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0THE LIMITS OF LIBERTY: EXAMINING RESTRICTIONS ON HUMAN RIGHTS IN THE SITUATION OF CONFLICT
ZAHORSKAYA ANASTASIYA
Student of the European Humanities University
BASALAI ALENA
Supervisor Vilnius, Lithuania
Abstract: The tension between protecting human rights and maintaining security during situations of conflict is a big issue in which the absoluteness of these rights is called into question. This article examines the legality of human rights imitations during the conflict via legal documents and case study of the Kavkaz region.
Key words: Human Rights, Limitations, Conflict situations, National Security, Public Health, Public Order, Proportionality.
One of the rudimentary tasks of modern democratic states is to ensure human rights. The topic of human rights restrictions is urgent and debatable nowadays, because the world was stroked with the conflicts which are bringing the absoluteness of these rights called into question. Human rights always were treated as fundamental, but the question of unlawful limitations is up on now because of conflicts. Such cases are also a challenge for International bodies and international society, because the erosion of human right in one country can lead to serious shifts in the worldwide peace and stability.
The aim of the paper is to characterise the limits of human rights limitations in the situations of conflict and examine the real cases.
The cornerstone of freedom, justice, and peace in the world is the acknowledgement of each and every member of the human family as having inherent dignity and unalienable rights. Human rights are assurances granted to individuals in this regard [1].
The foundation of every democratic and free society is the idea of human rights. All human beings have inherent rights, regardless of their gender, race, nationality, ethnicity, accent, religion, or any other distinction. Human rights include the freedom and right to life, the freedom from slavery and torture, the right to self-determination and free speech, the right to employment and education, and many more. Every human being is born free, equal in dignity, and endowed with all the rights and freedoms, as stated in Article 2 of the Universal Declaration of Human Rights. Human rights prohibit discrimination on the basis of national or social origin, property, birth, or any other status; likewise, discrimination cannot be imposed based on political, jurisdictional, or international status of the nation or territory to which an individual belongs, whether it be independent, trust, non-self-governing, or subject to any other limitation of sovereignty (Article 3). Human rights are a concept that should be applied to us as humans.
Everyone is entitled to Human rights and governments are always advocating for promoting and preserving human rights. Indeed, people are fighting for their rights and are not ready to give these rights away. However, human rights can be lawfully limited under the international law.
It's true that human rights are fundamental, but despite its fundamentality they can be limited in some circumstances even during the peaceful period of time. Overall, human rights may be restricted under Article 29 of the UDHR only insofar as they are necessary to ensure that other people's rights and freedoms are duly recognised and respected, as well as to satisfy the reasonable demands of morality, public order, and the general welfare in a democratic society. This article resolves that there are situations in which human rights can be legitimately restricted, but these situations need to be carefully investigated. It will take more evidence to restrict some rights than
others. Restrictions pertaining to the freedom of expression, for instance, will be simpler to defend than restrictions on the right to be free from torture.
Additionally, it states that no limitations on the exercise of this right may be imposed other than those that come from the law and that are required in a democratic society to protect public order, national security, public safety, public health, morals, or the rights and freedoms of others [2].
Overall, some justified limitations might be lawful, but the situation with the armed conflicts time is different.
Universal Declaration of Human Rights or International Covenant on Civil and Political Rights don't answer the issue of human rights limitations during the conflict directly, due to that reason, additional protocols and real cases should be taken into account.
One of such additional protocols, that outline the question of human rights limitations during the conflicts, is Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) [3]. The cases of human rights derogation in time of emergency is highlighted in the Article 15. The limits of derogation is set out as any High Contracting Party may take actions that strictly deviate from its obligations under the Convention in times of war or other public emergencies that threaten the lives of the country. That means that countries are allowed to take actions that deviate from their obligations raised from Universal Declaration of Human Rights, unless the country is not breaking other obligations under international law and has a situation of emergency.
