By Dr Vassilis P. Tzevelekos, Senior lecturer in Law, University of Liverpool School of Law and Social Justice; Editor-in-chief of the European Convention on Human Rights Law Review
Nikos Kazantzakis’ wrote in The Saviors of God: Spiritual Exercises: ‘Love responsibility. Say: It is my duty, and mine alone, to save the earth. If it is not saved, then I alone am to blame.’ (transl. K. Friar). The ECtHR’s responsibility is not to save the earth, but to safeguard fundamental human rights. This note discusses one aspect of this mission, namely the responsibility of the ECtHR to grant (provisional) protection in inter-state disputes, in particular when protection is urgently needed because of an armed conflict.
The 2020 Nagorno-Karabakh armed conflict between Armenia and Azerbaijan raises an abundance of questions from the perspective of international law. One set of such questions concerns the interim measures that the ECtHR has issued with respect to this situation. For an overview and to access the relevant press releases announcing the issuing and the lifting of interim measures or the rejection of requests to lift such measures and to suspend the examination of requests for interim measures, one might wish to consult the two ECtHR press releases dated on 04-11-2020 and 16-12-2020 in particular. On 30-09-2020, the Court called upon
‘both Azerbaijan and Armenia to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) of the Convention’.
Moreover, ‘[t]aking account of the escalation of the conflict, the Court [on 06-10-2020 called] on all States directly or indirectly involved in the conflict, including Turkey, to refrain from actions that contribute to breaches of the Convention rights of civilians, and to respect their obligations under the Convention’. On 04-11-2020, the Court clarified that its call on states to comply with their ECHR engagements encompasses ‘the Convention rights of those who are captured during the conflict and those whose rights might otherwise be violated’.
Discussing interim measures in the context of the 2020 Nagorno-Karabakh armed conflict, Istrefi and Buyse observed the increase of requests for such measures concerning inter-state conflicts in Ukraine and the Caucasus, and, commenting on their effectiveness, they associated the poor record of state compliance with the wide scope of these measures. Similar observations have been made in the past by Leach, who, discussing the interim measures indicated by the ECtHR on Crimea and the dispute between Ukraine and Russia, noted the differences concerning the ‘breadth and specificity’ between interim measures in inter-state cases and in individual applications. According to Leach, less specific interim measures result in increased difficulty for the ECtHR to assess compliance.
Dzehtsiarou agrees that abstract interim measures are more difficult to implement, thus less effective. Therefore, he has expressed serious concerns regarding the value of interim measures in inter-state conflicts with respect to both the disputes between Ukraine and Russia and the 2020 Nagorno-Karabakh armed conflict. Although Dzehtsiarou recognises that good reasons exist in favour of continuity with regard to the ECtHR’s established practice to indicate interim measures in inter-state disputes, he expresses reservations regarding the lack of added value and effectiveness of these types of vague interim measures, and scepticism concerning the reputational cost that such measures entail for the ECHR system.
A different position – in a sense, a defence against the critique of the ECtHR’s practice with respect to interim measures in inter-state disputes – has been adopted by Risini, who has argued that, although one should not underestimate the need to be realistic as to what a court like the ECtHR can truly achieve in inter-state conflicts, it would be worse if the Strasbourg Court remained silent in such circumstances. Even if these types of interim measures are primarily aimed at highlighting the obligations of the parties to the ECHR, they are still a useful reminder that can have a ‘supervisory deterrent effect’. This note adds its voice to Risini’s to argue that, although abstract interim measures on inter-state disputes may not be ideal, they remain both useful and necessary. The points made below to build this argument must not be read as unconditionally defending abstract measures. Quite the opposite, interim measures shall be as concrete as possible when the circumstances justify it. Overall, however, even if they fail to be as specific as one would desire, it is better that the ECtHR indicates interim measures on inter-state disputes rather than refraining from doing so.
Abstract interim measures in inter-state disputes (allegedly) having a reputational cost for the ECtHR: still useful and necessary
It is common knowledge that interim measures concern urgent matters and are a means to safeguard rights from an imminent risk of irreparable harm. Equally uncontroversial is that human rights must be practical and effective. In principle, therefore, provisional measures should be as concrete as possible. This is also a matter of legal certainty. If, for instance, by being transferred to another state, a person risks suffering a violation of her right to life, it is only appropriate that the ECtHR prohibits/prevents the transfer to such state. How concrete interim measures can/should be also depends upon the particular circumstances of each situation. Wars, like any other situation generating a risk of or involving serious, grave or systematic human rights violations, may call for urgent provisional judicial protection. Their generalised and widespread nature may, however, limit the ability of a court to sufficiently concretise the indicated interim measures and to specify them to an extent that they can be translated with certainty into precise, customised standards or types of conduct that states are expected to demonstrate. Abstract measures aim at encompassing a broad range of acts/omissions that may occur in war. They act as an ‘umbrella’. This does not mean, however, that this type of protection – in spite of the level of abstraction, which to an extent may be inherent to it – is not necessary. Quite the opposite, under such appalling circumstances, protection is (sometimes desperately) needed by a large number of (potential) victims who are keen to receive any sort of help.
