The Russia-Ukraine War and the European Convention on Human Rights
As with the 2008 Russia-Georgia conflict, the war between Russia and Ukraine—likely to last much longer and be far more brutal than the Georgian conflict—is fought by two States Parties to the European Convention on Human Rights (ECHR). Both are subject to the compulsory jurisdiction of the European Court of Human Rights. And just as it has already filed a case based on the Genocide Convention against Russia before the International Court of Justice (ICJ), that requests the ICJ to issue provisional measures of protection, so has Ukraine filed a new interstate case against Russia before the European Court, asking for interim measures under Rule 39 of the Rules of Court. The Court has now granted them:
The Court has regard to the current military action which commenced on 24 February 2022 in various parts of Ukraine and considers that it gives rise to a real and continuing risk of serious violations of the Convention rights of the civilian population, in particular under Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment or punishment) and 8 (right to respect for private and family life) of the European Convention on Human Rights.
With a view to preventing such violations and pursuant to Rule 39 of the Rules of Court (see Georgia v Russia (II) (no. 38263/08), interim measure, 12 August 2008, Ukraine v Russia (no. 20958/14), interim measure, 13 March 2014, Armenia v Azerbaijan (no. 42521/20), interim measure, 29 September 2020, and Armenia v Turkey (no. 43517/20), interim measure, 6 October 2020), the Court decides, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of Russia 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.
This is the tenth interstate case brought by Ukraine against Russia—coupled with a case brought by Russia against Ukraine—that deals with prior episodes of the conflict. Most recently the European Court held hearings in the jurisdiction and admissibility phase of the Netherlands and Ukraine v. Russia case, which deals with Eastern Ukraine and the downing of the MH17 flight (disclosure: Nottingham’s Human Rights Law Centre, which I co-direct, is acting as amicus curiae in that case). Previously the Court declared admissible the interstate case dealing with Crimea (see more here). Also pending before the Court is a series of interstate cases between Armenia, Azerbaijan, and Turkey regarding the 2020 Nagorno Karabakh conflict.
Enforcing the ECHR in Armed Conflict
This horrible war, fought in the shadow of the ECHR, raises questions of both the enforcement machinery of human rights law and its substance. The first question is how the Court, and the Council of Europe more generally, will handle the Russian invasion and its fallout. The Committee of Ministers has already suspended Russia’s membership in the Council, although this does not affect its obligations under the ECHR, any cases before the Court, or the participation of the Russian Judge at the Court. It is, however, increasingly likely that Russia will either be expelled from the Council of Europe or that it will withdraw of its own volition and denounce the ECHR.
The reputational costs of doing so that once seemed unimaginable now appear trivial compared to those that Russia has already incurred due to its war on Ukraine. And if Russia does leave the Council and the Convention, any pending cases before the Court would still proceed and its judgments would remain legally binding. Yet if this happens Russia is likely to ignore the Convention’s machinery altogether, whatever the law might say (for more detailed analysis, see here).
Substance of the ECHR in Armed Conflict
What, then, of substance? How does the ECHR apply to the Russo-Ukrainian war, regardless of the problem of enforcement? Answering this question raises two distinct issues, that unfortunately are often conflated. First, when does the Convention apply extraterritorially, to the conduct of a State affecting individuals outside its sovereign territory? Second, what do specific rules of human rights law (and the European Convention in particular) say on specific problems arising during armed conflict? And how do they interact with the relevant rules of international humanitarian law (IHL)? How do, for example, human rights rules on the deprivation of life and liberty interact with those of IHL (see more here and here)?
These two issues are conceptually separate. The threshold extraterritoriality issue arises equally in peacetime—does the ECHR apply, for example, when British intelligence agencies intercept the communications of individuals outside the UK, or when Russian assassins kill people outside Russia, e.g. in the UK? (see more here on the Court’s recent judgment on the killing of Alexander Litvinenko).
