12 August 1949,
https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf accessed on 25th of March 2019.
55 UNESCO, Education for All Global Monitoring Report (2013). Children still battling to go to school,
https://unesdoc.unesco.org/ark:/48223/pf0000221668 accessed on 25th of March 2019.
56
Machel, G., Ten Recommendations, https://static.unicef.org/graca/10rex.htm, accessed on 10th of March 2019.
57
Nicolai, S., Triplehorn, C. (2003). The role of education in protecting children in conflict, Humanitarian Practice Network, London,
https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/520.pdf, accessed on 25th of March 2019. 58
Article 38, 72, 125 from Geneva Convention III, Articles 13, 24, 50, 94, 108, 142 Geneva Convention IV, Article 78 AP I, Article 4(3)(a) AP II, Rules 38, 40, 135 CIHL. Many of these rules aim at protecting students, education stuff and education facilities.
In comparison with IHL, IHRL has broader application which includes situations at peace but also during armed conflicts. Therefore, the right to education is also an element of the human rights system and it is guaranteed by society and its institutions, first and foremost, by the state. In the human rights system, the right to education has a special place. It belongs to the totality of funda-mental human rights and freedoms. This right is included in international human rights norms, and is reflected in Part 1 of Article 26 of the Universal Declaration of Human Rights (1948), UNESCO Convention Against Discrimination in Education (1960), Part 1 of Article 13 of the International Covenant on Economic, Social and Cultural Rights (1966), and, in particular, in the European norms, like Article 2 of Protocol No. 1 to the 1950 European Convention for the Protection of Hu-man Rights and Fundamental Freedoms (1952), Article 14 of the European Union Charter of Fun-damental Rights (2000).
Protocol No. 1 (1952) , Article 2, underlines, in particular the universality of the right to edu-cation (no one can be denied this right), the important role and function of the state in the field of education and the duty of the state with respect to religious and philosophical beliefs of parents.59 The right to education is an integral right, which, in varying degrees, can be attributed to various groups of human rights and freedoms – social, cultural, civil. It is social because education is one of the leading social subsystems of society. At the same time, it is a cultural right, since only through education a person joins various aspects of the culture of humankind in general and national culture in particular. And it is personal as it is an empowerment right and contributes to personal develop-ment.
The right to education requires from States three level of obligation namely the obligation to respect, protect and fulfil. It follows that States have an obligation as long as they are party to a trea-ty which includes the right to education to take all necessary measures to achieve its full realization.
59 Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol no. 11, Paris, 1952, https://www.echr.coe.int/Documents/Library_Collection_P1postP11_ETS009E_ENG.pdf accessed on 25th of March 2019.
In short, the basic need to protect the children during an armed conflict requires their rights to be fulfilled through both the implementation of international humanitarian law and human rights law. The following section will discuss cases of violation of the right to education in Ukraine.
3.2. Assessment of the right to education in Eastern Ukraine
Ukraine considers a pressing problem ensuring adequate access to education to children in the affected by the armed conflict area. In the Constitution of Ukraine, Article 53 states: “Everyone has the right to education” and consequently ensures “accessible and free pre-school complete general secondary, vocational and higher education”. Also, Article 3 of the Law On Education stipulates: “Every person has a right to high-quality and affordable education”. More recently, by setting up the Action Plan on Implementation of the National Strategy in the Area of Human Rights for the Period until 2020, the Ukrainian state is committed to establishing “favorable environment for upbringing, education, development of children and efficient system for enjoyment of their rights”. 60
However, as long as the armed conflict in the east of the country continues, the Government’s ability to properly address the issue of equal rights to education in the regions of Donetsk and Luhansk is limited. These territories not controlled by the government are officially declared as temporarily occupied.61 This means that the monitoring of the human rights situation in the area is drastically limited. Even the OSCE Special Monitoring Mission to Ukraine reported limited access in the disengagement areas.62
The access to education in the area has been constantly hampered by the permanent insecure environment. According to a report based on the monitoring of the situation in the region of Donbas, children’s rights to education and to safe environment have been violated. The Kharkiv Protection
60 Decree of the President of Ukraine no. 501 (2015), On Approval of the National Human Rights Strategy of Ukraine,
https://rm.coe.int/16806985fe, accessed on 25th of March 2019.
