17 March 2022
By Philip Leach
This article was first published in Strasbourg Observers and is republished here by kind permission.
Source: Strasbourg Observers
The brutal, unprovoked and illegal Russian invasion of Ukraine, which started on 24 February 2022, has resulted in the swift utilisation of the machinery of international law. Ukraine itself instigated proceedings at the International Court of Justice and the European Court of Human Rights. On 28 February, Karim Khan QC, the Prosecutor at the International Criminal Court (ICC), announced the opening of an investigation into the situation in Ukraine, and by 2 March his office had received referrals from 39 States Parties to the Rome Statute of the ICC, allowing active investigations to proceed. In addition, there have been calls for the establishment of a separate criminal tribunal to investigate the crime of aggression, which the ICC does not have the remit to do, in the context of Ukraine (or a hybrid tribunal established with Council of Europe support).
For Elvira Dominguez-Redondo, such engagement represents a ‘remarkable and a revealing testimony of the centrality of international law in the means used to address the conflict’. As Oona Hathaway has cogently argued, ‘the unified and sustained legal condemnation of the invasion is essential not only to sustaining hope for a future in which Ukraine is free and independent but also to maintaining an international legal order founded on the principle that might cannot make right’ (see also Noëlle Quénivet’s extremely useful curation of international law commentaries here).
This post focuses on the particular role of the Council of Europe: Russia’s membership of it, its departure from it, what some of the consequences of that will be (without of course being comprehensive), and what lessons should be learned. Russia’s quarter of a century within the Council of Europe has undoubtedly been tumultuous. Its accession (in 1996) was highly contested, because of the ongoing conflict in Chechnya, and for those reasons, in 2000, PACE suspended the right of the Russian delegation to vote in plenary. Following Russia’s annexation of Crimea in 2014, the Russian delegation to PACE was deprived of particular rights. In 2015 the Russian Constitutional Court held, in effect, that European Court judgments which conflict with the Russian Constitution could not be enforced, and in response to Constitutional amendments proposed in 2020, the Venice Commission felt obliged to underscore that ‘there is no choice to execute or not to execute’ a Strasbourg court judgment. Be that as it may, as Rick Lawson notes, for 25 years Russia was ‘the only super-power to be subjected to supranational supervision in the field of human rights’.
Russia’s exit from the Council of Europe
As a direct consequence of its war of aggression in Ukraine, Russia ceased to be a member of the Council of Europe (CoE), with effect from 16 March, as confirmed by a resolution of the Committee of Ministers (CM). This represents uncharted territory – until now, no state had ever been expelled from the organisation, and the only instance of state withdrawal was carried out by a military junta in Greece in 1969 (before it could be expelled).
However, there was much uncertainty in the days leading up to the CM resolution. The CoE statute prescribes two routes for a state’s departure: withdrawal (Article 7) and expulsion (Article 8). On 25 February, the CM had taken the decision to suspend Russia from its rights of representation in the CM and in the Parliamentary Assembly of the Council of Europe (PACE) with immediate effect (under Article 8 of the Statute), but the Ministers’ Deputies took pains to clarify that Russia was still subject to the European Convention on Human Rights (ECHR) and its additional obligations.
A statement from the Russian Ministry of Foreign Affairs on 10 March suggested that withdrawal was likely:
‘Russia will not participate in the transformation by NATO and the EU obediently following them of the oldest European organisation into another platform for incantations about Western superiority and narcissism. Let them enjoy communicating with each other, without Russia’.
This led some media organisations to announce Russia’s departure from the CoE, in a bid to avoid being kicked out. However, that was not yet the case. Also on 10 March, the Ministers’ Deputies decided to consult PACE about further steps to be taken under Article 8. At an extraordinary plenary session on 14 and 15 March, PACE described the Russian invasion of Ukraine as a ‘serious breach’ of Article 3 of the CoE Statute, which was contrary to ‘the obligations and commitments which the Russian Federation undertook upon accession’. As a result, it adopted an opinion to the effect that the CM should request the Russian Federation to immediately withdraw from the CoE, and that if Russia did not do so, the CM should decide ‘the immediate possible date’ when Russia would cease to be a CoE member. Also on 15 March, the Russian Government purportedly informed the CoE Secretary General of its withdrawal from the CoE and of its intention to denounce the ECHR (under Article 58). On the following day, the CM passed a resolution which noted Russia’s withdrawal and which decided, ‘in the context of the procedure launched under Article 8 of the Statute of the Council of Europe, that the Russian Federation ceases to be a member of the Council of Europe as from 16 March 2022’.
The CM resolution therefore uses the wording of Article 8 of the CoE Statute, which in effect means expulsion. The Article 8 procedure can only be invoked where the state in question has not complied with the request to withdraw, pursuant to Article 7. This would appear to mean that Russia’s communication to the Secretary General on 15 March was not considered to effect Russia’s withdrawal.
