4 April 2022
by Professor Bill Bowring, Birkbeck College, University of London, Barrister
Intervention at a meeting of the Parliamentary Assembly of the Council of Europe: Committee on Legal Affairs and Human Rights on 4 April 2022
In what follows I am careful not to refer to “Russia”, especially since so many Russians are opposed to the war, but to the Kremlin, the Russian regime, and in this case to Putin, whose disastrous adventure the Russian invasion of Ukraine since 24 February is.
The legal characterisation of the war is straightforward. Putin’s invasion of 24 February is a flagrant violation of the UN Charter, of the sovereignty of Ukraine and of the Article 2(4) prohibition on the use of force “against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations.”
Putin has made it clear that in his view Ukraine is an artificial nation, created by V. I. Lenin, which has no right to exist. Putin is also enraged by the fact that the Ukrainian SSR had the status of a Union Republic, with the right to secede, in the USSR, and was a founder member of the UN in 1945 with its own seat (with Belarus) on the UN General Assembly. It became an independent sovereign state automatically in December 1991.
Russia cannot claim that it is acting in self-defence, or that it has the authorisation of the UN Security Council. Even the apparent claim of humanitarian intervention, to prevent genocide in the separatist regions of DNR and LNR, has seemingly been abandoned in its recent submission to the ICJ in the Ukraine v Russia, genocide case.
Less than a month after Putin’s invasion of Ukraine, Russia ceased to be a member of the Council of Europe. On 16 March 2022 the Committee of Ministers decided to expel Russia from the Council of Europe with immediate effect, but without spelling out the consequences.
Was it a surprise? Russia had come close to expulsion in 2000 soon after it joined the Council, following Lord Frank Judd’s excoriating reports as rapporteur on Russia’s gross human rights violations in Putin’s Second Chechen War. But Tony Blair invited Putin on a private visit to London in April 201, including tea with the Queen. Putin publicly thanked Blair a year later for having saved Russia from expulsion.
Again, the Council of Europe imposed sanctions on Russia following its illegal annexation in 2014 of Crimea and support for separatists in Donbas. But the sanctions were removed, Russia was restored to its rights in PACE, and it paid its arrears of subscription, in a singularly opaque deal done in 2019.
Russia has ratified many treaties of the Council. It is a party to the following regional human rights treaties: the European Convention on Human Rights and several of its protocols; the Revised European Social Charter; the European Convention for the Prevention of Torture; and the Framework Convention for the Protection of National Minorities. Russia ceased to bound by any of these treaties as from 16 March.
As concerns the applicability of the ECHR, on 23 March 2022 the Committee of Ministers and the Plenary of the Strasbourg Court decided, separately but almost simultaneously, that Russia will cease to be a Contracting Party to the ECHR on 16 September 2022. This means that Russia will be responsible for violations of the ECHR that occur during this six month period. Thus the Strasbourg Court will have jurisdiction over all applications alleging violations of the ECHR that occur before and during this period that are filed until 16 September 2022, and possibly later, if the Court accepts cases alleging violations before that date but where domestic remedies are exhausted thereafter.
The newly elected Russian judge, my friend Mikhail Lobov, will continue hearing cases until 16 September 2022, when he will no longer be a permanent member of the Court. He will continue to sit until then in all cases concerning Russia,
Russia’s expulsion is a disaster for the whole population of Russia, who lose the rights exercised by so many in the 24 years since Russia ratified the ECHR. As of 28 February 2022 18,000 applications against Russia were pending. Their cases will be dealt with.
From my experience representing the applicants in the first six Chechen cases decided in 2005 five years after their claims were lodged, and most recently the judgment of 24 September 2021 in favour of my client, in Carter v Russia, that her husband Alexander Litvinenko was murdered by the Russian state, I am certain that my clients did not seek financial compensation, nor were they deterred by the long wait.
What they wanted was the truth of what had happened to them and where responsibility lay, from the highest court in Europe.
In an article of 28 March 2022, the serious Russian daily newspaper Kommersant, reporting on the decisions of 23 March 2022, asked whether, with the 18,000 backlog, the Court would prioritise judgements in the most politically resonant cases, for example the many complaints of Alexander Navalny, or the NGO Foreign Agent cases. The paper recalled that the first 11 such NGO complaints were lodged in 2012. In March 2017 when the Court communicated them, there were already 48 NGO applicants.
So far there were no indications that Russia would not execute judgments against it, albeit without enthusiasm. It should be recalled that Russia has paid almost all the compensation ordered in the many cases decided in 24 years. There have been many cases where reforms to law and procedure have been implemented following judgments. The case-law of the Constitutional Court of the Russian Federation is full of cases citing the ECHR and its case-law.
Since the judgment and law of 2014 and 2015 permitting the Constitutional Court to rule that it is constitutionally impossible to comply with a judgment of the Court, there have been only two such cases, Anchugov and Gladkov v Russia, following the UK’s bad example in Hirst v UK, which was settled to the satisfaction of the Committee of Ministers; and the Former Yukos Shareholders v Russia, where I have some sympathy with Russia, which has paid costs and expenses, but not the enormous sum of compensation..
How will the war end? No-one knows, but it has already been a disaster for Russia. Ukraine had no army in 2014. Now it has a professional army with more than seven years of experience fighting Russia and its proxies. Ukraine has become much more united and patriotic. Putin did not expect such resistance to his invasion.
Nevertheless, Putin already has three major achievements.
First, he has brought NATO back to life. With Finland and Sweden considering membership, Russia will soon have an even longer border with NATO.
Second, despite his having secured Brexit, with the help of his friend and admirer Nigel Farage, he has succeeded in uniting the EU, even his friend Victor Orban in Hungary.
Third, as a result of Putin’s action, Germany has changed its firmly held policies of so many years.