Tuesday, 6 October 2009

Grand Chamber Judgment on Disappearances

Its been three weeks now, but the Grand Chamber judgment of the Court in Varnava a.o. v. Turkey is important enough to highlight here. The case concerns a number of disappearances which occurred in 1974 during the the armed conflict on Cyprus. The disappeared persons were last seen in areas under the control of the Turkish militrary. Only very recently, in 2007, the bodily remains of one of the disappeared was found and identified.

Largely in line with the findings of the earlier Chamber judgment of 2008, the Grand Chamber found violations of Articles 2,3 and 5 ECHR. But in contrast to the Chamber, it did award the applicants just satisfaction for non-pecuniary damages.

One of the main points of discussion in this case was a question of admissibility: the interpretation of the rule that an application normally needs to be lodged within six months after exhausting domestic remedies. The Grand Chambwer tried to clarify its case law on this point, but did not entirely succeed in that. Rather it came, through intricate argument, to an assessment which is nuanced but not clear-cut. Various judges address this issue in separate opinions, which show how much discussion there must have been on this point.

Another interesting feature is the Court's elaborate referencing to case law from the Inter-American human rights system and the UN Human Rights Committee. In addition, the Court - for one of the first times explicitly - made use of international humanitarian law to strengthen its reasoning under Article 2. In paragraph 185 it held:

As concerns the other seven men, no such documentary evidence of actual detention has been forthcoming. There is nonetheless an arguable case that the other seven men were last seen in an area under the control, or about to come under the control of the Turkish armed forces. Whether they died, in the fighting or of their wounds, or whether they were captured as prisoners, they must still be accounted for. Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict. The Court therefore concurs with the reasoning of the Chamber in holding that in a zone of international conflict Contracting States are under obligation to protect the lives of those not, or no longer, engaged in hostilities. This would also extend to the provision of medical assistance to the wounded; where combatants have died, or succumbed to wounds, the need for accountability would necessitate proper disposal of remains and require the authorities to collect and provide information about the identity and fate of those concerned, or permit bodies such as the ICRC to do so.
One may expect more of this in the years to come, especially with the pending cases concerning the Russian-Georgian conflict of last year. The argument to use international humanitarian law was put forward by Cyprus, as an intervening state in the case. All parties, by the way, were supported by legal advice of the highest caliber: Jochen Frowein for Turkey, Ian Brownlie for the applicants, and Fran├žoise Hampson for Cyprus.

Four concurring opinions and one dissenting opinion are attached to the judgment. The press release in English can be found here.

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