This is an important point to clarify, not least because separate timings apply to the withdrawal and expulsion processes. Article 7 would allow a state’s (voluntary) withdrawal to take effect at the end of the financial year (December) in which it is notified (where notification is given during the first nine months of the financial year). If notification is given in the last three months of the financial year, it will take effect at the end of the next financial year. If Russia had been permitted to use the Article 7 withdrawal route, then in theory at least, it could have delayed matters, for quite a considerable period. Instead, the CM has applied the Article 8 procedure, allowing it to decide that Russia ceased to be a member from 16 March.
Some consequences of Russia’s expulsion
There are of course myriad consequences of Russia’s expulsion from the CoE, not least its disengagement from the full range of CoE mechanisms, such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the European Committee for Social Rights. There are also significant financial reverberations for the organisation (the Russian contribution in 2022 was €34 million), which will now need to be plugged by other member states. Very disturbingly, former President Dmitry Medvedyev has recently mooted the possibility of the reintroduction of the death penalty. However, this post will focus on some of the consequences for potential applicants to the European Court (whose immediate response on 16 March was to suspend its examination of all Russian cases).
The current conflict
The European Court of Human Rights will continue to have jurisdiction over ECHR violations allegedly committed by Russia up to the date of its exit from the CoE on 16 March (see Articles 58(2) & (3) ECHR). This will enable the Court to consider pending cases relating to Russia’s invasion of Ukraine. An inter-state case was lodged by the Ukrainian Government on 28 February, as a result of which the Court ordered interim measures (under Rule 39 of the Court Rules) on 1 March, requiring 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’.
There is no apparent evidence of Russia complying with this binding court order. Indeed, there is mounting evidence of the concerted targeting of civilian objects in Ukraine, such as the maternity and children’s hospital in Mariupol which was subject to an air strike on 9 March.
The Court has a reasonably well-established practice of ordering interim measures in the context of armed conflict or occupation. It has done so in order to protect the Convention rights of detainees such as Ukrainian film director, Oleg Sentsov, Ukrainian air force pilot Nadia Savchenko, and 24 captured Ukrainian sailors. Following the Russian occupation of Crimea in 2014, and events in eastern Ukraine, the Court made interim measures orders on behalf of detainees in more than 150 cases, and similar orders were made following the outbreak of renewed hostilities over Nagorno-Karabakh in September 2020.
Aside from the protection of detainees, the Court has also issued much more broadly focused interim measures orders calling on state parties to conflict to refrain from breaching the ECHR, notably the right to life and prohibition of torture. It did so during the South Ossetia conflict in 2008, in respect of Ukraine in 2014 and Nagorno-Karabakh in 2020. Commentators have debated the efficacy of the Court’s issuing such generalised directions (see here and here). Certainly, greater specificity ought to lead to higher levels of compliance. Furthermore, it is not just the parties who can seek interim measures: rule 39 of the Court’s rules allows ‘any other person concerned’ to apply (as has been noted elsewhere). In the current context, this provision could enable, for example, any state or NGO (or the Commissioner for Human Rights) to apply for interim measures from the Court to order an end to the use of illegal munitions, such as cluster bombs.
A very significant barrier to the Court’s consideration of the merits of any cases arising out of the current conflict is the Court’s very restrictive and retrograde interpretation of its jurisdiction where states take action beyond their borders during armed conflict. In the 2021 Grand Chamber judgment in the case of Georgia v Russia (II), concerning the eight day war between Georgia and Russia in South Ossetia in August 2008, the Court decided that it did not have jurisdiction in respect of extra-territorial acts during the ‘active phase of hostilities’, on the basis that there was no ‘effective control’ of territory in such circumstances. Much has been written which is highly critical of this judicial policy of arch pragmatism (see, for example, here, here, here and here), but, suffice to say briefly here that, in the context of the current conflict, the Court would have to decide whether particular attacks or incidents occurred during ‘active hostilities’, or whether Russia had effective control of the territory in question, or control over individuals (such as POWs). One could also question whether the Court’s 1 March interim measures order (see above) contradicts the Grand Chamber decision, by appearing to confirm the Court’s jurisdiction over ‘military attacks against civilians and civilian objects’ etc – in other words, attacks conducted during the active phase of hostilities.
Other cases at the European Court
Russia’s departure from the CoE does not prevent the Court from adjudicating on all pending cases (both individual applications and inter-state cases) and any future cases which relate to violations committed before 16 March 2022, and its findings will continue to be legally binding on Russia. This is no mean feat, as there were 18,000 cases pending against Russia at the end of February, including several inter-state cases (brought by Ukraine, Georgia and the Netherlands). The domestic remedies rule will continue to apply, meaning that cases may be lodged in Strasbourg a considerable time after 16 March (depending on which domestic remedies apply, and how long they take). As Kanstantsin Dzehtsiarou has suggested, it remains to be seen to what extent Russia will engage with the Court’s litigation processes now that it has left the CoE (which may well raise questions about legitimacy), and how it will respond to any findings of ECHR violations by the Court. Previous experience does not augur well: the European Implementation Networks has reported that 90% of the leading judgments against Russia from the last ten years are still yet to be implemented.
