Three Aspects of the Relationship Between IHL and the Convention in Ukraine v. Russia (re Crimea)

[Andreas Piperides is a PhD candidate and Graduate Teaching Assistant in Public International Law at the University of Glasgow]

Introduction

The recent unanimous judgment of the European Court of Human Rights (ECtHR or the Court) on the merits of Ukraine v. Russia (re Crimea) has been described as a ‘a clear and undeniable victory for Ukraine’. In the judgment the Court finds that Russia has violated virtually all the substantive provisions of the European Convention on Human Rights (the Convention) and its additional protocols (Articles 2, 3, 5, 6, 8, 9 10, 11, some of those in conjunction with Articles 14 and 18, and Article 38; Articles 1 and 2 of Protocol 1; Article 2 of Protocol 4). Of the various important issues addressed in this 346-page judgment, this post focuses on how the Court constructed the relationship between the Convention and International Humanitarian Law (IHL). It touches upon three different aspects of this relationship: first, how does the Court determine whether Russia occupies Crimea; second, whether IHL can be employed to construct a more protective interpretation of the Convention; third, the ramifications of the shift away from ECtHR’s previous jurisprudence which adopted the Namibia exception.

At first glance, there is nothing new about the way ECtHR constructed the relationship between IHL and the Convention. In paragraphs 912-913 the Court largely reiterated its previous case-law, in Cyprus v. Turkey (just satisfaction), Hassan v. the United Kingdom, and Georgia v. Russia (II), which can be summarized in the following way: the Court will interpret the Convention in light of IHL even in the absence of a formal derogation under Article 15 ECHR, but ‘only where this is specifically pleaded by the respondent State. It is not for the Court to assume that a State intends to modify the commitments which it has undertaken by ratifying the Convention in the absence of a clear indication to that effect’ (Hassan v. the United Kingdom, para 107). The applicability of IHL was not contested since Ukraine had explicitly invoked IHL and Russia did not provide any counter-arguments (paras 910 and 911). Furthermore, the Court draws again on the jurisprudence of the International Court of Justice (ICJ) in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) and in its own judgement in Georgia v. Russia (II) as a reminder that both IHL and the Convention are applicable in a situation of occupation (paras 914 and 915). The passage from Georgia v. Russia (II) also noted that ‘the term “effective control” is broader and covers situations that do not necessarily amount to a situation of “occupation” for the purposes of international humanitarian law’ (para 916). For the Court, the relationship between the Convention and IHL ‘is to be viewed through the principles outlined above and in the context of the Court’s findings regarding the respondent State’s jurisdiction over Crimea’ (para 917).

Inferring Occupation  

In order to establish that the Convention should be interpreted in light of IHL, the Court had one last obstacle to overcome: determining that Crimea is occupied by Russia and thus IHL is applicable. The Court repeated the definition of occupation constructed in Chiragov and Others v. Armenia (para 916). The next step was the Court’s determination of Ukraine’s occupied status. Yet the climax never comes. The judgment merely reads out loud the findings of the OHCHR, Amnesty International and Human Rights Watch as well as the Office of the Prosecutor of the International Criminal Court that Crimea is occupied and ‘certain practices of the respondent State amounted to violations of IHL’ (para 918). Even this implicit adoption of the finding that Crimea is occupied by Russia comes with the caveat that the interpretation of the Convention in light of IHL ‘has no bearing on the issues pertaining to Crimea’s status under international law, which, as stated in paragraph 244 of the admissibility decision “are outside the scope of the case”’ (para 919).

This self-repositioning of the Court as a reader rather than the writer of the judgment in regard to the existence of belligerent occupation in Crimea is puzzling. Given that the Court then proceeds to interpret the Convention in light of IHL, it surely must address the legal question of why IHL is applicable, and moreover, whether the law of occupation should be considered when interpreting the Convention. This ambiguity of the Court on (not) pronouncing on occupation, as noted elsewhere, is not unprecedented since it is also evident in the approach of Israeli courts in regard to the occupation of Palestine. The Court itself hesitated in the past to determine whether ‘the situation in Southeast Iraq in late April and early May 2003 is characterized as one of occupation or of active international armed conflict’ (Hassan v. United Kingdom, para 108). As has been highlighted, the Court seems to be reluctant to become a forum for the resolution of general international law questions.  Hence it adopts this ‘reader’s approach’ of applying IHL with the caveat that its fundamental implicit assumption that Crimea is occupied should be relegated to the legal value of obiter dictum when it comes to the ‘the issues pertaining to Crimea’s status under international law’ (para 919). This approach can be translated as a relinquishment of authority to other international courts (ICC and ICJ) or other international institutions such as the UN (para 918). The Court’s approach, which applies IHL only upon request of the Parties (Hassan v. the United Kingdom, para 107), becomes more perplexing when compared with its stance in Loizidou v. Turkey (Preliminary Objections). In the latter, despite acknowledging the ‘occupation of the northern part of Cyprus by Turkish troops’ (para 63), the Court did not apply IHL. In the present judgment, although Russia’s status as an occupying power was not explicitly declared, pivotal conclusions were drawn based on IHL and the law of occupation.

