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The Aggression Against Ukraine and the Effectiveness of Inter-state Cases in Case of War

In: European Convention on Human Rights Law Review
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  • 1 Professor in Human Rights Law, University of Liverpool, Liverpool, United Kingdom, k.dzehtsiarou@liverpool.ac.uk
  • | 2 Senior Lecturer in Law, University of Liverpool, Liverpool, United Kingdom
  • | 3 Member of the UN Human Rights Council Advisory Committee, v.tzevelekos@liverpool.ac.uk
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1 The Return of Dark Times

This is the second time in the short life of the echr Law Review that unforeseen and calamitous events compel us to (partially, this time) re-write our editorial note. In issue 2/2020, it was the global pandemic; now it is the criminal aggression against Ukraine by the illiberal regime that rules the Russian Federation. We wish to use this medium to join our voice with that of the countless authorities and people who unconditionally condemn in the strongest possible terms this unprovoked, cynical, and wholly illegitimate armed attack that is deprived of any grounds in law, in fact, and in morality. This is not the only war or instance of unlawful use of force since the establishment of the UN Charter. It is time we openly admit that the Charter system of collective security is largely unsuccessful in terms of effectiveness, representativeness, impartiality, and accountability. Nor is this the first time that the autocratic Russian regime unlawfully employs military force on the territory of and against another state. The detailed elaboration on the reasons for the forceful reaction (arguably amounting to Russia’s excommunication) of the majority of states and of various non-state actors exceeds the limited confines of this note. Suffice it to name here just a few of these reasons: what is currently happening in Ukraine is shockingly revisionist and anachronistic; it awakes memories and a collective trauma that Europe has tried so hard to overcome and heal.

The very essence, the very purpose of the European Convention on Human Rights (echr, the Convention) system and of the Council of Europe (CoE) itself are to fight what Putin’s regime (and other modern-day dictatorships currently ruling certain -European- states) represents, namely a threat to our shared fundamental values: peace and democracy, human rights, and the rule of law. We need to be very clear. Illiberalism and human rights are absolutely irreconcilable. The fundamental values that underpin human rights and the goals that these serve always suffer during wars; and since human rights, and human rights research are central to our mission, we sincerely hope that there will be as little human rights violations as possible, and that all such violations can be remedied. However, we must admit that, to a great extent, this is merely wishful thinking from our side -wishful thinking stemming from our very need to exorcise these dark hours; to hope that war did not come to stay in Europe and in the world; that it will not spread or escalate; and that the CoE foundational values, democracy and liberalism, will prevail (also within Russia).

2 The CoE’s Decision to Suspend the Russian Federation from its Rights of Representation in the Committee of Ministers and in the Parliamentary Assembly -and the Need for Smarter Sanctions

By the time that we finalised this editorial, the Russian Federation had already been suspended from the CoE. The Committee of Ministers initiated the procedure provided in Article 8 of the CoE Statute and suspended Russia’s right to representation in the Committee of Ministers and in the Parliamentary Assembly.1 This is effectively an invitation to either remedy the problem that triggered the suspension or to withdraw from the CoE. In essence, the CoE clearly drew the red line – unlawful use of force against another member state is incompatible with CoE membership.2 At the moment of writing, Russia’s suspension leaves unaffected the European Court of Human Rights (ECtHR, the Court), which continues to have full jurisdiction over Russia.

The relationship between Russia and the CoE has been troubled for a number of years. Among many other reasons, this owes to the lack of willingness by the Russian authorities to comply with the echr case law. In spite of that, for years, one of the main reasons for keeping Russia in the CoE was the fact that its expulsion would deprive the victims of human rights violations committed by Russia from bringing applications against it to the ECtHR. The sanctioning of a state for the conduct of its autocratic regime also ‘punishes’ in a sense the ones who need protection from this regime. Amongst the victims of Putin’s regime, we count in many respects (and in ways that go well beyond the echr system) the Russian people itself.

It is quite unfortunate that the CoE apparatus lacks smarter sanctions that would focus on the responsible ones. As things stand, it is hardly possible to suspend a state from the CoE and expect it to continue being a party to the echr. It is more than likely that the suspended state would either withdraw soon after the suspension or be expelled by the Committee of Ministers. The Convention itself requires that only member states to the CoE can be parties to it.3 This inflexibility of the CoE system of sanctions reflects the -rather old-fashioned- state-centric structure of international law, which traditionally relies on state consent and sovereignty. It is now time to start reconsidering this and thinking about designing more resilient, effective, and efficient international human rights regimes.

