Among the flurry of legal efforts by Ukraine and its supporters to counter Russia’s aggression, Ukraine applied on Feb. 28 to the European Court of Human Rights, requesting urgent interim measures against Russia, in relation to “massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine.”
On Mar. 1, the Court granted Ukraine’s request, indicating to the Russian Federation:
to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.
On Mar. 4, the Court indicated similar measures concerning requests by individual civilians in Ukraine.
As noted by Adil Haque, these decisions can be read as a retreat from the Court’s position in the much maligned case, Georgia v. Russia (II), in which the majority held that the European Convention of Human Rights does not apply extraterritorially during active hostilities, “in a context of chaos.” This is a good thing. Georgia v. Russia (II)’s approach was riddled with inconsistencies, and the exclusion of the deadliest activities from the purview of the Convention is certainly troubling.
However, the interim measures indicated still leave much to be desired. Perhaps, their scope simply reflects what was actually requested by the applicants. (The Court does not make such documents on interim measures publicly available.) Nonetheless, these measures are still regressive considering recent developments in international human rights law (IHRL). Ukraine, as an applicant, can push for more, and the Court should allow it.
In 2018, the Human Rights Committee adopted General Comment 36 (GC 36) on the Right to Life. GC 36’s paragraph 70 holds that “States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6” of the International Covenant of Civil and Political Rights, enshrining the right to life. This makes sense. Aggression is the quintessential arbitrary deprivation of life. How can the indiscriminate killings that it entails not be considered arbitrary for the purpose of IHRL?
As I discussed in a recent article, applying GC 36 would mean that even killings that do not violate international humanitarian law (IHL) might still violate IHRL, if resulting from acts of aggression. Under this view, IHL is intended, among other things, to minimize harm during war, and for this reason grants immunity from prosecution to combatants that follow it. However, it does not give states free reign to violate their duty to respect IHRL or justify otherwise unlawful conduct. In practice, this would entail that states undertaking acts of aggression would incur state responsibility not only for intentionally targeting civilians. Rather, their responsibility would extend also to the killing of combatants, as well as the incidental killing of civilians – even if deemed “proportionate,” and therefore not unlawful, under IHL. Accordingly, persons killed “lawfully” under IHL would have individual standing to claim reparations from aggressing states.
This approach was not totally lost on the Court. Former Judge Helen Keller, in her concurring opinion in Georgia v. Russia (II), conceded that, in the future, the Court might be called upon to apply jus ad bellum – the law governing a state’s right to go to war – in its interpretation of the European Convention. Other authorities have also pointed toward adoption of this argument, including UN Special Rapporteur Agnes Callamard, who applied GC 36 to the targeted killing of Iranian General Qassem Soleimani, arguing that the United States violated his right to life under IHRL even if his killing would be considered lawful under IHL.
Against this backdrop, the interim measures indicated in relation to Ukraine do not go far enough. They demand of Russia to refrain from violations of IHL – i.e., attacking civilians and protected objects – and thus imply that the killing of Ukrainian soldiers, as well as the incidental (if proportionate) killing of Ukrainian civilians, is not a human rights issue. While this seems to fit within the approach espoused by the International Court of Justice in the Nuclear Weapons Case – according to which killings that IHL tolerates are not violations of the right to life – that case is 26 years old. Our understanding of IHRL, IHL, and their interaction with jus ad bellum has developed since. Simply put, since IHL alone cannot justify anything, it does not absolve states of their responsibility for wrongful killings, such as those resulting from aggression, which remain illegal under IHRL.
The brutal invasion of Ukraine and the mounting casualties make this crystal clear. Taking into account this unprovoked attack against them, can we conceive of Ukrainian soldiers as anything but victims of a terrible crime? Do the rights of civilians that die “incidentally,” in pursuit of an unjust cause, simply fade away because they were caught as “proportionate” collateral damage?
The case of Ukraine in the European Court of Human Rights must go further and push for the recognition of the rights of all victims of this unjustifiable war. The doctrine is there. It is clear, consistent, and applicable. This is precisely the case to use it.