The War in Eastern Ukraine – Will the European Court of Human Rights rise to the Challenge?

Slavyansk

Source: abc.net.ua

The war in Eastern Ukraine is perhaps Europe’s most serious of the early 21st century, both in terms of devastation and international ramifications. It is also a prime example of a modern armed conflict, characterised by contemporary wartime dynamics including a nebulous range of state and non-state entities, which significantly complicate the task of determining the jurisdiction of warring parties. The concept of jurisdiction has traditionally been viewed as one of an essentially territorial nature. In recent decades, however, the European Court of Human Rights’ understanding of it has evolved, becoming increasingly receptive to the idea that it may be exercised outside a state’s own territory.

The issue of extraterritorial jurisdiction is of particular relevance in conflicts, such as in Eastern Ukraine, featuring the involvement of a state foreign to that territory, whether directly so or in support of a secessionist entity. While the Court has over time developed various interpretations, the war in Eastern Ukraine, due to its scale and international scope, is likely to test the Court’s approaches to extraterritorial jurisdiction to the limit, exposing potential flaws and gaps in previous readings of the European Convention on Human Rights.

Determining the extent of the Russian Federation’s involvement in the conflict in Eastern Ukraine, and responsibility for grave human rights violations, is understandably complicated by official denials of the presence of both Russian troops in Eastern Ukraine and support for the separatists, as well as extensive efforts to conceal evidence of this. The task is also made difficult due to the sheer diversity of pro-Russian armed groups operating in the Luhansk and Donetsk regions, some bearing greater degrees of autonomy from the central structures of the ‘people’s republics’ and possibly Russia too. In international law one would normally assume that Ukraine has jurisdiction over its own territory, but in circumstances where a state has lost control of part of its territory, the question of ascertaining its prevailing level of jurisdiction there, and subsequent obligations to those citizens concerned, becomes a more complex one.

Future litigation in Strasbourg concerning Eastern Ukraine will also revisit the thorny issue of the European Convention on Human Rights’ degree of extraterritorial application, yet to be conclusively satisfied to this day. The Court has ruled on a number of scenarios involving varying levels of extraterritorial jurisdiction, ranging from wartime situations to violations of a more incidental nature. But although its judgments increasingly confirm that jurisdiction cannot solely be defined on the basis of territory, there is still no definitive answer to the question of its scope, stemming from Article 1 of the European Convention on Human Rights.

 

The case of Loizidou, arising from Turkey’s invasion of northern Cyprus, was particularly significant in broadening the Convention’s extraterritorial application. The Court introduced a test of ‘effective control,’ establishing that Turkey exercised overall control over northern Cyprus, largely as a result of its substantive military presence, and could thus be held responsible for acts and violations of the local separatist authorities. The later, and highly controversial, case of Banković, triggered by Yugoslav citizens affected by NATO bombing during the Kosovo war, however asserted that a state’s jurisdictional competence was fundamentally territorial, and could only exceptionally be engaged extraterritorially. Despite the significance of its ruling, ensuing cases have queried Banković’s restrictive reading of Article 1 of the Convention, emphasising approaches other than a focus on territorial jurisdiction, or rather personal and physical control. The challenge to Banković’s relevance most widely accepted by practitioners and academics today is Al-Skeini, where the Court stated that a respondent state’s obligation to secure rights could be determined by the ‘control and authority’ it exercised over the individual litigant, regardless of territorial nexus.

One significant group of extraterritorial scenarios examined by the Court has been that of secessionist conflicts or breakaway regions. In several of these situations, it has been relevant to assess the degree of assistance nascent or developed secessionist entities have received from an outside state and contracting party to the Convention. Such assistance may even amount to effective overall control of the territory of the secessionist entity, equating potentially to occupation; examples, as listed in Loizidou, include military action by an army outside of its borders, resulting in effective control of another sovereign state’s territory, and a foreign state’s control of a subordinate local administration or secessionist entity. Another important consideration, and not necessarily exclusive to the foreign entity involved, is that of a state’s positive obligations to use all available means to guarantee the Convention rights of individuals within its territory, even if not under its control; an important example of this was highlighted in Ilaşcu, where the Court ruled that Moldova still exercised jurisdiction over individuals detained in Transnistria, having failed to discharge its positive obligations to them, despite its lack of effective authority in the breakaway region.

Based on the factual circumstances of the war in Donbass, it is plausible that the Court would at least seek to employ a test of effective control to establish either or both Russia and Ukraine’s jurisdiction in Eastern Ukraine. Ilaşcu is likely to be viewed as a leading authority, given its similar context of extraterritorial involvement in support of a secessionist entity on the territory of a fellow contracting party, the consequences of which may entail jurisdiction shared by two states.

If factually proven, Russia’s effective control could be determined on the basis of its military presence in the Donbass and influence over subordinate separatist organs in the region, thus activating its responsibility under Article 1 to deliver the entire range of significant Convention rights. In the absence of effective military control of certain areas of the Donetsk and Luhansk regions, Ukraine may still be found to exercise positive obligations to its citizens residing there. There is widespread evidence of the Ukrainian authorities potentially failing to discharge their responsibilities to guarantee Convention rights in the conflict zone; prominent examples of such conduct may extend to the central authorities’ alleged failure to do everything within their powers to free hostages held by pro-Russia rebels, as well as the suspension of state transfers to the Donetsk and Luhansk regions, including vital medical supplies, and claims of pro-Ukrainian volunteer battalions withholding humanitarian aid intended for Eastern Ukraine.

