Конституційно-правові академічні студії (Oct 2023)
Direct, indirect discrimination and subjects of constitutional legal liability in the conditions of armed conflicts
Abstract
The article clarifies the signs of direct and indirect discrimination in the conditions of armed conflicts and the circle of subjects that bears constitutional and legal responsibility for committing a constitutional offense - discrimination. The methodological basis of the research is the general methods of scientific cognitivism as well as concerning those used in legal science: comparative law, methods of analysis and synthesis, formal logic, etc. The empirical basis of the research is international documents, decisions of the ECHR, current legal acts of Ukraine, and assessment of Ukrainian and foreign experts. The norms of the Geneva Convention on the Protection of the Civilian Population in Time of War and the Prohibition of Discrimination are analyzed. It is noted that hostile discrimination is prohibited, and armed conflict is not an exception to such a prohibition. The provisions of the Geneva Convention, which prohibit hostile discrimination against the entire population of all states in conflict, are aimed at alleviating the suffering de facto caused to the populations of states by war. It is established that regardless of which of the states in conflict exercises jurisdiction over the territory and regardless of whether this state exercises legal or illegal control, but if the state’s control over a certain territory is effective, this state is obliged to behave with all persons under protection equally, without discrimination; apply such measure or combination of control or security measures as may be necessary in time of war. Non-fulfilment or improper fulfillment of the above-mentioned obligations by the parties to the conflict is a violation of the norms of international law and the customs of war The article clarifies the signs of direct and indirect discrimination in the conditions of armed conflicts. In order for discrimination during an armed conflict to be qualified as direct, it is not necessary to prove that the persons were in an identical situation - one hundred percent identity cannot be achieved – it is enough that their situations are similar in fundamentally important points. In order to qualify the treatment as exceptional, a sign must be found by which such different treatment in the conditions of an armed conflict can be identified. It is proven that a state party to the conflict, introducing this or that measure or general policy of the state, must assess the consequences of such a measure/policy of the state from the point of view of whether they may have disproportionately harmful consequences for a specific group of persons. There must be a reasonable relationship of proportionality between the means used and the goal that was planned to be achieved, regardless of whether the state carries them out on its territory, or whether it has resorted to extraterritorial behavior and carries out these measures/policies on the territory of another state that is temporarily occupied by it. A state party to the conflict, pursuing a legitimate (legitimate) goal and taking measures to achieve it, must at each stage of their implementation assess and predict what real consequences they lead to. The article emphasizes that on those parts of the territories of one state, over which another state has illegal but effective control, regardless of whether such control was exercised or is being exercised by this other state directly, through the armed forces, or through a subordinate local administration, this other state is considered to have jurisdiction in the specified territory, and therefore bears legal responsibility for its extraterritorial behavior – a violation of the prohibition of discrimination. It is emphasized that international acts on human rights, international customs do not require a state party to the conflict to treat the population of another state party to the conflict more favorably, but direct discrimination is prohibited – worse treatment of this or that person or group of persons without adequate justification. Direct discrimination in the conditions of an armed conflict occurs when: 1) a person (group of persons) who are in the territory under the jurisdiction of the state are treated in a less favorable way, in comparison with the way others were treated or could be treated persons in a similar situation; 2) the reason for this attitude is that this person has certain characteristics that belong to the category of «protected characteristics». Indirect discrimination refers to different treatment of people in the same situations in the conditions of a military conflict; equal treatment of people whose situations are different in the conditions of war. The article also proposes to improve the concept of the circle of subjects of constitutional legal liability by distinguishing: 1) the state that has jurisdiction over its entire territory; 2) of a state that exercises illegal but effective control over a part of the territory of another state, regardless of whether such control was carried out or is being carried out directly, through the armed forces, or through a subordinate local administration.
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