By Jessica Gavron and Philip Leach, European Human Rights Advocacy Centre, London
The European Court of Human Rights’ recent Grand Chamber judgment in the case of Georgia v Russia (II) has already been the subject of strong criticism, both from within the Human Rights Building and outside. For Judge Pinto de Albuquerque, the judgment represented a ‘pernicious progeny of Banković’. Judges Yudkivska, Wojtyczek and Chanturia aver that the majority have confirmed the Latin maxim silent enim leges inter arma (in times of war law falls silent). For Marko Milanovic, the decision is ‘exemplary only in its arbitrariness’. Helen Duffy points to the ‘potentially insidious policy implications’ of the judgment. Commenting on the Court’s deference to international humanitarian law (IHL), Isabella Risini notes that ‘judicial mechanisms for the enforcement of IHL are largely inexistent’. Kanstantsin Dzehtsiarou suggests that ‘the Court is ready to give up on massive human rights violations because they are too difficult to deal with.’
Although there is so much in this judgment to be dissected, this post focuses on the single, critical question of how to determine jurisdiction in respect of extra-territorial armed conflict. We revisit and discuss relevant international jurisprudence, but in the limited space available, we do not of course claim to be comprehensive.
Arising from the brief but devastating five-day conflict in August 2008, in its inter-state application, originally lodged on 11 August 2008, the Georgian Government complained of indiscriminate and disproportionate attacks against civilians and their property on the territory of Georgia by the Russian army and by South Ossetian forces placed under their control. The Court found that from 8 August 2008 Russian ground forces penetrated into Georgia by crossing through Abkhazia and South Ossetia before advancing into the neighbouring regions in undisputed Georgian territory. They were assisted by the Russian air force and the Black Sea fleet.
Jurisdiction or chaos?
The most fundamental question for the Court to decide was that of jurisdiction. As the events occurred outside the territory of Russia, did it have jurisdiction – in other words, was it bound by the European Convention on Human Rights with respect to these events? As is well established and well known, the circumstances in which states are considered to have jurisdiction outside their territory include situations (a) where they have ‘effective control’ of an area, and (b) where they exercise ‘state agent authority and control’ (for example, where a person is taken into custody).
Russia was found to have ‘effective control’ in South Ossetia and in Abkhazia, as well as in the buffer zone, from 12 August to 10 October 2008 – the date of the official withdrawal of the Russian troops – and also during the ensuing period of occupation. In effect, then, the Court held that Russia had jurisdiction after 12 August, and was subject to the Convention from that date onwards.
All well and good. However, the Court drew a distinction between this occupation phase and the prior period of military operations carried out during the active phase of hostilities. The majority of the Grand Chamber took the view that during military operations (meaning armed attacks, bombing or shelling) conducted in an international armed conflict there can be said to be no ‘effective control’ over an area: ‘The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area’ (§126). For the same reasons, nor was there ‘state agent authority and control’. Therefore, Russia was found (by 11 votes to six) to have had no jurisdiction during the active phase of hostilities.
This led the Court to declare inadmissible complaints relating to ‘the events which occurred during the active phase of the hostilities (8 to 12 August 2008)’. The blanket exclusion of any basis of jurisdiction during this period and consequent finding of inadmissibility appears confusing and incoherent. This is because the Court nonetheless proceeded to find violations of the Convention, arising from the very events it had declared inadmissible: in relation to the detention of civilians from 10 August and prisoners of war from 8 August, as well as the failure to investigate violations of the right to life inclusive of this period. The basis on which the Court could do so is not clearly set out.
A different way forward?
We suggest that the consequences of this finding are seriously deleterious to the international system of human rights protections and will inevitably lead to unconscionable results. For example, cases of civilians killed by artillery shelling (see Isayeva v Russia) or aerial attacks (see Esmukhambetov and Others v Russia) within their own state (in situations of non-international armed conflict) can be taken to the Strasbourg Court. However, as a result of Georgia v Russia (II), the Court is likely to reject cases concerning people killed in a similar way in a location beyond a state’s borders in another Council of Europe state (in an international armed conflict). It would also seem that if state agents cross a border and detain a person, they are subject to the Convention, whereas they may not be considered to be acting within the state’s jurisdiction if, in a large-scale attack, they cause the person’s death.
One of the reasons for the majority’s reluctance to accept jurisdiction in this case was that the active phase of hostilities is ‘predominantly regulated’ by IHL (§141). However, any perceived clash of legal frameworks is dismissed by the Court’s reaffirmation that the Convention must be interpreted in harmony with IHL, and the references to IHL principles throughout the judgment. Nevertheless, the glaring inconsistencies, and injustices, created by this judgment are not ameliorated by the Court’s recognition of the application of IHL in situations of armed hostilities. This is because there is no effective means for individual victims to enforce IHL.
We propose to scrutinise and revisit the question of jurisdiction, to suggest a new (and, we hope, more coherent) way forward as regards the use of lethal force. We do so by challenging the central conclusion reached in Georgia v Russia (II) (which was far from inevitable given previous case-law) and also by drawing distinctions with differing situations.
Our argument is founded on three initial premises. The first premise is that in applying the jurisdictional tests, the Court has been prepared to take account of the extent of state control in order to assess the extent of a state’s Convention obligations. For example, in Cyprus v Turkey, as Turkey was deemed to have had ‘effective overall control’ over northern Cyprus, its jurisdiction extended ‘to securing the entire range of substantive rights’ in the Convention. As was acknowledged in Al-Skeini and Others v UK, where a state exercises control over an individual through its agents, the state is only under an obligation to secure the Convention rights ‘that are relevant to the situation of that individual’. These precedents show indisputably that the Court has acknowledged that Convention rights can be ‘divided and tailored’.