3 Inter-state Cases

The original idea for this editorial note was to dedicate it to inter-state cases. Russia’s aggression against Ukraine -very unfortunately- makes this question quite topical. Thus, in the remaining part of this short editorial we share selected thoughts on the overall purpose and value of inter-state cases, but also on the significant challenges that they raise for the ECtHR.

3.1 The Relevant Framework, its Purpose and (Mis)Use(?)

The ECtHR can receive two types of applications in contentious cases. First, according to Article 34 echr, the Court can receive individual applications from the victims of alleged human rights violations. Second, pursuant to Article 33 echr, the Court can consider applications submitted by contracting parties against other contracting parties. Originally, the right to individual petition was optional and the states that accepted the jurisdiction of the ECtHR did not have to allow individuals to bring complaints against them. However, even back then, the states which accepted the jurisdiction of the Court could not opt out from inter-state applications. Yet, although inter-state applications have been an essential part of the echr controlling mechanism, the number of inter-state applications was, and still remains, comparatively low. Thus far, only 16 inter-state cases have been completed by the Court.4 The contrast between this number and the thousands of judgments on individual applications is telling. Between the 1950s and the 2000s, the echr system only received slightly more than a dozen inter-state applications. However, the increase in the number of military conflicts between the CoE member states since 2008 translates into a significant increase in the number of inter-state applications.5 Four applications were brought by Georgia as a result of the military confrontation with Russia in 2008; nine applications were submitted by Ukraine against Russia after the beginning of the military confrontation between these two countries in 2014;6 the military conflict between Armenia and Azerbaijan over the territory of Nagorno Karabakh has led to the submission of another three applications. With increased political and military tensions in Eastern Europe it is likely that further applications will be submitted to the Court. Indeed, almost all current applications are related to military conflicts. Unfortunately, most of these applications come off the back of the conflicts; not instead of them. One might argue that the ECtHR has no direct conflict prevention capacity, but what is the role of inter-state applications then?

A logic behind inter-state applications and a purpose that they serve is to enable actio popularis.7 Unlike individual applications, where the applicant must be a victim, in the case of inter-state applications any echr party is entitled to bring before the ECtHR a case against another party even if the alleged human rights violation does not concern or (directly) injure the applicant state. This reflects the idea of the echr being an instrument of international law that establishes objective obligations that each state party owes to all other parties (erga omnes partes).8 The aim of this (truly revolutionary in the 50’s) particular feature of the echr is twofold: first, to enable the collective enforcement of the shared values that underpin the ECtHR; second, inter-state applications can also pursue the self-interests of an echr state party that is injured or whose citizens are injured by the human rights breaches of another party. The vast majority of inter-state applications fall in the latter category; that is to say, states have proven to be reluctant to resort to inter-state applications as a means to collectively enforce the echr. Instead, they are increasingly suing other states at the ECtHR as a means to protect themselves and their citizens from the respondent’s conduct, in particular when that conduct concerns human rights violations during or resulting from the use of force. The absence in international law of other effective avenues and means for states to solve such international disputes creates a gap that states request the echr mechanism to fill. In other words, states invite the ECtHR to stretch the echr ambit to peace and security. The Court has an important role to play in this field. Yet, this obviously poses extra challenges for the echr system.

3.2 Selected Challenges that Inter-state Cases Pose for the ECtHR

Individual and inter-state applications alike are dealt with by the same Court and by the same judges; they invoke violations of the same substantive echr Articles; the Court is using in both instances the same interpretative tools. Yet, these two different types of applications pose distinctive challenges to the Court. It seems that this applies particularly to the inter-state applications that concern military confrontations, the so-called instances of ‘lawfare’, whereby states employ law -the echr rules and institutions- as a ‘weapon’ of (or against) war. We can highlight here the following challenges faced by the ECtHR.

3.2.1 Challenge 1: the Resource Implications

Although the opposite can happen,9 inter-state applications usually concern multiple human rights violations. This explains why an inter-state application encompasses or even ‘leads the way’ to follow-up individual applications. Such inter-state cases, especially in the context of military confrontation, require the Court to examine and assess an enormous amount of evidence, witnesses, and claims concerning a major number of victims. The Court is expected to establish facts that are highly contested and which often require onsite visits. Such visits are difficult and costly, and the state controlling the territory might not be thrilled that the ECtHR lawyers and Judges will visit it. Each of such cases involves hundreds of volumes of documents and other relevant materials. The ECtHR needs to review these materials, establish their authenticity, and make rulings on their basis. This task is time and resource consuming.