However, it would appear that ECHR violations allegedly committed by Russia which take place after 16 March 2022 cannot be challenged at the European Court. This is nothing short of a tragedy, given victims’ loss of ECHR protection. Róisín Pillay of the International Commission of Jurists has said: ‘Nowhere has the ECtHR been more of a lifeline than in Russia. Victims of the most brutal human rights violations, failed by their national systems, found some hope of vindication there’. Karinna Moskalenko, a Russian lawyer and one of the founders of the CURE campaign (Campaign to Uphold Rights in Europe), has suggested that the inability to petition the European Court is ‘a punishment for ordinary people, not for the government’. This was also the view of leading Russian human rights defenders, discussing the risk of Russia’s expulsion or withdrawal from the CoE back in 2018:
‘Those who wish to punish the Kremlin miss the target: it is not the Russian government, but the Russian public who would suffer the most. For millions of people residing in Russia … the ECtHR has been an ultimate hope for justice, which in many cases they cannot find in Russia. Thousands of its judgments have had a significant positive impact on Russian laws and judicial practice’.
A judge from Russia
There will no longer be a Russian judge on the Court, as Article 20 ECHR provides that the Court ‘shall consist of a number of judges equal to that of the High Contracting Parties’ (and there is currently an elected judge in respect of each of the other 46 states). The most recent incumbent, Mikhail Lobov, was only elected on to the Court on 2 January 2022. He had more than 15 years’ experience within the Council of Europe – within the Court Registry, the Department for the Execution of Judgments and the Human Rights Policy and Co-operation Department of the Human Rights and Rule of Law Directorate General. There is some uncertainty as to the formation of the Court when handling the remaining Russian cases. Article 26 ECHR requires the Russian judge to sit as an ex-officio member of any chamber or grand chamber which hears a case relating to Russia, but where there is no such judge, Article 26 could be read to permit the President of the Court to select a judge from the list of ad hoc judges previously submitted by Russia.
Conclusion: lessons to learn?
A situation unprecedented in Europe since World War II has seemingly led to a robust and principled response which has sought to underline the fundamental importance of the international rule of law. The decision of the CoE to expel Russia could indeed enhance its legitimacy in the eyes of many, as a necessary response to the invasion of Ukraine. However, Murray Hunt has rightly pointed out that in recent years there has been a steady erosion of the rules-based international order, caused by the actions of many democratic states which have chosen to violate international rules, spuriously citing the primacy of national laws. The CoE has certainly not been immune to such pressure, exerted by various states, including the UK which has itself flirted with withdrawal, as has been documented.
Twenty-two years ago, the Russian armed forces were bombing their own people, in the village of Katyr-Yurt in Chechnya (population: 18,000-25,000). When this attack was scrutinised by the European Court of Human Rights (in the 2005 judgment in Isayeva v Russia), it found that fighter jets had been deployed with bombs which had a damage radius exceeding 1,000 metres (representing a ‘massive use of indiscriminate weapons’), that there was no evidence that ‘any serious calculations were made about the evacuation of civilians’, and that amidst confusion over safe passage for the village inhabitants, for a period they were ‘prevented from leaving the scene of fighting on the order of the operation’s commanders’. The Isayeva decision was one of the first of several hundred judgments from the European Court finding very serious breaches of the ECHR committed by the Russian armed or security forces in Chechnya and the wider north Caucasus region, as documented here and here.
Those cases have remained on the CoE agenda (and CM docket) for the past 15 or so years, however, CoE states have not seriously attempted to enforce these judgments or ensure that the victims are redressed. My colleagues and I at the European Human Rights Advocacy Centre (EHRAC) and at the Russian NGO Memorial have spent much of this time speaking to state representatives, trying to persuade them to take up these cases properly, to exert real pressure on the Russian authorities and use the legal or diplomatic tools available to them. However, in spite of personal interest from some individual diplomats, the overwhelming state response has been that of complacent disinterest – as the states were not directly affected, it was seen to be too ‘difficult’ (or even too ‘political’) to take action, and much else besides was far more pressing. This reflects a much wider problem about CoE states’ inadequate backing for the Court and their failure to take the trouble to work diligently to ensure that its judgments (against all states) are properly implemented, within a reasonable time period. For the Russian people, this has also meant a disastrous failure to double down on judgments highlighting the state authorities’ alarmingly increasingly repressive measures, allowing unregulated surveillance of mobile phones by the security services, the widespread suppression of peaceful protest, the repeated detention and prosecution of opposition politicians, the poisoning of dissidents and the death of 330 people in the aftermath of the Beslan school siege in 2004.
This is the moment to learn lessons, and to really learn them in light of recent events. We must surely give full-hearted support to the existing multi-lateral legal systems and machinery, and use the full range of tools which are already at our disposal. In Strasbourg, this should mean inter-state cases instigated in order to police member states acting out of line, or the use of infringement proceedings and other measures (such as the complementary joint procedure, as discussed by Sylvia Steininger here) to actively persuade, cajole and arm-twist governments into taking seriously their obligations to comply with European Court judgments. At Rome in 1950, CoE states acknowledged the need for the collective enforcement of human rights – there is no more important time than now to reassess what that means.
The author is very grateful to Dr Alice Donald, Andrew Drzemczewski, Jess Gavron and Murray Hunt for their wise comments on an earlier draft.