Paragraph 3 of Article 15 defines the procedure which state should follow to declare an emergency state and apply some deviations. The situations in which countries are allowed to take such actions are describes as times of war or other public emergency threatening the life of the nation. The state shall provide the Secretary General of the Council of Europe with complete information about the actions it has taken and the rationale behind them. Additionally, it must notify the Secretary General of the Council of Europe when these measures are no longer in effect and the Convention's provisions are once again being properly implemented. The Council of Europe should be fully informed of the measures which it has taken and the reasons therefor, also, when measures have ceased to operate and the provisions are again being fully executed. One more condition for announcing derogations from Convention is that such measures shall not be inconsistent with its other obligations under international law.
Despite some allowed deviation, Convention sets out boundaries of possible derogation. Among these limitations are the rights to life (Article 2), that can be violated only in the result of lawful acts of war, prohibition of torture (Article 3), prohibition of holding someone in slavery or servitude (Article 4 pr.1) and no punishment should be exercised without law (Article 7).
Taking into account, that possible derogations may affect the human rights policy of the alleged country, Article 17 clearly states that nothing in the Convention should be interpreted as any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms of human rights. Also, restrictions are only permitted for prescribed purpose as granted under Article 18 of the Convention.
The Council of Europe is maintaining a list of cases when such situations had happened or keeping an eye on deviations that are taking place nowadays. In order to be fully aware of cases, Memorandums, Observations or public speeches on the specified topic are taking place.
Through the course of history, quite a few notifications were filed by various countries. Each case is treated individually and raises concerns in the international community.
The main case that will be examined in the paper is the situation in the Kavkaz region, related to Armenia and Azerbaijan. The Ministry of Foreign Affairs of Azerbaijan registered a notification at the Secretariat General dated 28 September 2020 [4]. The notification contains derogations that are taken due to aggression launched by Armenia on September 27, 2020, as stated by the Ministry of Foreign Affairs of Azerbaijan. At this point, Azerbaijan had upheld the required procedure of sending notification to the Secretary General of the Council of Europe on time and fully. In the notification, the reason of deviations, articles that may be violated and the purpose of deviation are listed as required by the procedure.
As a result, Azerbaijani citizens and military personnel have suffered casualties. Numerous homes and other civilian facilities have suffered significant damage. In the notification the authorities listed Articles of international documents under which the deviations may be found. Under the European Convention on Human Rights [5] following rights were declared as deviated: Right to liberty and security (Article 5), Right to a fair trial (Article 6), Right to respect for private and family life (Article 8), Freedom of expression (Article 10), Freedom of assembly and association (Article 11). Protection of property and right to education which are granted under the Protocol to the Convention [6] also can be deviated, as well as, freedom of movement given by Protocol No. 4 to the Convention [7].
The notification specifies that the government's actions are targeted and proportionate. The actions are necessary due to the urgency of the situation and in line with the State's other commitments under international law, as stated in Article 15 paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Furthermore, it is hereby declared that the measures departing from the Convention's obligations are adopted in full compliance with the rights and obligations outlined in its Articles 2, 3, 4 (paragraph 1), and 7. The Secretary General will receive updates from the Ministry regarding any changes pertaining to martial law in the future, as well as notice when Azerbaijan ends the derogation.
On the other hand, any notifications related to this conflict weren't filed by Armenia.
The situation in this region was closely monitored by International organisations, human rights organisations, inside and outside the country as well as media. For this reason, the Council of Europe Commissioner for Human Rights visited Armenia and Azerbaijan including the Karabakh region, from 16 to 23 October 2023. The outcome of this visit was gathered in the Observations, which purpose is to evaluate the state of human rights for those impacted by the conflict and to draw attention to pressing humanitarian and human rights issues. The visit's main concern was the state of the human rights of those impacted by the armed conflict. This kind of human rights expedition was able to visit the Karabakh region for the first time in decades.
Some information, which is covered in the observations, is related to persons detained in relation to the conflict. Commissioner specifically underlines that in all cases, they must receive humane treatment, and they should generally be permitted to communicate with their family. Furthermore, according to international humanitarian law, prisoners of war must be freed and returned home without delay following the cessation of hostilities [8]. Wherever they may be, the ICRC must be able to visit protected civilians and prisoners of war in compliance with the Geneva Conventions [9]. Related to missing persons, the International Committee of the Red Cross (ICRC) offered technical assistance, got in touch with 996 relatives of missing people, and made 91 referrals for psychosocial, legal, and health-related matters [10]. The possibility for people to reach out to all those in need of urgent humanitarian assistance and human rights protection are called into question. Human rights missions still face significant challenges entering the region, and access to outlying communities is restricted because of explosive remnants of war, landmines, and other security issues.