Can IHL Protect More?

Of course, this is not the first judgment in which the Court takes into account IHL. It is, however, the first where the Court interprets the Convention in light of IHL in order to weave a more protective legal net for the applicant (see subsection 4). In contrast to Hassan v. United Kingdom, in which the respondent had pleaded for the application of IHL and the Court, in effect, sidelined the protection of Article 5 in favor of IHL (see Partly Dissenting Opinion of Judge Spano Joined by Judges Nicolaou, Bianku and Kalaydjieva, para 18), in Ukraine v. Russia (Crimea) it was the applicant that requested the interpretation of the Convention in light of IHL (para 910) and in particular regarding its complaint under Article 6 of the Convention (paras 1001 and 1002). Will this judgment pave the way for more applicants (both individuals and states) invoking IHL? 

It is true that the Court has professed time and time again that the rules of IHL ‘play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict’ (see Varnava v. Turkey, para 185 and Ukraine and the Netherlands v. Russia, para 717). However, the future of IHL as a ‘universally accepted’ project to mitigate the inhumanity of armed conflict is, to say the least, not promising. This judgment is issued against the inescapable backdrop of an ongoing genocide in Palestine, where IHL has been weaponized by the State of Israel to such extent that UN Special Rapporteur Francesca Albanese has referred to the situation as a a genocide with a ‘humanitarian camouflage’. Nevertheless, less than a month after this judgment, the International Court of Justice (ICJ) issued its advisory opinion on the Legality of Israel’s Occupation of Palestinian Territories, where the ICJ reaffirmed that many of the rules found in Geneva Convention IV are ‘fundamental to the respect of the human person, and elementary considerations of humanity’ (para 96). Only the future will show whether the thanatopolitical paradigm of humanitarianism, expressed in the legal language primarily by IHL, will ever manage to recover, or whether it will remain buried under the rubble of Gaza together with the tens of thousands of innocent civilians killed in a ‘humanitarian’ fashion by the State of Israel.

Reconfiguring the Balance of the Namibia Exception

The last issue examined in this post relates to how the Court interprets Article 6 of the Convention in light of IHL in order to arrive to the conclusion that the courts in Crimea are, in general, not established by law. Before considering Article 6, however, the Court had already distinguished the case of Crimea from previous cases concerning the non-recognized self-proclaimed states of ‘Moldavian Republic of Transdniestria’ (notably Ilaşcu v. Moldova and Russia; Mozer v. the Republic of Moldova and Russia) and ‘Autonomous Republic of Abkhazia’ (Mamasakhlisi v. Georgia and Russia) where it had ruled that their judicial system does not reflect a ‘judicial tradition compatible with the Convention’ (para 929). On the contrary, in this case it found that the Russian law applied in Crimea is part of a judicial tradition compatible with the Convention, similar to its finding in regard to Cyprus (para 932). The Court then moves on to distinguish this case from the case of Cyprus, in two steps. First by underlying that in the previous cases the Court was not ‘called upon to interpret the Convention in the light of the rules of IHL’ (para 931). Secondly, by deciding that any ‘administrative practice based on that law cannot be regarded as “lawful” or “in accordance with the law”’ in the meaning of the Convention interpreted in light of IHL and in particular Articles 43 of the Hague Regulations (which Ukraine acceded only on 29 May 2015 with no explanation from the Court regarding its applicability during the interim period) and Article 64 of Geneva Convention IV (para 946).  While in occupied Cyprus the civil courts ‘were in substance based on the Anglo-Saxon tradition and were not essentially different from the courts operating before the events of 1974 and from those which existed in the southern part of Cyprus’ (Cyprus v. Turkey, para 231), in Crimea there was a ‘general and wholesale replacement of Ukrainian law irrespective of the individual circumstances and potential needs of the existing population in Crimea, or the property, security forces or administration of the Russian Federation, or of the need to maintain the orderly government of the territory. Equally important for the Court is the fact that the respondent State applied Russian law immediately after signing the “Accession Treaty”, and also Crimea’s admission, as a matter of Russian law, as a constituent part of the Russian Federation’ (para 944).