Some complex individual applications also demand a lot of time and resources, but the inter-state applications represent a paradigmatic shift in terms of the required efforts from the ECtHR. The Court might not have the capacity to process even a relatively low number of inter-state applications. It appears that a well-resourced special ‘court’ within the Court would need to be created to exclusively deal with this type of inter-state applications. However, this is unlikely to happen any time soon. In the meantime, the Court has to admit its limited capacity to establish the facts invoked by the parties in the inter-state cases.

It seems that in the recent case of Georgia v Russia(ii), the Court did exactly that. The ECtHR confirmed that it is not equipped to deal with mass scale military confrontations and, to that end, it decided to refrain from establishing the respondent’s jurisdiction in the situation of the chaos during active hostilities. The Court stated:

Having regard in particular to the large number of alleged victims and contested incidents, the magnitude of the evidence produced, the difficulty in establishing the relevant circumstances and the fact that such situations are predominantly regulated by legal norms other than those of the Convention (specifically, international humanitarian law or the law of armed conflict), the Court considers that it is not in a position to develop its case-law beyond the understanding of the notion of “jurisdiction” as established to date.10

The Court’s stance in this respect might have significant consequences to other inter-state applications pending before it that concern the active phase of military hostilities. This approach of the Court’s majority was immediately criticised by the dissenting Judges, who forcefully contended that:

the role of this Court consists precisely in dealing in priority with difficult cases characterised by “the large number of alleged victims and contested incidents, the magnitude of the evidence produced, the difficulty in establishing the relevant circumstances.”11

The challenge of inter-state cases is in the fact that they can ‘overwhelm’ the Court. The ECtHR can easily spend all its resources on a handful of inter-state cases. That said, the Court can hardly control the docket of inter-state applications. It cannot formally reject applications that meet the echr admissibility criteria, and it cannot know when new applications are going to reach it. However, what the Court can do is choose how to deal with such applications. It has been argued that the Court can be active in suggesting friendly settlements in some cases,12 allowing counter-claims, and endorsing more adversarial proceedings which would place a higher burden on the parties to the case rather than on the Court itself.

3.2.2 Challenge 2: Legitimacy and Effectiveness

Apart from resource implications, inter-state applications are politically sensitive and confrontational. Rushed decision-making can lead to detrimental consequences for both the ECtHR and for the situation that a particular case is concerned with. Such cases require a lot of dedication and careful decision-making. The Court’s reputation is on the line in these cases and the parties try to undermine the legitimacy of the Court to question the credibility of its judgments. We wish to make three points in this respect.

First, the Court can be accused of applying varying standards in its decision making depending on the respondent state. The Russian authorities have recently submitted their first inter-state application against Ukraine13 and they immediately claimed that this application will be a test for the Court as to whether it applies different standards against Russia in comparison to cases against other echr parties.14 If, in the meantime, Russia withdraws from the CoE, the Court will not be given an opportunity to deliver a judgment in this case.

Second, inter-state cases last for years; often, when the judgment in an inter-state case is delivered, the key effects that it produces are rather ‘symbolic’, establishing the liability of a state, and the potential allocation of monetary compensation to the victims. Such delayed judgments can only serve to a limited extent any purposes of conflict resolution or prevent new conflicts in the future. For instance, the above-mentioned judgment in Georgia v Russia(ii) was delivered in 2021 and dealt with the situation that happened in August 2008. It has been shown that the stakeholders consider the reasonableness of the time of proceedings as one of the important determinants of the sociological legitimacy of the Court.15 Indeed, one cannot but agree that ‘justice delayed is justice denied’.

Third, the implementation of inter-state judgments is problematic, and every unimplemented judgment can undermine the reputation of an international tribunal.16 Even before one can look at implementation, establishing the appropriate remedies can prove to be a challenge. The first time that the Court awarded monetary compensation in an inter-state case was in Cyprus v Turkey.17 According to the Committee of Ministers, ‘no payment has been made and no indication that payment will be made has been given’.18 In Georgia v Russia (I) the Court also awarded monetary compensation to the victims19 and, although some progress has been made towards the payment of compensation,20 this has not been done in full just yet. Moreover, it has been observed that the echr parties tend to comply with the requirement to pay just satisfaction to the victims unless these compensations are high or they are awarded in politically sensitive cases.21 Inter-state cases combine these two challenges: they are very often highly controversial and the compensations are high.22 Therefore, it is unlikely that these judgments will easily be executed. This does not mean that individual cases are always easily implemented – rather that inter-state judgments are almost always difficult to enforce. The same difficulties apply in the so-called ‘quasi inter-state’ cases brought by individuals over an issue which is central to an inter-state dispute.23

3.2.3 Challenge 3: the Court’s (Meta-)Function in Inter-state Cases

Last but not least, a core existential challenge that the Court faces in inter-state litigation is the function that it is supposed to fulfil. In its individual cases, the Court has to ‘navigate’ between its technical function and its meta-function. The technical function is to duly provide conflict resolution by remedying a human rights violation or by finding no violation in a case pending before it. The meta-function of the Court is to set standards beyond the outcomes of a particular case; these standards shall be applicable beyond the individual case, that is, apply more generally. In inter-state cases, for the reasons given earlier, even the more straightforward function, the technical one, is challenging. In these cases, the meta-function can be even more problematic as, very often, the Court is merely expected to reiterate obvious and well-established standards, such as that one state should not kill, torture, imprison or displace people and deprive them of their home. These standards are well-established and can hardly further our understanding of human rights law.