Other deviations were observed by other international organisations in addition to the ones that the Commissioner questioned. As an illustration, Amnesty International focused on alleged violations [11] of international humanitarian law by blockading the a route that links Armenia and Nagorno-Karabakh resulted in severe shortages of essentials including food, medication, and fuel, as well as a humanitarian crisis in the breakaway area. In addition to that, freedom of expression, association and freedom of peaceful assembly was also noted as violated, despite the prior notice to the Council of Europe, containing deviation on this article.
Important to notice, that Member states of the Council of Europe are required by law to fight impunity in order to protect the rule of law, safeguard public confidence in the judicial system, and provide justice for the victims [12]. To ensure accountability for human rights and international humanitarian law violations, Commissioner suggested implying a victim centred approach in order to preserve justice.
From 2021, the Commissioner talked about several claims of grave human rights abuses that allegedly took place before it was published and suggested conducting quick, impartial enquiries into these claims. Following the release, additional claims of grave human rights breaches have surfaced, including those pertaining to the conditions of the Armenian population's mass displacement from Karabakh.
Cases concerning actions taken against both sides of the conflict in the context of the conflict have been brought before the European Court of Human Rights. The Commissioner specifically mentions that Armenia and Azerbaijan filed interstate applications with the European Court of Human Rights on claims of extensive Convention violations that occurred between September 27, 2020 and in six instances, November 10, 2020. Armenia filed four of these lawsuits against Azerbaijan. and two by Armenia, one by Azerbaijan.73 Additionally, both nations have filed cases before the Global Court of Justice concerning purported transgressions of the International Convention on the CERD stands for the Elimination of All Forms of Racial Discrimination [13].
Several troubling incidents were considered when assessing the state of human rights violations in the Krabakh region. This case teaches us that a country's compliance with procedures pertaining to the implied limitations on human rights does not guarantee that all of the enumerated limitations will be deemed lawful. Since then, this area and the issues brought on by the armed conflict have received a lot of attention. The issue of violence and tension has a significant impact on local residents' human rights and has unsettled the stability of such rights in the area.
Serious human rights crimes, including extrajudicial killings, torture, and the forced relocation of populations, have been attributed to both Armenian and Azerbaijani forces. The prolonged fighting has made it difficult to protect human rights in certain situations. In the provided case the boundaries that were provide by legal documents on human rights limitations were roughly neglected. The region's humanitarian crisis has worsened, leaving inhabitants without access to basic necessities like food and medication. The schooling and housing crises are the result of thousands of individuals being uprooted. The right to peaceful assembly and the freedoms of expression and association have also been hampered by the conflict. The acts mentioned are not permitted by international law or any restrictions that might be put in place when there is an armed conflict.
It is imperative that both sides make a commitment to a peaceful settlement of the conflict in order to improve the human rights situation in Karabakh. Civilian welfare and human rights protection must come first in any negotiated settlement. Human rights advocates and international organisations must keep an eye on the situation and push for accountability for violations of human rights. Ultimately, for there to be a long-term resolution to the Karabakh conflict, all sides must pledge to uphold the fundamental liberties and rights of every individual living in the area.
To draw a conclusion, it's crucial to notice that human rights are fundamental and countries should take actions to preserve human rights. As was stated, human rights can be legally imitated in the situation of conflict, but only under strict conditions. Limitations imposed must be lawful, necessary, proportionate, and temporary. States may impose restrictions on certain rights in order to thwart terrorism, preserve public order, or safeguard national security. Non-derogable rights, on the other hand, like the ban on torture, cannot be restricted in any way. In conclusion, although conflicts might result in exceptional situations that call for the temporary restriction of some human rights, these restrictions must be carefully weighed against the core values of the rule of law and human dignity. A framework established by international law serves to guarantee that these restrictions are appropriate, necessary, and lawful, and that they do not conflict with the fundamental principles of human rights.
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