With this finding the Court develops its case-law and introduces a new layer in the examination of what can be considered as law within the meaning of the Convention. Starting with the adoption of the Namibia exception, that a law of ‘de facto entities’ is not automatically in violation of the Convention (Cyprus v. Turkey, para 96), the Court established the requirement of a judicial system that is compatible with the Convention (see inter alia, Ilaşcu v. Moldova and Russia, para 460; Mozer v. the Republic of Moldova and Russia, para 148) and even if one such system exists in abstracto, it is also necessary to function in conformity with the principle of the rule of law in concreto (Ilaşcu v. Moldova and Russia, para 461). The new layer of analysis introduced with this judgment means that even if these requirements are satisfied, the Court will not consider the laws of the occupying power as law, in the meaning of the Convention, when they are replacing pre-existing laws to the extent that it does not fall within the scope of the relevant exceptions provided by IHL. 

Placing this judgment in dialogue with the Court’s previous jurisprudence on Cyprus, Moldova, and Georgia reveals a tension between the de jure and the de facto, which is also at the heart of the Namibia exception. With this judgment, the ECtHR upsets the balance established by the ICJ in the Namibia Advisory Opinion (para 125). The new IHL layer, which led the Court to find a violation of Article 6 without examining ‘separately the independence and impartiality of individual judges operating in Crimea’ (para 1020) is in tension with the consistent jurisprudence of the Court which adopted the Namibia exception because to ‘hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled’ (Cyprus v. Turkey, para 96). The ramifications of this shift of the Court away from the Namibia exception have already been flagged by Milanovic: ‘applying the Court’s approach to what “law” is, every single person in a Crimean prison today would be a victim of a human rights violation’. This new approach of the Court is in direct conflict with its previous jurisprudence, where it held that ‘life goes on in the territory concerned for its inhabitants’ and thus ‘must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants’ (Cyprus v. Turkey, para 96). Given Russia’s withdrawal from the ECtHR system, this wholesale approach is probably a response specific to this situation and unlikely to be extrapolated to others. 

Finally, it would not be surprising if a future respondent, unlike Russia, were to invoke exceptions under Article 43 of the Hague Regulations (‘unless absolutely prevented’) or under Article 64 of the Geneva Convention IV which allows the modification of laws in force in the occupied territory for ‘maintaining order in the occupied territory and ensuring the security of the relevant authorities of the occupying forces or administration’ (para 54). Take for instance the recent advisory opinion of the ICJ on Palestine. The ICJ examined whether the extension of Israeli law to occupied West Bank and East Jerusalem are in violation of the rule reflected in Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention (paras 134-141). Even in these circumstances of straightforward violation of IHL, in particular in the West Bank where Israel did not only substitute the pre-existing legal system with its own like Russia, but also applied its military law to the Palestinian civilians while extending Israeli domestic law extra-territorially only to Israeli settlers (paras 135-136), there were IHL arguments to be crafted in order to attempt a justification of the apartheid situation in occupied Palestine. The ICJ rejects summarily such justifications (paras 139-140), before declaring that Israel is in breach of its IHL obligations (para 141). If the dictum of the ECtHR, that any law of the occupying power inconsistent with Articles 43 of the Hague Regulations and 64 of Geneva Convention IV is not to be considered law in the meaning of the Convention, were to be applied to the case of occupied Palestine, it would render every decision by the Israeli military and civil courts in violation of the right to a fair trial. Such a finding, especially for the courts applying Israeli military law to Palestinians, would be commensurate with the situation. After all, the law is never determined in the abstract, but in concrete situations.  Both the judgment and the advisory opinion are issued in times of intensifying global antagonisms and militarization. Often these antagonisms are brought into international courtrooms. As ever, international courts are at a crossroads: to adopt a realpolitik approach or to take the high road?