61
Decree of the Verkhovna Rada (2015). On recognizing certain regions, cities and villages of the Donetsk and Luhansk oblasts as
temporarily occupied territories.
62 European Parliament (2018). Human rights in Ukraine and the EU response, including relevant activities of the European Parlia-ment, http://www.europarl.europa.eu/RegData/etudes/STUD/2018/603834/EXPO_STU(2018)603834_EN.pdf, accessed on 25th of March 2019.
Group (KhPG) took account of the fact that, in two towns, Lopaskino and Lobachevo, controlled by Ukraine, there were no proper schools and children had to cross a river every day to the uncontrolled by the government area to attend school.
The 6th OHCHR Report speaks of the violation of the rights to education of children in two big cities, Kyiv and Odessa, with high numbers of internally displaced persons. In Kyiv, 8,000 pre-schoolers and in Odessa, 10,000 prepre-schoolers had no places in kindergarten, though the Ukrainian Ministry of Education and Science reported that no problems occurred. Also, another problem was to cover the salaries of the additional staff.63 In the village areas of the eastern Ukraine, children also had difficult access to education facilities, because many school buses were used in the military op-erations. Also many children could not attend schools or schooling was limited because of the de-struction of school buildings and insecurity of the landmines64.
In September 2017, Ukraine joined the Safe School Declaration, pledging to take measures to ensure that education can continue even during an armed conflict. On the occasion of a round table discussion, Giovanna Barberis, UNICEF Representative in Ukraine said:
“Approximately 200,000 conflict-affected children, youth, and educators from Eastern Ukraine need safe and protective schools to learn and recover. Joining the Declaration would demonstrate to the whole world Ukraine’s deep commitment to the provision of safe and high quality education to all Ukrainians especially in the light of reforms”. 65
Besides these disasters, which disrupted children’s access to education, attacks on school stu-dents, teachers and other educational personnel happened in the non-government controlled area. Also schools were used for military purposes, like storing weapons in or near school buildings or accommodating fighters in educational facilities. Sometimes, students had to be evacuated. At least seven reports of military use of schools were issued during 2017.66 Ukraine is party to international
63
OHCHR, 6th Report, 15 November 2014, https://www.ohchr.org/Documents/Countries/UA/OHCHR_sixth_report_on_Ukraine.pdf , accessed on 25th of March 2019.
64
Ibid.
65 UNICEF, Children’s right to education should be protected at all times, especially during armed conflict, 28 September, 2017, https://www.unicef.org/ukraine/media_31436.html accessed on 25th of March 2019.
66
treaties which aim at protecting both children’s right and the right to education. Therefore, the use of schools as military objectives means flagrant violations of human rights on the part of the state re-sponsible to provide education.
Based on the above data, the conclusions are the following: in eastern Ukraine, in the territo-ries occupied by the non-governmental forces, children encounter regularly many types of violations of the right to education. These types of violations include: the education process is disturbed be-cause of the fighting; many school buildings were destroyed or partially damaged by bomb shelling and children have to stop temporarily their education or to continue studying in improper equipped buildings.
The Ukrainian Ministry of Education and Sciences have signed the Safe School Declaration and is committed to support children in impossibility to have access to education. However, its au-thority is limited in the south-eastern part of the country, where children are under the jurisdiction of the so-called Donetsk People’s Republic and Luhansk People’s Republic. Help and assistance is left on the shoulders of the humanitarian and human rights international and national groups active in the area of conflict.
