Legal Uncertainty Regarding the Applicability of the ECHR in International Armed Conflict in the Active Phase of the Hostilities

[Qetevan Qistauri is research assistant at the Regensburg University (Germany) with the main focus on International Human Rights Law.]

ECtHR, Grand Chamber, Georgia v. Russia (II), No. 38263/08

Thursday 21 January 2021, the ECtHR decided on the interstate case under Article 33 ECHR Georgia v. Russia (II) in relation to the war in 2008, which had been dealt with by the Grand Chamber for several years. Although this judgment is characterized by the Georgian government as a historic decision for Georgia, and especially for the victims, from a legal point of view many questions are still unanswered. Through some legal gymnastics, the Court ruled on this case not as a whole but rather as a conflict with two distinctive phases: the active phase of hostilities during the five-day war after the intervention by the Russian armed forces (from 8 to 12 August 2008) and the occupation phase after the cessation of hostilities (ceasefire agreement of 12 August 2008). This allowed the Court to avoid providing clear answers to some very important questions concerning effective control during international armed conflict—at least for now.

No Responsibility of Russia during the Phase of Active Hostilities

The Court found Russia responsible for human rights abuses (Articles 2, 3, 5, 8; Article 1 P1 and Article 2 P4) only in the immediate aftermath of the conflict, but not during the phase of active hostilities. In this regard, the argumentation of the Court and the dissenting opinions reveal that it was not easy for the Court to legally resolve the issue related to the extraterritorial applicability of the ECHR in the active phase of military hostilities.

In fact, the ECtHR denied effective control of the Russian Federation within the meaning of Article 1 ECHR over Georgian territory or “State agent authority and control” over individuals during the active phase of war (from 8 to 12 August 2008) and so didn’t conceded the violations of the right to life during this period, arguing that: 

“[…] the Court attaches decisive weight to the fact 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 not only means that there is no ‘effective control’ over an area […] but also excludes any form of ‘State agent authority and control’ over individuals” (para. 137).

However, the Court did not provide any substantial explanation nor did it report any specific assessment of the evidence provided as to how it came to this rather absolute conclusion. From my perspective, armed confrontation and fighting between enemy military forces over a territory should not mean a priori, that there is no effective control over this territory or “State agent authority and control” over individuals. In the case of Georgia v. Russia (II), the Court should have considered the question in its historical context and the role of Russia in different regional “frozen conflicts” in Georgia. Such armed conflicts are generally complex, especially because they can remain permanent or someday evolve into a more active conflict. Therefore, it would have been necessary to examine the state of affairs before the outbreak of the active phase of war to establish whether Russia also had effective control during this period (see dissenting opinion of judge Chanturia, para. 3-9; 18-32).

Challenging nature of such cases

In this case, the Court has openly acknowledged the difficulty it had faced establishing whether there was effective control during the active phase of the hostilities:

“[…] having regard in particular to the large number of alleged victims and contested incidents, the magnitude of the evidence produced, the difficulty in establishing the relevant circumstances […] the Court considers that it is not in a position to develop its case-law beyond the understanding of the notion of ‘jurisdiction’ as established to date” (para. 141).

On the one hand, I could appreciate the transparency on the Court’s reasoning with regard to the inherent difficulties of such cases. On the other hand, we should be able to trust the Court to clarify those difficult legal cases. Isn’t this the fundamental function of the Court? With this ratter controversial statement, the Court has questioned its own capacity to rule. Or should we interpret the Court’s statement as an acknowledgement that the Court does not want to deal with such cases that could have major political impacts? With regard to the determination of the relevant circumstances, the Court found a pragmatic answer instead of seeking a doctrinal application of the law.

No parallel applicability of the ECHR next to IHL?

However, this approach could have major consequences and left a legal uncertainty. For example, it is still unclear whether the active phase of armed hostilities constitutes a “grey area” where human rights violations cannot be assessed. Considering “the difficulty in establishing the relevant circumstances” in this case, the Court argued:

 […] the fact that such situations are predominantly regulated by legal norms other than those of the Convention (specifically, international humanitarian law or the law of armed conflict), the Court considers that it is not in a position to develop its case-law beyond the understanding of the notion of ‘jurisdiction’ as established to date” (para. 141).

This position seems even more problematic, because it discards the applicability of the ECHR in favour of international humanitarian law in the active phase of the international armed conflict. Does this mean that the Court has ruled out the role of ECHR in such cases?

In fact, if the Grand Chamber had found that the alleged victims had fallen within the jurisdiction of Russia, it would have had to examine the applicability of the Convention next to international humanitarian law. It would be particularly interesting to see how the Court would have interpreted different legal norms of international humanitarian law and human rights law.

At the same time, the Court seems to pass the responsibility to the states as presented in the following seemly unusual statement:

 “If, as in the present case, the Court is to be entrusted with the task of assessing acts of war and active hostilities in the context of an international armed conflict outside the territory of a respondent State, it must be for the Contracting Parties to provide the necessary legal basis for such a task” (para. 142). 

Maybe, this is the Court’s way to let us know that it does not abdicate its role in such cases completely, and that in future, it may approach them differently. However, it is still not clear what this statement (“it must be for the Contracting Parties to provide the necessary legal basis for such a task”) really means. Does that mean, it will require an amendment of the Convention by additional Protocols?

The question concerning the parallel applicability of the Convention next to international humanitarian law is not new for the ECtHR.  The Court rebutted in the case Hassan v. the UK. The argumentation of the UK, which had claimed just like Russia, the precedence of application of humanitarian law before human rights law (Hassan v. the UK, para. 77).  In this previous case, the Court stated clearly that:

“The provisions in the Third and Fourth Geneva Conventions relating to internment, at issue in the present application, were designed to protect captured combatants and civilians who pose a security threat. The Court has already held that Article 2 of the Convention should “be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict” (para. 102).

The Court mentioned its previous decisions on Banković and others (Issa and Others; Isaak and Others; Pad and Others; Andreou; and Solomou and Others), where it applied the concept of “State violence and control” over individuals in the cases concerning fire aimed by the armed forces/police. However, the Court denied such justification in the active phase of the hostilities between Georgia and Russia, because the action of bombardment or artillery shelling does not involve an element of proximity (para. 130-133). This position seems questionable. In fact, if the Court had not conducted a thorough assessment of the evidence available in the case file during the active phase of the war, how could it so categorically exclude that such cases involving an element of proximity have taken place? Stated differently, without a thorough evaluation of evidence related to the active phase of this armed conflict, which is available in the case file, this reasoning remains unconvincing. Furthermore, with the advancement and development of warfare technology (e.g. drone strikes), the element of proximity, as a fundamental condition to establish human rights violations during the active phase of armed conflicts, seems outdated.

Conclusion

Parts of this judgement can be seen as a step backwards in ECtHR case law, as the Court partly questioned its jurisdiction in the case of human rights violations during active phase in international armed conflicts. Human rights abuses during active hostilities are often amongst the worst human right violations, which is why strict legal evaluation from the Court is required. How this decision will actually affect other cases concerning international armed conflicts, especially different conflicts in the region, remains an open question.