Can this have a reputational cost for a court like the ECtHR, which prides itself on offering protection that is effective, and not illusory, and which primarily relies on state will and co-operation for its judgments to be given effect? In that respect, one must admit that the reputational cost is both a real and a very sensible concern. By protecting its reputation, the ECtHR also (and primarily) protects the integrity of its system of human rights protection so that it can be helpful to all potential users. The ECtHR appears to be mindful of the trade-off between, on the one hand, the protection of its reputation and, on the other hand, the demand for human rights protection during wars or similar emergencies hitting the general population. This is why it has demonstrated self-restraint by limiting its interim measures in such circumstances to the most important rights, such as the right to life. Moreover, the abstract nature of interim measures in such circumstances may be seen as giving more discretion and leeway to states to decide how they will comply, but it is also a sign of pragmatism as to what a judicial act can achieve in the case of vehement and complex disputes leading to wars. The balance to be maintained is rather fine. For, if excessive ambition can damage the reputation of a human rights court, inertia or the prioritisation of self-preservation and image-building over human rights by a human rights court can be equally detrimental.
In this respect, a possible counterargument is that abstract interim measures are not really necessary. They add nothing new and they offer nothing tangible. Furthermore, they can potentially damage the credibility and reputation of the court that has issued them. In other words, the ECtHR may be seen as pretending to offer protection, when essentially it does nothing more than reiterating the obvious, namely that states should comply with their human rights obligations, without truly offering any meaningful direction and standards of conduct to states or real protection to the (potential) victims in the field. According to this logic, abstract interim measures employing a Security Council type of language are infertile, meaningless reminders of a state’s human rights obligations. The issuing of such reminders is primarily the task of international political institutions – not of courts.
Yet, this is not quite true. First, the effectiveness of interim measures also depends on the (future) practice of the ECtHR. The Court has the power to decide how much weight it shall give to them when examining the merits of a case over which it has issued interim measures. It can also decide if conduct moving in the opposite direction to the one to which the interim measures point can be an aggravating factor. Ultimately, it can consider interim measures for the purposes of finding a violation of the right to bring a case before the ECtHR or of finding a violation of Article 46 ECHR. The monitoring and sanctioning of the breaches of interim measures can help increase their future effectiveness. In this respect, it is worth noting that, very recently, in December 2020, the International Court of Justice (ICJ) pointed in the direction of more robust monitoring of the implementation of its provisional measures by revising its Resolution concerning the Internal Judicial Practice of the Court. Article 11 of the Resolution provides for the establishment of an ad hoc judicial committee that will examine the information submitted by the parties regarding compliance with provisional measures with a view to report to the ICJ and recommend potential options.
Second, even if the language of a political institution, like the Security Council (which failed to adopt a resolution on the 2020 Nagorno-Karabakh conflict), the UN Secretary General or one of the Council of Europe political organs (such as its Secretary General or, in the past, the Parliamentary Assembly), may resemble the language of a judicial instance, the latter type of institution relies on law, it exercises its authority as a court of law which speaks as the bouche de la loi. This also applies to interim measures, which – although they are not provided in the text of the ECHR, but on Rule 39 of the Rules of the Court – have been given a binding effect by the ECtHR. Interim measures do not merely have a weighty expressive function and symbolism that carries meaning and moral authority. They do not simply remind states of the law. They also declare that the law and the scrutiny, accountability and stigma for offenders that it entails are present.