As it can be seen from the above analysis, several times, schools, pupils and teachers have been the objects of acts of violence. However, much is expected to be carried out in the area of providing education to all affected children, as according to the report of the Coalition for the Rights of the Child in Ukraine:
“public and international organizations are constantly recording violations of the legislation regarding observance of the rights of children in specialized residential care facilities, regis-tration of children as internally displaced persons, procedure of receiving targeted aid by IDP
children, implementation of the right to education and medical aid.”67
67
Yasenovska, M. (2016). Rights of the Child, Coalition for the Rights of the Child in Ukraine, https://helsinki.org.ua/en/rights-of-the-child/ accessed on 6th of April 2019.
Kharkiv Protection Group (KhPG) complains that many law provisions regarding the rights of children in Ukraine remain “purely declarative”.68 This group underlines that regarding the protec-tion of the best interest of children in Ukraine much is to be done by the state:
“ (…) no comprehensive analysis of the state policy and programs is carried out with respect to observing the best interests of the child as well as assessment of impact that such actions have on children”. 69
Also, according to the Ukrainian Parliament Commissioner for Human Rights Report (2016), 1,114 reports of violations of children’s rights were received in 2015, and the most frequent peti-tions to the Commissioner were violapeti-tions of children’s rights to education, health, housing, child support.70
From the above factual examples, we can conclude that children suffer major violations of their rights to access to education in eastern Ukraine71. All these breaches of children’s human rights come to stress the need to maintain the application of international treaties in order to protect educa-tion in situaeduca-tion of crisis. Furthermore, Ukraine needs to strengthen the monitoring of the ob-servance of children’s rights to education in the conflict area.
68
Ibid.
69
KHRPG, Human Rights in Ukraine 2014, Children’s rights, http://khpg.org/en/index.php?id=1433499467, accessed 6th of April 2019.
70
The Ukrainian Parliament Commissioner for Human Rights (2016). Annual Report of the Ukrainian Parliament Commissioner for
Human Rights on the state of observance of human and citizens’ rights and freedoms. Summary 2016, Kyiv.
https://www.undp.org/content/dam/ukraine/docs/DG/Ombudsman's%20project/2015%20annual%20report%20of%20Ombudsperson. %20Summary.pdf, accessed 6th of April 2019.
71
The Article 28 (a) of the CRC and the Article 53 of the Ukrainian Constitution, when children could not attend kindergarten because of danger of mines or fighting, or when they overcrowded schools or their schools have been used in military purpose.
Chapter 4: Children’s right to health and psychological well-being
4.1. International legal framework
The World Health Organization (WHO), in its constitution, defines health as a state of com-plete physical, mental and social well-being and not merely the absence of disease or infirmity72. The wording of the definition emphasizes that the physical, mental and social well-being should be-come a goal towards which all of the actors of a society should work upon it. In addition, this defini-tion becomes even of a greater importance when there are emergencies situadefini-tions, such as armed conflicts.
Children exposed to armed conflicts suffer both mental and physical harm that can affect them across their entire life. Such harm can involve physical injury, illness, psychological trauma or death. Almost all children in the conflict area witnessed the death or injury of relatives and friends and need psychological treatment.
The children’s right to health is recognized under Article 24 of CRC. In the General Comment number 15, the Committee specifies in details the legal obligations of States to provide “equality of opportunity for every child to enjoy the highest attainable standard of health”73. Even during armed conflicts, States are expected to ensure availability of proper health facilities. Violation of right to health can take various forms such as: attacks on the health care systems, on medical personnel or on wounded and sick. The key public health functions are jeopardized when health facilities and workers are being targeted in the attacks of both parties in the armed conflicts. These constant viola-tions against children’s rights do not allow them to enjoy of the highest standard of physical and mental health.
Under IHL, the right to health-care is part of the special protection of children, as members of the civilian population. The Additional Protocol I requires parties to the conflict to provide children with care and aid. Under, the Forth Geneva Convention, the parties to the conflict should facilitate
72 Constitution of WHO, https://www.who.int/governance/eb/who_constitution_en.pdf, accessed6th of April 2019. 73
General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), No 15, para 24.
the infrastructure devoted to the care of children, should establish hospitals and safety zones orga-nized to protect the sick and wounded, children and mothers out of the conflict zone74. Lastly, article 78 of the Additional Protocol I, states that the temporary evacuation of children should be provided in cases where the health and medical treatment of the children requires it.
