14 May Did They Forget Something? Georgia v Russia (II) and Property Rights
The judgement of the European Court of Human Rights (the Court) on the inter-state case Georgia v Russia (II), which was delivered on 21 January 2021, has become a subject of controversy within the international law scholarship and beyond. The case concerns the violations committed during the armed conflict between Georgia and Russia in the territory of the breakaway region of South Ossetia in August 2008 (More on the facts here). Even though the Court found numerous violations of human rights committed by Russia after the cessation of active hostilities and signing of a ceasefire agreement on 12 August (the right to life, prohibition of inhuman and degrading treatment, the right to property and housing rights, the right to liberty and the freedom of movement), the judgment has been criticised (e.g. here and here) due to the Court’s determination that Russian Federation did not exercise extraterritorial jurisdiction during the active phase of the armed conflict (8-12 August). And although it is supposedly the most regrettable outcome of the judgment, this comment will focus on what went wrong from the perspective of property and housing rights.
The conflict in question was accompanied by the extensive violations of property rights at all phases – as a result of bombing and shelling during the active confrontation and a widescale campaign of destruction, looting and burning that commenced from 12 August. Additionally, the conflict has effected an internal displacement of a large amount of the Georgian population, which are deprived of the possibility to access their properties to this day. Unlike other disputed findings of the Court on the case, which were rather misguided (for example, co-applicability of IHL and human rights), the main problem in terms of property and housing rights were their absence from the decision. Even though the Court found the violation of property rights committed during the campaign of looting and burning, such determination is remarkably missing in other episodes, including in terms of property targeted during military operations and the on-going lack of access of Georgian population to their original residence in the occupied region of South Ossetia.
Right to Return – to What?
As the applicant Government submitted, the conflict was accompanied by a campaign of ethnic cleansing, which resulted in many thousands of ethnic Georgians fleeing from South Ossetia and adjacent territories, out of which some 23,000 have been prevented from returning ever since (paras. 283-284). Hence, the government argued, and the Court has ultimately confirmed that ‘there was an administrative practice contrary to Article 2 of Protocol No. 4 [freedom of movement] as regards the inability of Georgian nationals to return to their respective homes’, for which Russia was responsible (para. 299).
Certainly, this finding is of paramount importance for the concerned internally displaced persons (IDPs). However, what seems to be missing here is the allegation/determination that the same exact action (or inaction) has also violated the property rights of the concerned civilians under Article 1 of Protocol no. 1. Here, the responsibility rests on the applicant Government, which does not seem to have put this issue forward. It is nonetheless an important flaw of the judgement as it created a situation, where property and housing rights of the persons, who were (are) prevented to access their homes due to their displacement and whose properties were not destroyed or damagedduring the armed conflict, were essentially left out of the scope of the dispute. It is true that the Court found the extensive violation of property rights as a result of the widespread campaign of destruction after the end of active hostilities, however, the continuing denial of the IDPs’ access to their property in South Ossetia and the ensuing loss of all control over their possessions has not been addressed in and of itself, despite the Court’s rich practice on this kind of violation in the cases arising from the Cyprus-Turkey conflict (Loizidou, Cyprus v Turkey). One could even go further and suggest that this aspect was also relevant to those victims whose property was actually destroyed, but who nevertheless retain rights over the land parcel their property once stood on. Their continuing denial of these land parcels has likewise not been addressed.
Such a state of affairs – that IDPs’ situation was only assessed under the freedom of movement clause – also erodes the Court’s conclusion to completely rule out the existence of ‘state agent authority and control’ in the given case (put forward as a justification for declining jurisdiction of Russia during active fighting). The Court admits in para. 131 that it had applied the personal jurisdiction over individuals to scenarios going beyond physical power and control (Issa, Andreou, Solomou, etc.), but it then tries to differentiate the present case by concluding that ‘those cases concerned isolated and specific acts involving an element of proximity’ (para. 132; see also here). At the same time, the ‘effective control’ over the administrative boundary line by Russia was sufficient for establishing a jurisdictional link vis-à-vis the Georgian IDPs. It is hard to interpret the continued prevention of Georgian IDPs to access their homes as proximate (a lot of IDPs live very far from the administrative borders), or indeed as an isolated or specific act. It is true that Russia had control over the area where the private properties of the displaced persons were (are) located, however, as mentioned already, the lack of access of civilians to their places of origin was pleaded only under Article 2 of Protocol no. 4 in the given case, and not in conjunction with the right to property and/or the right to home.
No Justice for Property Violations in the Context of Chaos
Regrettably, this is not the only instance of neglecting property and housing rights in the decision. However, this time the Court is responsible: the government appealed on the violations of, among others, the property rights during the active military confrontations – allegation that was left hanging in the air by the Court. Despite its rejection of extraterritorial jurisdiction during active hostilities, the Court nevertheless found the violation of the inhuman and degrading treatment and the right to liberty and security of the civilian and military prisoners during this period (which is widely regarded as another discrepancy of the decision). And the issue of jurisdiction itself was examined in relation to the right to life solely. Therefore, the violations of property rights during the active phase were completely omitted from the case (unlike the right to life, which was at least reviewed in conjunction with the jurisdiction question), despite the fact that numerous reports in relation to the conflict, as well as the decision of the International Criminal Court, allege that indiscriminate and disproportionate attacks were committed against the civilian property.
Finally, the property dimension of the conflict was also misrepresented by overlooking the discriminatory nature of the breaches in question. The lack of allegation from the Government and hence, the corresponding finding from the Court on the ‘potentially discriminatory motives’ were first discussed comprehensively here in relation to the expulsion of Georgian nationals. However, as a matter of principle, the same argumentation also applies to the violation of property rights. For example, the ICC decision refers to the cases of using local guides by South Ossetian forces to identify and target the houses of ethnic Georgians specifically (para 20). Consequently, to represent the campaign of ethnic cleansing underlying the property rights violations in the conflict was another one of the judgment’s missed opportunities.
Property rights are one of the biggest concerns among the IDPs and their insufficient adjudication in the framework of this important decision is unfortunate. This might have a negative effect on the individual applications arising from the conflict in question and appealing, inter alia, the continuing lack of access to their homes and properties. Invoking the right to property or right to home in conjunction with the freedom of movement could have also reinforced the emerging and relatively weakly supported right to return of IDPs. One positive development can nevertheless be taken out of the decision, as the Court ruled that the finding of a global solution to the conflict (here, negotiations in Geneva) does not free the responsible Russian, South Ossetian and Abkhaz authorities from the duty to enable inhabitants of Georgian origin to return to their respective homes (para. 298).
The conflict-related property rights violations create a complex phenomenon in Georgia, requiring a mixture of appropriate legal and transitional justice measures for its peaceful resolution. The present judgment could have greatly contributed to this process (for example, by establishing the ownership of Georgian IDPs over the property left in the occupied territory), had the parties not forgotten – or opted to forget – the existence of the property and housing rights.