The European Convention meets the Crisis in Ukraine

This post is part II of a series on the European Union and Council of Europe’s response to the Ukraine Crisis.

In parallel to the muti-pronged EU action I discussed on Friday, the Council of Europe has had a much less obvious political role to play in the day-to-day management of the Ukraine crisis.  However, the influence of the Council of Ministers and specifically the European Court of Human Rights will be felt via litigation winding it way through the European Convention’s admissibility process.  Most notably, three cases have been lodged by Ukraine against Russia with the Court.  They add to the growing number of conflict related inter-state cases now on the Court’s docket including Georgia v. Russia I, and Georgia v. Russia II. These cases are not only testament to an emerging role for the Court in determining the nature and liability for human rights violations committed during armed conflicts, but underscore the fragility of the inter-state system itself and a weakening of the grand ambitions that animated the Convention’s creation.

The first of the ‘new’ Russian cases is Ukraine v. Russia (application no. 20958/14) lodged on March 13, 2014. This case relate to events up to and following the Russian Federation taking full control over the Crimean peninsula and subsequent developments in Eastern Ukraine.  Ukraine maintains that from February 27, 2014 Russia, was exercising effective control over the “Autonomous Republic of Crimea” as well as over separatists and armed groups operating in Ukraine, and is therefore responsible for multiple European Convention violations. These include what appear to be a shopping list of the Convention’s provisions invoking violations of Article 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment), Article 5 (right to liberty and security), Article 6 (right to a fair trial), Article 8 (right to respect for private life), Article 9 (freedom of religion), Article 10 (freedom of expression), Article 11 (freedom of assembly and association), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination) of the Convention and Article 1 of Protocol No. 1 (protection of property) and Article 2 of Protocol No. 4 (freedom of movement) to the Convention. With respect to Article 2 violations, Ukraine has claimed that the killings alleged were widespread and systematic.  Torture and other forms of ill-treatment of civilians as well as arbitrary deprivation of liberty are highlighted as having discriminatory intent (implicating Article 14).  Here Ukraine claims that Crimean Tatars were singled out for ill-treatment on the basis of their ethnic origin. Discrimination claims also follow from the actions experienced by Ukrainian nationals in Crimea and Sevastopol  who resisted re-designation as Russian nationals.  Unusually, in this case the European Court issued interim measures (for the first time in an inter-state proceeding) under Article 39 of the Convention.  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, notably in respect of Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment).

The interim measures remain in force. However, their lack of effectiveness raise broader question about the value for the ECtHR of issuing pronouncements during ongoing hostilities when Parties have little interest or incentives to comply.

The second case Ukraine v. Russia II (no. 43800/14) was lodged on June 13, 2014 and concerns the abduction of Ukrainian orphan children and a number of adults accompanying them. Ukraine alleges that the groups were abducted by armed representatives of the separatists forces in Eastern Ukraine on three separate occasions in June, July and August 2014 and taken without their consent to Russia. After diplomatic negotiations between Ukrainian and Russian authorities following each incident, the children and adults were returned to the territory of Ukraine shortly after (1-5 days) their abductions. Interim measures were also sought and provided in this case, and the Court again exhorted the Parties to abide by their international treaty law obligations. The third case, Ukraine v. Russia III (no. 49537/14), was lodged in July 2014 and is concerned with the treatment of one particular individual, Hayser Dzhemilov and alleged Convention violations committed during his period of extended detention in Simferopol.

On November 25, 2014 the ECHR invited the Russian Government to submit its observations on the admissibility of all applications.  The state was asked to comment in particular on the question of whether the Convention violations fall within the jursidiciton of the Russian Federation within the meaning of Article 1 of the Convention (States’ obligation to respect the rights guaranteed in the Convention).  Russia was asked to specify what legal remedies were available to the people concerned by the alleged violations of the Convention and whether these remedies were accessible and effective.

In addition to the two inter-State applications, there are more than 160 individual applications pending before the Court, lodged against Ukraine or Russia or both. In parallel with the long-standing backlog of Chechen cases against Russia claiming a broad swathe of Convention violations resulting from the armed conflict on that territory, we can anticipate a similar number, trajectory and pattern to these new conflict-related cases.  More than 20 of those applications are related to the annexation of Crimea. More than 140 of the individual applications are related to the conflict affected areas in Eastern Ukraine. Most of these cases were lodged against both Ukraine and Russia and involve individual complaints about various forms of ill-treatment and violations of due process rights under the Convention. A smaller group of cases concerns the destruction or taking of property (Protocol 1) and the impact of the armed conflict on the applicants’ rights under Article 8 (right to respect for family and private life). In 104 individual applications, interim measures under Rule 39 of the Rules of Court were sought and provided by the Court demanding that the two Government/s – of Russia and/or Ukraine – ensure respect for the Convention rights of detained people or people whose whereabouts are unknown presumed disappeared or dead. Perhaps some reassurance on the value of interim measures can be taken from the fact that in 14 of these cases, individuals were released from detention and the interim measures demanded were subsequently lifted by the Court.

The inter-state cases will provide for a highly visible fora in which the issues of sovereign integrity, and arguably breach of a foundational (if unwritten) norm of the Convention itself (territorial integrity of states) will be given ample review.  There is also the very interesting prospect of sustained judicial attention to the interface between occupation law norms and human rights law standards.  Given that  the UN General Assembly adopted Resolution 68/262 on the “Territorial integrity of Ukraine,” where it unambiguously affirmed:

.. that the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, having no validity, cannot form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol.

As a result, as a matter of international law because there has been no transfer of sovereignty from Ukraine to Russia, Crimea can rightly be claimed as engaging a state of belligerent occupation, subject to the Fourth Geneva Convention.  As regards Eastern Ukraine, the Court’s application of an effective control analysis will be worth watching to see what further tightening and modifications this regional court will bring to this critical concept in the context of this regional war. The European Court has historically avoided any direct interpretation of the law of armed conflict’s relationship with the human rights treaty it enforces, but it may be challenging to avoid that terrain in these cases. So while there is not likely to be an immediate effect on the politics of the conflict, there lies substantial human rights navigation ahead.  And clearly that human rights navigation will have political effect, whether the Court seeks it or not. 

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).