Irish Centre for Human Rights Blog

Dr Andrew Forde is a senior civil servant in the Irish Government who has extensive international human rights experience, principally with the Council of Europe and the Organisation for Security and Cooperation in Europe with a particular focus on south eastern Europe and the south Caucasus. He has recently successfully defended his doctoral research on the application of the European Convention on Human Rights in contested European territories.

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It has been 10 years since Judge Giovanni Bonello famously lamented that the European Court of Human Rights (the Court) has been ‘bedevilled by an inability or an unwillingness to establish a coherent and axiomatic regime, grounded in essential basics and even-handedly applicable across the widest spectrum of jurisdictional controversies’ (Al-Skeini / Concurring Opinion, §4). A series of seemingly contradictory positions related to ‘jurisdiction’ under Article 1 of the European Convention on Human Rights (ECHR) in recent times suggest that serious challenges remain. However, is the jurisdictional conundrum the problem in itself, or a symptom of the problem? Against the backdrop of the recent Georgia v. Russia (II) Grand Chamber judgment, I will offer some brief reflections on whether there is an alternative, more efficacious lens through which we might consider the general application of human rights standards in European territorial ‘grey zones’.

The point of departure is that the GE v RF (II) judgment both contributes to and is symptomatic of a broader systemic problem facing the Council of Europe’s human rights machinery in its attempts to reconcile Article 1 with the object and purpose of the ECHR as a ‘constitutional instrument of European public order’ (cf. Loizidou, §75) in so-called territorial ‘grey zones’.

Abkhazia and South Ossetia are just two of a number of ‘grey zones’ in Europe. These are contested European territories which normally lie within the ECHR area, but whose access to the monitoring, advisory and judicial mechanisms of the Council of Europe is severely curtailed. The Court’s determination of ‘jurisdiction’ under Article 1 of the ECHR and the execution of the eventual judgments in cases related to these areas is never without significant complexity and controversy. The GE v RF (II) judgment is consistent with this trend.

By way of background to this case, on 21 January 2021, the Grand Chamber of the European Court of Human Rights handed down its landmark judgment in the case of GE v RF (II), relatedto the 2008 war between Georgia and the Russian Federation regarding two contested territories in Georgia: Abkhazia and South Ossetia. The judgment is highly significant in that the Court found multiple violations of the ECHR as a result of the administrative practice of Russia and confirmed that Russia had a procedural obligation under Article 2 of the European Convention on Human Rights to carry out adequate and effective investigations during as well as after the period of ‘active hostilities.’

However, beyond this procedural obligation to investigate, the Court was unwilling or unable to establish a jurisdictional link with the Russian Federation during the period of ‘active hostilities’ in Abhkazia and South Ossetia from 8 to 12 August 2008. In its reasoning, the Court cited the general inability to speak of ‘effective control’ over an area during an international armed conflict (§126), which precluded the possibility of establishing jurisdiction. The Court went further to articulate the more general view that ‘the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area’ (§126). On the other hand, the Court considered that the Russian Federation exercised ‘effective control’ over South Ossetia, Abkhazia and the ‘buffer zone’ from 12 August to 10 October 2008, the date of the official withdrawal of the Russian troops; in other words, those areas were occupied by Russian armed forces during that time (§173, 174).

In any event, the Court found that situations of international armed conflict are predominantly regulated by other legal norms, specifically, international humanitarian law (IHL) or the law of armed conflict (§141). With that, the Court did not say that rights do not apply, just that the Court cannot ascertain who is responsible for securing those rights. In other words, the Court implies that the ECHR is normally applicable, but not normally enforceable.

Although the failure to establish jurisdiction during the active phase of hostilities is normatively questionable and, as partially acknowledged by the Court itself (§140), will be seen as a denial of access to international justice for those victims of actions during that period, the judgment is problematic for several other, broader reasons.

Firstly, the degradation of the control mechanism of the ECHR in times of war harkens back to an era of risk-avoidance by the Court defined by Banković and Others v. Belgium and Others. The Court essentially found it too difficult a case to assess without slipping into a determination of which side had just cause for war. Secondly, the prima facie arbitrary distinction between active and non-active hostilities, delineated almost exclusively by ceasefire agreement, will cast a long shadow. With this distinction between active and non-active phases of hostilities, the Court may have inadvertently forged a defence for the most unscrupulous violators of international human rights law from the embers of the effective control doctrine. Does this mean, for instance, that jurisdiction cannot be established if a civilian plane is shot down during active hostilities? Or does it imply that periods of ceasefire trigger jurisdiction, even if those periods last a matter of days, hours or even minutes?

The Court’s finding that a context of chaos not only means that there is no ‘effective control’ but also excludes any form of ‘State agent authority and control’ over individuals (§137), is doubly problematic when read in conjunction with the additional reference to the difficulty in establishing the relevant circumstances on the ground. This seems to put ‘contexts of chaos’ effectively off-limits for the ECHR, just when ECHR protection is needed most.

