Monday, 24 March 2014

Ukraine - Russia Inter-State Application Guest Post

It is my pleasure to present a guest post by Kanstantsin Dzehtsiarou of the University of Surrey on the inter-state application lodged by Ukraine against Russia earlier this month and, more specifically, on the interim measures the Court indicated as a reaction to the rapidly unfolding events. The President of the Court called "upon both Contracting Parties concerned to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention." For more, see also the comments of professor Philip Leach on EJIL Talk! Here are Dr Dzehtsiariou's guest comments:

The Effectiveness of the European Court of Human Rights in Cases of War.
 Dr Kanstantsin Dzehtsiarou 

On 13 March 2014, the Ukrainian government brought an inter-state application before the European Court of Human Rights (ECtHR) against the Russian Federation concerning military threats allegedly posed by Russian troops in the Crimea, which is an autonomous region within the Ukraine. The alleged Russian presence in the Crimea could result in military confrontation in the light of the partial mobilisation of the armed forces of the Ukraine.

In lodging its application, the Ukraine has also applied to the Court for interim measures, which have been granted by the Court due to the fact that the current situation in Ukraine gives rise to a continuing risk of serious violations of the Convention. Pursuant to these interim measures, both parties are ordered to refrain from activities that could threaten the lives and health of the Ukrainian civilian population, which includes military actions. Although the lodging of this complaint and the request for interim measures are logical steps for the new Ukrainian government to take in the circumstances, it is not clear what the effect of these steps will be. Arguably, the ECtHR could not reject the request to grant interim measures, as similar requests had been granted in the past (see, Georgia v Russia II. More on that case here). The key question, however, is whether the ECHR is institutionally capable of preventing a war and ensuring the effectiveness of such interim measures.

To answer this question comprehensively, one would need to examine the rich jurisprudence of the Court dealing with military occupations. This modest blog post does not intend to do that. It will only provide an overview of what the Court can and cannot do. Moreover, I will argue that if the Court becomes too ambitious, it might damage its reputation and legitimacy.

In the late 1940’s, immediately after the Second World War, the European Convention on Human Rights was drafted with three main purposes in mind: 1) preventing gross violations of human rights; 2) stopping Contracting Parties from sliding to totalitarism; and 3) preventing new wars. It is doubtful, however, that the Court is capable of fulfilling these purposes. Having said that, the Court is able to do something else – namely, offer post factum redress to at least some individual victims of military occupations and confirm certain principles of how to deal with such violations. In Loizidou v Turkey, for example, the Court found a violation of the applicant's right to access her property on the territory of Northern Cyprus occupied by Turkey. In Ilaşcu and others v Russia and Moldova, the ECtHR has found that there was a breach of the Convention in Transnistria occupied by the Russian troops. The Court has thus been able to provide relief to individuals whose human rights have been infringed and has held occupying States to account in ensuring compliance with human rights law on the occupied territories.

Unfortunately, the Court is unable to prevent war. Moreover, major attempts to do so can lead to disappointment and despair on the part of the stakeholders. Interim measures is one of very few instruments available to the Court that are capable of affecting on ongoing or developing situation. However, it appears that granting interim measures in a pre-war situation in an inter-state complaint might have very little impact. It is unlikely that a government will change its mind to occupy a particular territory because the ECtHR has ordered it not to do so.

This does not mean that interim measures of the ECtHR in individual cases are always honoured. In cases involving the UK, France, Slovakia and Russia, among others, the Court has ordered Contracting Parties not to extradite an applicant who is subsequently extradited nevertheless. These situations, however, led to powerful criticism by the Court and the near-automatic finding of a violation in such cases. It seems that the Court does realise that violations of interim measures undermine its authority, credibility and reputation. This is the reason why the Court seeks to use interim measures only in cases where they can realistically be complied with. However, this is not the case in the pre-war scenarios. In 2008, Georgia also brought a complaint against Russia to the ECtHR and requested interim measures in relation to military action in South Ossetia and Abkhazia (see Georgia v Russia II). The Georgian authorities subsequently argued that these interim measures had not been complied with. It seems that the Russian authorities have a track record of failure to comply with interim measures before and during military actions. Bearing that in mind, one might wonder why the Court continues to grant interim measures and thus endanger its credibility. If the Court wishes to send a clear message to the Russian government, it will be one of hundreds of messages of that kind and I am sure that the Russian authorities know very well how the ECtHR would react to its actions. Since the measures are directed to both parties, it might seem that the measures are mostly directed to stop Ukraine from trying to protect its sovereign territory through military means. While the Court’s request talks about civilian population it seems that such interim measures add to the scope of international humanitarian law and narrows the scope of opportunities for Ukraine to protect its territory by military means.

Moreover, interim measures are not mentioned in the Convention and they were declared binding by the ECtHR in its case law (see, Mamatkulov and Askarov v Turkey). Therefore, the State's compliance is crucial for considering this particular aspect of the court-made law as legitimate. Interim measures do not enjoy the same level of legitimacy as the Convention which was ratified by the Contracting Parties. It is also doubtful whether interim measures are easily transferable to the cases of inter-state applications. Interim measures were developed in individual cases and were designed to prevent immediate and irreparable damage to the applicants; for example, the continuation of torture, or preventing extradition to the state where he or she could be subjected to torture. In inter-state complaints, the measures are formulated in general terms and compliance becomes a disputed issue. Moreover, the respondent state might intentionally or accidentally misunderstand what is expected from it, rendering the effectiveness of such interim measures almost negligible and this in turn damaging the reputation of the Court.

The lack of effectiveness in these circumstances is not a unique attribute of the Strasbourg Court. It seems that no court can effectively prevent a war. There might be historical examples to the contrary but they are clearly exceptions. The ECtHR can only be effective if the Contracting Parties value law. The Court does not have an apparatus of implementing its decisions of granting of interim measures. The Contracting Parties should effectively volunteer to fulfil obligations imposed by the Court. Any aggressive war is a gross violation of international law which shows that this state has no respect for law and it should not come as a surprise that the same state would not comply and honour decisions of the Court dealing with such situations.

It is unrealistic to burden the Court with such an unattainable task as the prevention of war. War and peace are issues ordinarily decided by the executives and only later reconceptualised and checked by courts. The ineffectiveness of the Court's prior involvement can damage its credibility and negatively affect its activities through which it has a chance to succeed, namely, post factum redress of violations flowing from the military occupation.

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