Dzehtsiarou, Kanstantsin

English

<intR>²Dok

The Judgement of Solomon that wentwrong: Georgia v. Russia (II) by theEuropean Court of Human RightsKanstantsin Dzehtsiarou 2021-01-26T12:19:26On 21 January 2021, the European Court of Human Rights (the Court or ECtHR)delivered its long-awaited judgment in the inter-state case Georgia v. Russia (II).This case concerns the war between Georgia and Russia that took place in 2008 inSouth Ossetia and Abkhazia. Both of these regions are de jure parts of Georgia butsince the collapse of the Soviet Union in 1991 they were not effectively governed bythe central Georgian authorities. During the night of 7 to 8 August 2008, Georgianartillery attacked Tskhinvali (the administrative capital of South Ossetia). On 8August 2008, Russian forces entered the territory of South Ossetia and Abkhazia.The hostilities between Russian and Georgian troops lasted until 12 August 2008 atwhich point a ceasefire was concluded. Since then a significant military contingentof Russian troops has been located in South Ossetia and Abkhazia. The Georgianauthorities complained to the ECtHR that Russia committed human rights violationsboth during and after the war.It seems that the majority of the Court aspired to deliver a ‘Judgement of Solomon’and offer a shared victory to both parties. On the one hand, the Court did notestablish the jurisdiction of Russia over the war zone and effectively absolved it fromsome obligations under the European Convention on Human Rights (ECHR) duringthe active phase of hostilities (between 8 and 12 August 2008), which is a significantwin for the Russian authorities. On the other hand, the ECtHR found massivehuman rights violations on the territory controlled by Russia after the active periodof hostilities, and this is undoubtedly a win for the Georgian authorities. However, incoming to this ‘Judgement of Solomon’, the majority of the Court had to completelyreconsider the recent developments in a complex matter of jurisdiction of the Courtand left so many questions unanswered that this judgment will be in the minds andhearts of the ECtHR commentators for many years to come. Finally, this judgmentwill have significant ramifications on pending cases in which the issue of contestedjurisdiction during military hostilities is at stake.What did the Court decide?The Court’s findings in this case should be divided into two parts: First, the ECtHRconsidered if the respondent state had jurisdiction over the territory where violationswere taking place. Second, if the respondent state did exercise jurisdiction, whetherit is responsible for any human rights violations.Regarding the first question, the Court decided to divide the period of conflict intoactive hostilities (8-12 August 2008; ‘active hostilities’ phase) and subsequentevents. One of the most significant findings of this judgment is that Russia had- 1 -no jurisdiction during the former period. It means that Russia will arguably not beresponsible for many human rights violations committed by its troops in Abkhaziaand South Ossetia as well as nearby Georgian regions between 8 and 12 August2008. I said ‘many human rights violations’ but not all because the Court stated thatthe Russian authorities are still under the procedural obligation to investigate deathseven if they happened during hostilities (para 331). The Court also consideredalleged arbitrary detentions of civilians contrary to Article 5 by Russian authoritieseven during the active phase of hostilities. However, the key finding that requiresa detailed examination here is the lack of Russian jurisdiction during the phase ofactive hostilities. The Court considered two sources of jurisdiction: Effective controlover the territory and ‘state agent authority or control over individuals’. The ECtHRrejected the first ground of jurisdiction by suggesting that a war zone creates asituation of chaos and it is hardly possible to talk about effective control in thesecircumstances (at para 126):“(…) in the event of military operations – including, for example, armedattacks, bombing or shelling – carried out during an international armedconflict one cannot generally speak of ‘effective control’ over an area. Thevery reality of armed confrontation and fighting between enemy militaryforces seeking to establish control over an area in a context of chaosmeans that there is no control over an area.”The ECtHR then looked into whether there was “State agent authority and controlover individuals” (para. 127). The Court admitted that it had previously establishedjurisdiction in comparable situations but such situations were isolated and specificacts (para. 132). Conversely, the scope of confrontation here prevents the Courtfrom establishing extraterritorial jurisdiction of the respondent state, so the argumentof the judges. This line of reasoning culminates in paragraph 141 of the judgmentthat needs to be quoted here in full:“(…) having regard in particular to the large number of alleged victimsand contested incidents, the magnitude of the evidence produced, thedifficulty in establishing the relevant circumstances and the fact that suchsituations are predominantly regulated by legal norms other than those ofthe Convention (specifically, international humanitarian law or the law ofarmed conflict), the Court considers that it is not in a position to developits case-law beyond the understanding of the notion of ‘jurisdiction’ asestablished to date.”For that reason, the Court decided that the respondent state did not executejurisdiction over the territory of hostilities between 8 and 12 of August 2008.Concurring Judge Keller tried to explain this very limited reasoning by saying that:“ (…) had the Court held otherwise as to the question of jurisdiction duringthe active phase of hostilities, its duty would have been to assess theconduct of the respondent State in terms of international humanitarian lawin order to resolve the applicant Government’s complaint under Article 2”.