1

Committee of Ministers, ‘Situation in Ukraine – Measures to be Taken, Including Under Article 8 of the Statute of the Council of Europe’ (25 February 2022) cm/Del/Dec(2022)1426ter/2.3.

2

A Forde, ‘From Grey Zones to Red Lines: Implications of the Ukraine Conflict on Europe’s Human Rights System’ (Völkerrechtsblog, 1 March 2022): <https://voelkerrechtsblog.org/from-grey-zones-to-red-lines/>.

3

Article 58(3) echr.

5

For a very detailed study of inter-state applications, see, I Risini, The Inter-State Application Under the European Convention on Human Rights (Brill 2018). For more recent developments, see, P Leach, ‘On Inter-State Litigation and Armed Conflict Cases in Strasbourg’ (2021) 2 European Convention on Human Rights Law Review 27.

6

Undoubtedly, the ongoing aggression by the Russian Federation will result in many more applications. These applications will, however, only convert into judgments if Russia does not withdraw from the CoE in the meantime.

7

VP Tzevelekos, ‘Standing: European Court of Human Rights (ECtHR)’ (2019) in Max Planck Encyclopedia of International Procedural Law [MPEiPro] HR Fabri, R Wolfrum (eds), (online edn).

8

Ireland v the United Kingdom 5310/71 (ECtHR, 18 January 1978) paras 239 and 240.

9

See, for examvple, Latvia v Denmark 9717/20 (ECtHR, 16 June 2020). The application concerned one individual.

10

Georgia v Russia(ii) [gc] 38263/08 (ECtHR, 21 January 2021) para 141.

11

Ibid Joint Partly Dissenting Opinion of Judges Yudkivska, Wojtyczek, and Chanturia.

12

See, H Keller and R Piskóty, ‘Friendly Settlements as the Sleeping Beauty in Inter-State Cases: Opportunities and Risks for the European Court of Human Rights’ (Völkerrechtsblog, 28 April 2021): <https://voelkerrechtsblog.org/friendly-settlements-as-the-sleeping-beauty-in-inter-state-cases/>.

13

Russia v Ukraine 36958/21 (ECtHR).

14

See, ‘“Test on Double Standards”: Regarding the Application of Russia to the ECtHR in Relations to Ukraine’ («Тест на двойные стандарты»—об обращении России в ЕСПЧ по поводу Украины) (Regnum, 22 July 2021): <https://regnum.ru/news/polit/3328462.html>.

15

B Çali, A Koch and N Bruch, ‘The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights’ (2013) 35(4) Human Rights Quarterly 955.

16

See, S Dothan, Reputation and Judicial Tactics (Cambridge University Press 2014).

17

Cyprus v Turkey [gc] 25781/94 (ECtHR, 12 May 2014).

19

Georgia v Russia (I) [gc] 13255/07 (ECtHR, 31 January 2019). See, K Dzehtsiarou, ‘Compensation for Victims in Inter-State Cases. Is Georgia v Russia (I) Another Step Forward?’ (Strasbourg Observers, 14 February 2019): <https://strasbourgobservers.com/2019/02/14/compensation-for-victims-in-inter-state-cases-is-georgia-v-russia-i-another-step-forward/>.

20

See, Georgia v Russia (I) 13255/07: <https://hudoc.exec.coe.int/ENG?i=004-14138>.

21

See, F de Londras and K Dzehtsiarou, Great Debates on the European Convention on Human Rights (Palgrave 2015) Chapter 8.

22

For instance, in Georgia v Russia the Court awarded 10 million euros of compensation. See, Georgia v Russia (I) (n 19).

23

VP Tzevelekos, ‘Reparation of the Rights to Property and Home of Displaced Persons Arising from Armed Conflict under the European Convention on Human Rights. Falling Short of the Exigencies of International Law and the Humanistic Purpose of Human Rights?’, in The Rights of Those Displaced by Armed Conflict in the Theory and Practice of Contemporary International Law, E Katselli (ed), (Routledge 2018) 84, 86–95.

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