Lastly, the ruling is problematic for its subservience to IHL, despite the absence of any meaningful control or accountability framework for IHL and the clear trend towards a recognition of international human rights law’s concurrent applicability in times of war.

None of this, of course, is irreconcilable. It is a determination based on a specific context and set of circumstances. It may be nuanced or undone in a future judgment.

Some aspects of the Court’s approach may even be understandable, to a limited extent. For example, the dichotomy faced by the Court was to establish jurisdiction during the period of active hostilities, or to accept a limited vacuum. On the one hand, the establishment of jurisdiction requires clear confirmatory evidence which is always contestable and rarely easy, though certainly not impossible, to verify in times of war. On the other hand, the acceptance of a vacuum runs contrary to European ordre public (e.g. Mozer, GC §137). The Court’s finding that Russia retained a procedural obligation under Article 2 during the period of active hostilities is consistent with well-established case-law, so cannot reasonably be seen as an attempt by the Court to reconcile the jurisdictional vacuum that it was consciously recognising. This is a real problem, which cannot be satisfied with simple solutions.

Additionally, it is unusual that this case seems to depart from previous practice. For instance, the Court has dutifully issued Interim Measures (IM) elsewhere during periods of active hostilities. Between September and December 2020, the Court issued a flurry of IMs under Rule 39 of the Rules of the Court regarding the 2020 Nagorno-Karabakh war, instructing several belligerent parties to the conflict to refrain from military action, which might entail breaches of the Convention rights of the civilian populations. Although IMs are not designed to conclusively determine jurisdiction, the Court nonetheless recognised that the hostile activities underway in and around Nagorno-Karabakh at the time posed a particular risk to Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) of the Convention. It is inconceivable that the Court would refuse to respond to an IM request during active hostilities, indeed the purpose of IMs is for cases where there is an imminent risk of irreparable harm. Then in early January 2021, in an admissibility decision the Court found Ukraine v. Russia (re Crimea) to be partly admissible, having determined that Russia had jurisdiction over Crimea within the meaning of Article 1 from 27 February 2014. That was the day it is alleged that over 100 heavily armed men stormed the buildings of the Supreme Council and the Council of Ministers, and the same day that Russia allegedly dramatically increased its direct military presence in Crimea without Ukrainian consent, actions which appear prima facie to be actively hostile in nature.

The Court has dealt with cases related to these regions on numerous other occasions with a view to determining which Member State (if any) has jurisdiction, and which is responsible for an alleged violation of the ECHR (again, if any). It has struggled to maintain coherence over time, largely due to the disparate nature of contexts and circumstances, as well as perhaps due to other unknown external factors.

What the Court has well-established is that whilst jurisdiction is ‘primarily’ territorial (Banković, §59), exceptionally states can exercise jurisdiction extraterritorially on the basis of ‘effective control’ of an area or based on ‘state agent authority and control’. It has also recently recognised that ‘special features’ might trigger a jurisdictional link (Hanan v Germany, GC §142). Intra-territorial anomalies within the Council of Europe region, whereby a jurisdictional link for the purposes of the ECHR is found to rest with a state other than the territorial state, are typically viewed through the extraterritorial lens. Much has been written (for instance here and here) about the most prominent cases of Loizidou, Bankovic (decision), Catan, Sargsyan/Chiragov and Mozer to name but a few (see also ECtHR Article 1 Factsheet). Many of these and other relevant judgments have faced profound difficulties in terms of execution. The almost desperate attempts to identify cohesive patterns in the ECtHR’s Article 1 case-law therefore, has become circularly unproductive, and has done little to improve the lives of affected populations.

If the question is how to ensure the effectiveness of the ECHR, perhaps the Court is not the only answer.

The Council of Europe Committee of Ministers (CM) has been seized of the challenge of ‘grey zones’ for many years, but has struggled to make headway given the entrenched political conflict which lies at the heart of the problem.

What has received precious little attention is how the Council of Europe ‘System’ more broadly engages with these regions. That System comprises not just a judicial mechanism (ECtHR) and overarching political authority (CM), but also a rich framework of statutory and non-statutory bodies such as the Secretary General, the Commissioner for Human Rights as well as the relevant Council of Europe monitoring bodies. Each of these can help, in practical, meaningful ways, to build dialogue, capacities and trust with functional authorities and civil society. Their engagement can have a real and potentially immediate impact on ECHR rights holders in these regions. The expertise is unique in a European context and their experience of cooperation is unparalleled. Their mission is to help safeguard European public order and to support Council of Europe member States to ensure the ECHR is practical and effective, not theoretical or illusory.

Taking into account the seriousness of human rights issues at stake, and the risks of non-engagement and the particular characteristics of each conflict, the fundamental role of these components of the system deserves significantly more attention. Their effective functioning in the context of ‘grey zones’ is not only desirable, it is critical to realising the object and purpose of the ECHR.