4.2 Assessment of the right to health and psychological well-being in the Eastern Ukraine
As of March 2014, as a result of the armed conflict in the east of Ukraine, hundreds of thou-sands of people were forced to leave their homes and live in unheated premises, in terrible sanitary conditions. A large number of children, pregnant women and the wounded were denied access to medical services.
WHO reported75 that 30 medical institutions in the East of Ukraine were almost completely disabled in the conflict zone, 17 hospitals were damaged, and about 70% of the medical staff was forced to leave the conflict areas. According to WHO report, the medical care system was weakened in Ukraine. There were not enough vaccines and chronic diseases widespread.
Another issue is that all statistics are not reliable because there is no access to the occupied territories and nobody is able to verify information from the so-called the DPR and the LPR. Chil-dren from Donetsk and Luhansk today are constantly facing the violation of their rights, and gov-ernment agencies do not systematically work to minimize the facts.
The fighting damaged seriously the health care system in the areas of Donetsk and Luhansk. According to an OHCHR Report76, at least 45 hospitals in Donetsk and Luhansk areas have been destroyed or damaged, in the first months of fighting; numerous healthcare facilities were not able to recover its activities partially or in full. In accordance with above-mentioned report, local doctors
74
Article 14, 16, 17, 18, 20 and 21 of Forth Geneva Convention 1949
75
World Health Organization, Regional Office for Europe, “Situation report 1 August 2016. Ukraine”,
https://www.who.int/hac/crises/ukr/sitreps/ukraine_sitrep_1august2016.pdf?ua=1, accessed 6th of April 2019. 76
OHCHR, 6th Report on Ukraine, 15 November 2014, p.18,
were concerned with the lack of medical supplies in the area, including anesthetic, vaccination, con-sumables, surgical instruments and other basic medical equipment.77
About 70% of the medical staff was forced to leave Donetsk and Luhansk areas because of the armed conflict and because of the psychological pressure of the situation.78Another report on the situation of healthcare facilities in the armed conflict area underlines that, during 2014 and 2015, several medical aid vehicles were seized by both parts in the conflict.79 Also, medical vehicles, in-cluding those with the Red Cross label were attacked.
In certain districts of Donetsk and Luhansk, “indiscriminate attacks and indiscriminate weap-ons are used (in particular, multiple rocket launchers). ( …) This prohibited method of warfare may amount to a war crime”.80 Another violation which takes place in the non-controlled by the govern-ment area is using the hospitals to station the combatants and the military. This practice endangered the life and health of the patients who were deprived of a proper medical facility.81
As a result of all these actions which represent only a small part of all destruction which con-tinues for the sixth year now, many children, pregnant women and the wounded were denied ade-quate access to health services.
Besides the physical wounds and the stress of daily shelling, more than 200,000 children in the conflict zone suffered a psychological trauma. These are children who live within 15 km of the con-tact line, where the fighting is most intensive. As a result of this fact, they became witnesses of vio-lence and military actions. These data are based on the assessment of the socio-psychological state of children, which was conducted by the UNICEF organization.82 According to a Global Protection
77
OHCHR, 6th Report.
78
OHCHR Report on the human rights situation in Ukraine, 17 August 2014,
https://www.ohchr.org/Documents/Countries/UA/UkraineReport28August2014.pdf , p.25, accessed 6th of April 2019. 79
Denysenko, D., Novykov, V., Korynevych, A. (2017). Forbidden Target: Healthcare Facilities under Shelling,
https://www.slideshare.net/DonbassFullAccess/forbidden-target-healthcare-facilities-under-shelling ,p. 11, accessed 6th of April 2019.
80
Ibid., p.79.
81 Ibid., p.47. 82
UNICEF, Children in Ukraine need urgent help to overcome trauma, https://www.unicef.ie/2017/04/07/ukraine-children-trauma/