The relevance of Al-Skeini’s stress on ‘control and authority over an individual’ to cases arising from Eastern Ukraine is as of yet unclear; much would seem to depend on the very nature of the individual applications submitted to the Court. However, its emphasis on physical control would seem to apply for extraterritorial abductions and detentions in Eastern Ukraine, such as the capture by pro-Russia rebels and eventual transfer to Russian custody of Nadiya Savchenko, a Ukrainian pilot.

 

While in recent decades the Court has, as earlier evidenced, proven capable of entertaining new approaches to extraterritorial jurisdiction, there remain a number of potential wartime scenarios where the concept’s scope remains unclear. Michael O’Boyle, Deputy Registrar of the European Court of Human Rights, has highlighted a few such situations as extraterritorial bombings within the Convention’s sphere, military strikes launched from the territory of a contracting party and bearing destructive consequences beyond its own borders, as well as the operations of special forces abroad; [1] there are a number of accounts of such incidents, allegedly involving forces of or allied to Russia, throughout the conflict in Eastern Ukraine. O’Boyle also states that the Court’s position on the extraterritorial arrest, ill-treatment and execution of individuals, where there is effective control of territory, is still unclear. [2] Numerous scholars have called on the Court to resolve the discrepancy in its interpretation of territorial and aerial effective control, dating to Banković; [3] it is not inconceivable that an application from Eastern Ukraine could be brought as a result of a violation arising from aerial bombing, whether of an extraterritorial nature or not.

Questions also remain, in the wake of Al-Skeini’s consolidation as the Court’s leading authority on extraterritorial jurisdiction, regarding the justiciability of other less conventional wartime situations; Marko Milanović has raised extraterritorial complicity scenarios and targeted killings abroad as examples, [4] claims of which have been made vis-à-vis Eastern Ukraine. The conflict has on occasion been described by military analysts as a non-linear or hybrid war, and it is important that the Court remain in tune with complex evolutions in warfare practised within its judicial sphere.

Nonetheless, the tests for extraterritorial jurisdiction available to the Court, or at least thus far developed, may not be fully satisfactory for delivering extensive justice in Eastern Ukraine, given certain aspects of the war itself. The rebel ranks have throughout the conflict’s duration been filled with large numbers of Russian citizens. While there is much evidence for direct Russian state and military interference in Eastern Ukraine and in support too of the separatists, one cannot discount that Russian volunteers, likely running in their thousands, are at the heart of the rebel forces, whether on a rank-and-file or senior level. Is Russia’s lack of noticeable efforts in halting or discouraging the flow of its citizens to fight in Eastern Ukraine, an action in itself a violation of the criminal code of the Russian Federation, also indicative of Russian jurisdiction in the conflict?

Another problem concerns the jurisdiction of irregular armed groups, the latter’s involvement a critical feature of the war in Donbass. Whether loyal to Ukraine or the ‘people’s republics’ and possibly Russia too, even fully integrated within a chain of command, these formations have borne different and at times fluctuating levels of autonomy from their central military structures. The Convention is designed to impute violations to its contracting states, but there is a real danger in the context of Eastern Ukraine that grave crimes, committed by forces with a perhaps tenuous jurisdictional link to Ukraine and Russia, may go unpunished, at least under its scope.

Moreover, although a contracting party’s denial of its extraterritorial involvement in a set of events does not in any way signify that a Court will accept such a premise, it no doubt greatly complicates the Court’s work. Russia’s consistent and forthright efforts at denying any form of involvement in the conflict, together with persistent rejections by Ukraine and the rebels of responsibility for more isolated incidents during hostilities, coupled with considerable efforts by all warring parties at hiding relevant evidence, will be a sizeable obstacle. In the Ilaşcu case, the Grand Chamber set out on a fact-finding mission of unprecedented ambition, four of its judges travelling to Moldova and Tiraspol and taking evidence from 43 witnesses; [5] any future litigation in Strasbourg concerning the war in Eastern Ukraine, including on the question of jurisdiction, will prove to be far more testing.

 

Faced with a multitude of human rights violations, as well as a variety of increasingly complex wartime scenarios in which they may occur, the European Court on Human Rights, in its capacity as a leading guarantor of peace and the rule of law in Europe, must continue to build on existing approaches to the notion of extraterritorial jurisdiction and expand their applicability. It is of the utmost necessity that the Court achieve this, in the hope of delivering justice as extensively as possible in Eastern Ukraine.

 

[1] Coomans, Fons and Menno T. Kamminga (eds). “The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on ‘Life after Bankovic.’” Extraterritorial Application of Human Rights Treaties, p.138.

[2] Ibid., p.137.

[3] Kearney, Michael. “Extraterritorial Jurisdiction of the European Convention on Human Rights.” Trinity College Law Review 5 (2002), p.138.

[4] Milanović, Marko. “Al-Skeini and Al-Jedda in Strasbourg.” The European Journal of International Law 23.1 (2012), pp.132-33.

[5] Rainey, Bernadette, Elizabeth Wicks, and Clare Ovey. Jacobs, White and Ovey: The European Convention on Human Rights, p.95.

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