(Concurring Opinion of Judge Keller, para. 25)- 2 -It seems that the Court wanted to make a clear distinction between internationalhuman rights law and international humanitarian law – the distinction that this veryCourt has been blurring for years.On the other hand, the ECtHR established the ‘effective control’ of the Russianauthorities over South Ossetia, Abkhazia and the ‘buffer zone’ after the activepart of hostilities, namely between 12 August and 10 October 2008. The Courtsubstantiated this finding by the evidence of military, economic and politicalsupport by Russia to these regions. The ECtHR relied on the reports by the EU’sFact-Finding Mission as well as on other reports by international NGOs, officialstatements of the Russian authorities and various treaties concluded betweenRussia and Abkhazia and South Ossetia. After that the Court moved on and foundvarious human rights violations attributable to the Russian authorities. The Courtfor instance identified the administrative practice of killing and torturing civilians,arbitrarily arresting them, torching and looting of houses in Georgian villages andmany others.What did the dissenting judges argue?Unsurprisingly, the key issue of disagreement between the majority and minority ofthe Court was the issue of whether Russia had jurisdiction during the active phaseof hostilities. The dissenting judges attacked the newly established principle ofinterpretation of the ECHR from various angles. Judge Grozev, for example, focusedon the fact that the reasoning of the majority creates a legal vacuum in Europe. Inother ways, those people that were under the protection of the Convention before 8August 2008 and after 12 August 2008 were removed from its protection betweenthese dates by the mere fact that they were in the war zone. For Judge Grozev, suchlegal vacuum in human rights protection should be excluded.Judges Yudkivska, Pinto de Albuquerque, Wojtyczek, Lemmens and Chanturia(in different combinations) argued that the majority’s reasoning is inconsistentand challenging. For them it confuses the case law, undermines the authority ofthe Court, weakens the protection of the Convention and runs counter to its spirit.Moreover, for some of them, the majority did not strike the right balance betweeninternational humanitarian law and international human rights law.Why is this judgment important?Although this judgment was probably designed as a ‘win-win’ judgment, it is asignificant loss for the Court’s role in protecting human rights in Europe in the longrun. It seems to undermine the major recent developments of the case-law on thejurisdiction of the Convention in military contexts. The majority of the Court in twopages of reasoning decided that the Convention does not apply to active phasesof military confrontations. This is problematic because the ECHR is not applicablewhen it is needed most, but also because it creates many questions of how thisinterpretation can be applied in practice. Judge Keller argued that the reasoningof the majority might be only appropriate in inter-state cases but would perhaps bedifferent in cases of individual applications (Concurring Opinion of Judge Keller, atpara. 13). However, it is hardly possible as a matter of principle to argue that the- 3 -Convention is not applicable to the active phase of hostilities in inter-state cases butit is in the case of individual applications.The reasoning of the majority has left many questions unanswered. One of the mostpertinent of them is what actually is meant by the active phase of hostilities. In thewar between Georgia and Russia this period is relatively easy to establish but thereare plenty of conflicts that do not stop with the ceasefire agreements or simply carryon without any formal acknowledgments. Does this mean that in all these casesthe Convention is not going to be applicable? Is this principle only applicable tolawful acts of war and not to de facto military confrontations? This distinction seemsartificial and unclear. This reasoning means that the outcomes of some pendingcases before the Court becomes absolutely unpredictable. Perhaps the Court willhave to deny the protection of the Convention to the victims of the recent conflict inNagorno-Karabakh between Armenia and Azerbaijan. The outcomes of the casesoriginating from the hostilities in Eastern Ukraine are even less clear. This judgmentcan hardly be considered a good judgment because the latter clarifies the applicablelaw – rather than confusing it.Another significant consequence of this case is that it seems that the Court is readyto give up on massive human rights violations because they are too difficult todeal with. I have already quoted paragraph 141 of the reasoning of the majoritythat effectively makes a statement to that effect. The dissenting judges Yudkivska,Wojtyczek and Chanturia have pointed out:“We are simply astonished by these arguments. In our view, the roleof this Court consists precisely in dealing in priority with difficult casescharacterised by ‘the large number of alleged victims and contestedincidents, the magnitude of the evidence produced, the difficulty inestablishing the relevant circumstances’.” (Partly Dissenting Opinion ofJudges Yudkivska, Wojtyczeck and Chanturia, para. 9)The Court, which was designed to be a bulwark against totalitarianism and ultimatelyprevent war, decided not to deal with massive human rights violations as they aretoo complex and demanding.As many dissenting judges pointed out – the Court allowed the rupture of EuropeanPublic Order. It is for the first time in history that the ECtHR failed to establishjurisdiction in relation to people living on a territory which would otherwise beprotected by the Convention. Prior to this judgment, the Court would always finda party responsible for human rights violations if these violations happened withinthe Convention’s territorial space. In this case, it is unlikely that Georgia can beblamed for some of the violations that happened between 8 and 12 of August 2008and Russia is cleared by the Court from some human rights obligations during thisperiod. Moreover, this judgment creates a very questionable incentive for states toengage in open massive wars rather than conduct isolated and specific military acts. - 4 -The author would like to thank Andrew Forde for his helpful comments on the earlierdrafts of this blog-posts. All mistakes remain the author’s fault entirely. - 5 -

The Judgement of Solomon that went wrong: Georgia v. Russia (II) by the European Court of Human Rights

https://intr2dok.vifa-recht.de/servlets/MCRFileNodeServlet/mir_derivate_00009741/The_Judgement_of_Solomon_that_went_wrong_Georgia_v_Russia_II_by_the_European_Court_of_Human_Rights.pdf

The Judgement of Solomon that went wrong: Georgia v. Russia (II) by the European Court of Human Rights

Abstract

Similar works

Full text

Available Versions

<intR>²Dok