Similarly, the issue of the concurrent application of human rights and IHL exists equally in intra-territorial situations as in extra-territorial ones—after all, from Ukraine’s perspective, virtually all of the conflict is taking place on its own sovereign territory. But as I said, the two issues are conflated all the time. The European Court has produced dozens of contradictory and confusing judgments on these matters. In particular, it has drawn shifting and arbitrary lines, using the jurisdictional extraterritoriality threshold to shield itself from deciding difficult questions of law and fact, often wary of political backlash.
Some powerful Western states—including the United States and United Kingdom—have themselves, like the Russian Federation, resisted the growing trend of applying human rights extraterritorially and in armed conflict. Much of that resistance is either wrong in principle or based on misapprehensions.
The basic point that human rights, which are grounded in universal and inherent human dignity, are not extinguished just because two States are at war cannot seriously be disputed. Indeed, the very text of the derogation clause in Article 15(1) ECHR confirms the Convention’s continuing applicability in wartime. It expressly allows States to derogate from their obligations, but only to the extent strictly required by the exigencies of the situation, in “time of war or other public emergency threatening the life of the nation.” And Article 15(2) further allows for derogation from the right to life ”in respect of deaths resulting from lawful acts of war,” an option no state has used so far (at least not explicitly so). Neither Ukraine nor Russia has derogated from the Convention in respect of the ongoing situation.
The Court’s most recent pronouncement on extraterritoriality and the applicability of the Convention in armed conflict was its January 2021 judgment in Georgia v. Russia No. 2, dealing with the 2008 conflict (for extended analysis see here). The Court’s bottom line was that it excluded purely kinetic operations from the scope of the Convention, at least insofar as Russia’s extraterritorial actions were concerned. The Court found that the Convention couldn’t apply in what it called a “context of chaos”, the active hostilities phase of an international armed conflict. Thus, the Court refused to examine whether particular attacks by Russia were compliant with the right to life or any other Convention right; one bizarre possible consequence of the Court’s position might actually be that the aggressor has fewer human rights obligations than the victim, in the sense that its “context of chaos” reasoning might not apply equally to the territorial state.
But, however questionable it is on kinetic uses of force, the Court’s approach actually went beyond its previous restrictive decision on the same issue, Bankovic v. Belgium and others, which dealt with the 1999 NATO bombing of the Belgrade TV station. Even though it did not want to be the final arbiter of every use of force in the Georgian war, the Court nonetheless held that the procedural positive obligation to effectively and independently investigate potentially unlawful killings continued to apply even during the active hostilities phase of the conflict, that any person detained in the course of the hostilities was protected by the Convention, and that the Convention applied fully after the hostilities had ended and Russia had established control over the territories it occupied.
The upshot of the Court’s current approach is simply that it wants to discourage litigation about the conduct of military operations. In its opinion, judging those operations under the right to life, interpreted in light of IHL, would be too difficult a task, for which the Court lacks expertise and reliable fact-finding tools. That means that, for example, the shelling of Ukrainian cities would not, under the Georgia v. Russia No. 2 approach, be regarded as falling within the jurisdictional scope of the Convention.
But that position is in my view entirely unsustainable, as a matter of legal principle or even purely pragmatically. The Grand Chamber that decided the Georgia v. Russia case was very much split, with some powerful dissenting opinions. And the turnover on the bench means that the precedential value of the judgment is uncertain.
On a proper interpretation of Article 1 ECHR, kinetic operations—like any deprivations of life—should fall within the scope of the Convention and the Court must look at the substance of such cases, applying the Convention and using IHL as an interpretative aid in doing so. It will, however, take many years for any cases arising out of the current conflict to be litigated on the merits, and as explained above it is very possible that Russia will soon be denouncing the Convention in any event.
Marko Milanovic is Professor of Public International Law and Co-Director of the Human Rights Law Centre at the University of Nottingham School of Law. He is co-editor of EJIL: Talk!, the blog of the European Journal of International Law, as well as a member of the EJIL’s Editorial Board.
Photo credit: Guilhem Vellut
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