On 28 February 2022, Ukraine lodged a request for interim measures against Russia before the European Court of Human Rights (ECHR). Ukraine referred to “massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine”. Within one day of the Ukrainian request, the Strasbourg Court granted “urgent interim measures” under Rule 39 of the Rules of Court.
While the Court’s order on interim measures itself is, as usual, not in the public domain, the press release details that “…the Court decides (…) to indicate to the Government of 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.”
The Court referred to the “current military action which commenced on 24 February 2022 in various parts of Ukraine and considers that it gives rise to a real and continuing risk of serious violations of the Convention rights of the civilian population, in particular under Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment or punishment) and 8 (right to respect for private and family life) of the European Convention on Human Rights.”
Ukraine v Russia no. 10 – or collective enforcement of human rights in Europe against an intending tyrant
The jurisdictional basis for the interim measures in Strasbourg is Article 33 ECHR. The provision stipulates that “[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.”
The case brought by Ukraine against Russia is already the tenth inter-State application in Strasbourg since 2014. In view of the scale of the Russian conduct since 24 February 2022, one can hope that this application will be joined by some of the other 45 Member States of the European Convention. All of them can make use of the compulsory jurisdiction of the Court. There is no further legal interest required. The straitjacket of diplomatic protection does not hinder such action in view of the ECHR’s erga omnes partes regime. There are no good reasons to leave Ukraine alone with its inter-State application, a remedy which was drafted after World War II to counter “the intending tyrant” in Europe. It is high time to use it, after all, Vladimir Putin has made his intentions clear.
The joint effort of using the International Criminal Court shows that a concerted action by States is possible. The resources needed at the Strasbourg Court should be made available by the States. Andrew Forde observed with regard to the Council of Europe that there is an initiative in the German Bundestag to ensure that the Council of Europe does not suffer any medium or long term financial damage as a result of the Organization’s decision to suspend Russia over its armed attack against Ukraine.
Certainly, the material yardstick of the Court is confined to the Convention and its Protocols and does not extend to International Humanitarian Law or the ius ad bellum. The limitations were central in the case of Georgia v Russia II, which I discussed here.
The value of interim measures from Strasbourg as evidenced by subsequent practice
I have argued in favor of the value of this type of interim measures, which have been requested and issued previously in situations of acute conflict. The Court refers to the previous occasions in detail in the press release of 1 March 2022. Specifically, the Court recalls that “the interim measure indicated on 13 March 2014 in the context of the proceedings of Ukraine, The Netherlands v Russia (…) concerning the events in Eastern Ukraine remained in force.”
I find it worthwhile to underline that said requests for interim measures come from ECHR member States. It can be deduced from the practice of Georgia, Ukraine, Armenia and Azerbaijan that they do see value in this course of action.
In the case of Georgia v Russia III, which Georgia initiated in November 2009, Georgia “demand[ed] the Russian Federation to comply with its obligations under the European Convention on Human Rights, including the decision of the Court of 12 August 2008 [to apply rule 39 of the Rules of Court (interim measures)]”.
I have expressed my disappointment with the silence of the Court in the 2021 judgment of Georgia v Russia II on the general role of interim measures. In view of the long time the complex inter-State proceedings in cases of military conflicts take, the procedural steps leading to a judgment could be reconsidered in favor of more public access to the information provided by the respective States in response to the interim requests. The docket of the Court offers plenty of occasion to sharpen this important sword.
Yes, the stakes are high
Kushtrim Istrefi and Antoine Buyse have argued with respect to the interim measures ordered in the context of the Nagorno Karabakh conflict, that “[t]he wider the scope of an interim measure, it seems, and the higher the stakes for states, the less likely that the measures will be complied with. And as a consequence of that same wide scope, it will be also much more contentious at a later stage to assess whether the interim measure has been complied with.”
While I agree that the stakes are high and the likelihood of compliance is minimal, I would like to underline that the decision on interim measures does not introduce a new legal obligation on the Russian Federation. Interim measures are declaratory in character. From the point of view of the Court, the yardstick for the actions of all Member States of the ECHR involved is and remains the Convention. Thus, the (future ex-post) assessment whether the Court’s interim measures decision has been complied with is in reality the question whether the States have complied with the very core of their Convention obligations. The docket of the Court offers plenty of occasion to sharpen this important sword.
Facts, facts, facts
In the interim order, the Court requested the Russian Federation to inform the Court of the measures taken to ensure that the Convention is fully complied with.
The strength of inter-State proceedings in Strasbourg lies with the objective ascertainment of the facts. The Court is not a political actor, it is an international court. I have attached hope for a supervisory deterrent effect that the interim requests for information might unfold. Interim measures from Strasbourg can help, at least one can hope, to contain the worst of the worst human rights violations.
The Court and the Council of Europe, and Russia
In its order of 1 March 2022, the Court also gave notice of the interim measures to the Committee of Ministers of the Council of Europe in accordance with Rule 39 § 2 of the Rules of Court. It is worthwhile recalling at this point that even if the Russian Federation rights of representation in the main political Organ of the Council of Europe, the Committee of Ministers, were suspended, Russia continues to be bound by the European Convention on Human Rights. Russia, it appears, voted against its own suspension, the vote itself remains confidential. All the more it should be held accountable for all treaty obligations undertaken.
At this point it is worth to recall the so-called Greek case. Denmark, Norway, Sweden and the Netherlands joined forces to address the situation in the Hellenic peninsula in the late 1960s. In November 1969, the final report of the now defunct Commission had been leaked to Le Monde and The Sunday Times. On 12 December 1969, the Greek foreign minister announced the Greek withdrawal from the Council of Europe under Article 7 CoE-St. Greece was readmitted to the Council of Europe and became a member of the ECHR in 1974, when democracy had been restored.
The earlier practice concerning interim measures in inter-State proceedings
An analysis of the previous inter-State case law and the use of interim measures indicates that interim measures were largely complied with. However, the pertinent old case law does not comprise situations of armed conflict.
The request to stay the execution of Nicolas Sampson within the very first set of inter-State proceedings between Greece and the United Kingdom in the 1950s was the first interim measure from Strasbourg. The United Kingdom honored the request even though at the time, there was no legal basis for interim measures whatsoever.
In the case of Ireland v the United Kingdom, Ireland had, in March 1972, requested from the Commission, “to seek from the respondent government: first, an undertaking that all such treatment of persons in custody as has been complained of in the application as constituting a breach of Art. 3 should be discontinued”. In addition, Ireland further had requested observers to be nominated by the Commission to monitor the undertaking. However, the Commission declined the request and argued that “it did not have the power, consistent with its functions under the Convention, to meet the request.” It is also true, however, that the British Prime Minister had previously undertaken, in a public statement to Parliament, not to use the incriminated interrogation techniques further.
Meanwhile in the Hague
On 27 February 2022, Ukraine has also approached the International Court of Justice under the compromissory clause of the Genocide Convention and requested provisional measures. The ICJ announced – in a speed which is highly unusual for the Court in The Hague – that it would hold hearings on 7 and 8 March 2022. In a separate statement, Joan E. Donoghue, the President of the ICJ, has called for “the attention of the Russian Federation to the need to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects”. Peter Tzeng has compared Strasbourg and The Hague with respect to interim measures on Völkerrechtsblog. The ICJ’s work will be confined to the four corners of the Genocide Convention and in a similar manner as the Strasbourg is limited to the European Convention on Human Rights.
The Court has no chance, and it uses it
Certainly, in view of the reports pouring from Ukraine, the European Court of Human Rights has very little influence to exert. It is to be welcomed though that even though the Court has no chance to stop the bloodshed, the Court uses it.