Another Pressure Point on Russia

Editors’ NoteThe following post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week and/or looks ahead to key developments on the horizon.

The increasing strain placed on Russia’s economy by financial sanctions in response to its 2014 invasion of Ukraine illustrates the capacity for non-military measures to address serious breaches of international law. The potent sanctions are joined by legal measures aimed at curbing human rights abuses and holding Russia responsible for the conditions created by its intervention as well as the annexation of Ukrainian territory.

In parallel to sanctions, other response systems have slowly geared up to address the Russian annexation of Crimea and continued actions in Eastern Ukraine. As I predicted here, the European Human Rights system was always likely to be part of the regional response to Russian action. Two inter-state procedures following from Crimean annexation and actions by Russia in Ukraine were filed at the European Court of Human Rights (ECtHR) this year. Ukraine filed a claim seeking compensation for Russia’s annexation of Crimea, which Kiev has assessed at accumulating to $100 billion (and growing). The second application alleges Russian responsibility for the kidnapping of three groups of children in Eastern Ukraine and their temporary and unauthorized transfer to Russia between the months of June and August 2014. In November, Russia was invited by the Court to submit its observations on the admissibility of these applications to the ECtHR Registrar. Inter-state cases are exceedingly rare in the European system, and signal a special degree of discontent at the target State’s behavior. The cases before the Court are likely to raise interesting factual questions including whether a situation of occupation applies in Ukrainian territory and what might be the precise relationship between human rights and humanitarian law in these circumstances. The European Court has  avoided addressing similar questions in parallel cases involving the protection of human rights in situations of active hostilities (including multiple Russian cases arising out of Chechnya)—but skirting these issues may be harder given the factual claims presented by Ukraine.  These issues are also likely to have significant play in a series of cases filed against Russia by Georgia pertaining to violations of Articles 5 & 6 of the Convention (due process rights) following from the August 2008 conflict in South Ossetia and Abkhazia. 

In March 2014 the ECtHR issued interim measures under Rule 39 of the Court’s Rules of Procedure in response to the interstate filings.  In that decision, coming from the Third Section of the Court,  Judge Casadevall held that the Russian government should “refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine.”  Judge Casadevall also called on both Ukraine and Russia to refrain from taking any action, “in particular military actions,” that  “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, notably in respect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment” (see also Philip Leach’s analysis over at EJIL Talk!).  Apart from the inter-state applications, the conflict between Russia and Ukraine and the Crimean Annexation has generated over 160 individual applications either against both Ukraine and Russia or one of those States exclusively.  Both Russia and Ukraine are obliged to inform the Court as soon as possible of the measures they have taken in response to the interim measures decision. The quick move to provide interim relief (and requiring Russia to report on measures taken in compliance) is new for this Court, and illustrates some institutional commitment to use the Convention proactively as a mechanism to prevent further human rights abuses in situations of active hostilities. It will be no surprise to readers that Russian compliance with the interim relief orders has been lax. A lack of enforcement is consistent with a broader pattern of non-compliance by Russia to the Court’s rulings that call for robust institutional measures to prevent human rights abuses.  Engagement by the ECtHR provides a unique opportunity for a human rights court to actively engage in a situation of ongoing hostilities, and provide clarification on the relationship between international human rights law and the law of armed conflict.We watch the outcomes of these cases with interest, as well as the legal positions that will be adopted by Russia to defend its actions in both contexts.

  

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).