Flower power against states: the limits of international (case) law
To fairly assess the effectiveness of interim measures in convoluted and highly charged inter-state disputes involving use of force or in situations of generalised emergency, it is also important to manage expectations and to see the bigger picture. Such interim measures should not be dissociated from the broader sociolegal environment within which they have been developed and called to produce effects. Thus, one must situate the question of the effectiveness of the interim measures of an international court, like the ECtHR, within the broader social and normative framework within which this Court operates, i.e. the international legal order, considering its systemic traits and deficiencies. Admittedly, international law and, in particular, the case law that international courts generate are neither a panacea nor the most powerful tool to address (the lawfulness of the situations emerging from) war. That is, a judgment on the merits in such cases will not necessarily be more effective than interim measures. This is evidenced by the difficulties in the implementation of the so-called ‘quasi inter-state’ cases. For instance, in spite of (or even against) the ECtHR case law, armies and significant state interests still prevent displaced persons like the applicants in Loizidou, or more specifically regarding Nagorno-Karabakh, Chiragov and Others and Sargsyan from accessing the property (including homes) that they lost because of armed conflicts. The same ‘impediments’, namely the military and state interests, also diminish the chances of the interim measures in the Nagorno-Karabakh conflict or in any similar situation from being (fully) respected. In such circumstances, the ECtHR is mindful of the limits of the effectiveness of its judgments. In Demopoulos, another case of displacement due to armed conflict, the Grand Chamber of the ECtHR openly admitted that “it would be unrealistic to expect that [… ] the Court should, or could, directly order the [respondent state] to ensure that the […] applicants obtain access to, and full possession of, their properties irrespective of who is now living there or whether the property is allegedly in a militarily sensitive zone or used for vital public purposes” (para. 112, emphasis added). These, in a sense, inherent limitations do not only concern the ECHR system; unless one thinks that, had the ICJ delivered a legally binding judgment instead of an opinion on the Chagos Archipelago, the UK would have been ready to comply with this Court’s ruling. For rulings to be effective, effective enforcement mechanisms are necessary, and what is capable of preventing/stopping war at the international level is what the international legal system has never managed to success(fully) build, i.e. an effective system of collective security.
Taking one for the team: the ECtHR as an international court
The key question that begs an answer then is whether, within this particular sociolegal environment and given the inherent limitations to effectiveness and enforcement that characterise the international legal order, interim measures that lack specificity and precision are still useful and necessary in cases of war. The answer to be given to this question is in the affirmative. Not just because, thinking in terms of a cost-benefit analysis, any reputational burden for the ECtHR is rather justified. Nor just because the indication of interim measures on inter-state conflicts is not completely futile as it invites states to engage with the indicated interim measures and it reminds them that international judicial scrutiny is present. What also justifies the usefulness and the need for provisional protection by the ECtHR is the fact that, by delivering interim measures in circumstances of war, the ECtHR is essentially performing its task as an international (rather than a quasi-constitutional) court, which is part and parcel of the international legal system. This way, the ECtHR contributes – to the extent that it can and from the perspective of human right law – to international peace and security, which is a key precondition for the enjoyment of human rights. The audience of such provisional protection measures are not solely the parties to the dispute, but the broader international community and the international legal order, which obtains one authoritative document pointing in the direction of international lawfulness.
In a sense, the ECtHR is taking a bullet for the team (i.e. the broader international legal order) and is filling the gap created, inter alia, by the failures of the United Nations Security Council and the lack of compulsory jurisdiction of the ICJ. For, had the United Nations Security Council and the system of collective security not been notoriously ineffective, states would not need so much to rely on the ECtHR. For, had the ICJ jurisdiction been compulsory, it would have been able to perform the role that the ECtHR is requested to play in conflicts like the recent one in Nagorno-Karabakh. This is what the ICJ has recently done, when, after prima facie establishing its jurisdiction, it indicated provisional measures in The Gambia v. Myanmar case concerning alleged violations by the respondent state of the Convention on the Prevention and Punishment of the Crime of Genocide and, in particular, genocidal acts against members of the Rohingya group. It is quite telling as to how concrete provisional protection should/can be that the measures indicated by the ICJ are not less abstract than those of the ECtHR. In The Gambia v. Myanmar, the ICJ provisional measures reiterate the law and set general goals, whilst giving wide discretion to the respondent state as to how to achieve such goals. The ICJ abstained from translating these goals into concrete policies, dos or don’ts. Accordingly, inter alia, Myanmar shall
‘take all measures within its power to prevent the commission of all acts within the scope of Article II of [the Genocide Convention … and] ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit [such] acts […] or [acts] of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide […]’.
Had the ICJ been in a position to issue a similar order on the 2020 Nagorno-Karabakh armed conflict, the states involved would not need to resort to oblique legal solutions by disguising disputes largely concerning jus ad bellum as human rights disputes to make them fall under the ECtHR’s competence. Indeed, the ICJ could have relied on relevant international law rules to indicate provisional measures concerning the situation in Nagorno-Karabakh. The inability to involve the ICJ forces states to seek surrogate solutions. The ECtHR interim measures are such a surrogate solution; a much-needed substitute that the ECtHR should generously grant to the extent that human rights law is applicable. If an international court like the ECtHR can exercise its authority – any authority that it may have – to point (be it in abstract terms) in the direction of peace and respect for fundamental human rights as a means to (try to) mitigate the intensity and the consequences of war, then interim measures are welcome. Even the slightest contribution is welcome and, indeed, very much necessary.