The second premise is the recognition in the jurisprudence of the need for states to be held responsible when they cause human rights violations abroad. Nearly three decades ago, the Court reiterated that state responsibility can arise ‘because of acts of their authorities producing effects outside their own territory’ (Drozd and Janousek v France and Spain). Such explicit consideration of effects beyond borders also featured in cases such as Loizidou v Turkey, Issa and Others v Turkey and Medvedyev and Others v France. The Court in Issa recognised what was arguably both an ethical and logical basis for this position, namely that: ‘Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory.’
Thirdly, the Article 2 prohibition from intentionally and arbitrarily depriving any person of life has been applied by the Court when state agents have used lethal force outside their national borders (see, for example, Isaak v Turkey and Al-Saadoon and Mufdhi v UK). In Georgia v Russia (II), these cases, as well as Solomou and Others v Turkey and Andreou v Turkey, are distinguished by the Court from armed conflict situations as concerning ‘isolated and specific acts involving an element of proximity’ (§132).
The reasons for the Court finding jurisdiction in particular in Solomou and Andreou deserve further scrutiny. Turkish soldiers shot and killed Mr Solomou as he climbed a flagpole during a demonstration taking place close to the UN buffer zone in Cyprus. Although Turkey did not have effective control over the buffer zone, the Court, nevertheless, found that Turkey had jurisdiction over Mr Solomou. The Court took account of three factors: (i) the acts complained of took place partly outside territory controlled by Turkey (in the UN buffer zone); (ii) the flag pole that Mr Solomou had been climbing when he was shot was situated in territory that was deemed to be under Turkey’s ‘effective control’; and (iii) Turkish-Cypriot forces fired the shots that killed Mr Solomou. In Andreou, the applicant was shot while standing completely outside Turkish-occupied territory. Nevertheless, the Court found that Turkey had jurisdiction, reiterating that ‘in exceptional circumstances, the acts of Contracting States performed outside their territory or which produce effects there…may amount to the exercise by them of their jurisdiction within the meaning of Article 1 of the Convention’. The Court found that Turkey had jurisdiction because: (i) Turkish or Turkish Cypriot uniformed personnel from the territory of the Turkish Republic of Northern Cyprus fired shots that caused the applicant’s injuries; and (ii) the applicant was standing outside territory controlled by Turkey, but within territory controlled by Cyprus, a state party to the Convention. The Court concluded that Turkey’s jurisdiction was engaged because the opening of fire on a crowd at close range was the ‘direct and immediate cause’ of the applicant’s injuries.
A ‘direct and immediate cause’ test reflects the notion of proximity of effects, which was referred to in Georgia v Russia (II), and also by a differently constituted Grand Chamber in the seminal case of Ilaşcu and Others v Moldova and Russia. In the latter, the Court held: ‘A State’s responsibility may also be engaged on account of acts which have sufficiently proximate repercussions on rights guaranteed by the Convention, even if those repercussions occur outside its jurisdiction’.
In addition to the notion of proximity, the context in which the Court applied the ‘direct and immediate cause’ test in Andreou also entailed an element of foreseeability: it was foreseeable that opening fire on a crowd at close range would result in personal injury. The Court already incorporates an underlying principle of foreseeability into its assessment of responsibility under the positive obligations to prevent violations of Articles 2 and 3. It is reflected in the ‘real and immediate risk to life’ test, which was laid down by the Grand Chamber in the Osman v UK judgment: ‘[I]t is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge’. Equally, the Court’s evaluation of responsibility for violations of Article 3 occurring beyond the territorial jurisdiction of a state, and in territory over which it has no control, is also premised on the foreseeability of harm. For example, in El-Masri v ‘the former Yugoslav Republic of Macedonia’, the Grand Chamber assessed the action taken by the respondent state which had ‘as a direct consequence the exposure of an individual to proscribed ill-treatment’, requiring an examination of the ‘foreseeable consequences’ of sending the applicant to the receiving country.
Thus, the foreseeability requirement underlying the principle of ‘direct cause and effect’ delimits its application, recognising that not everyone affected by an act imputable to a state is brought within its jurisdiction. This approach is endorsed by international and regional human rights mechanisms.
Authority beyond Strasbourg
That the majority judges in Georgia v Russia (II) fail to refer to the recent seminal General Comment on the right to life published by the UN Human Rights Committee is a surprising and significant omission. In its General Comment No. 36 (2018), the Committee expressly affirmed its view that, where military or other state activity affects the right to life (Article 6 of the International Covenant on Civil and Political Rights (ICCPR)), extraterritorial jurisdiction incorporates a direct-and-foreseeable effects test:
… a State party has an obligation to respect and to ensure the rights under Article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. (emphasis added)
The General Comment builds on the Committee’s earlier jurisprudence which found that jurisdiction under the ICCPR refers ‘not to the place where the violation occurred, but rather to the relationship between the individual and the state in relation to a violation of any of the rights set forth in the Covenant, wherever they occurred’ (Burgos v Uruguay).
The Inter-American Court of Human Rights has also embraced a version of a ‘direct-and-foreseeable effects’ test for extraterritorial jurisdiction. In 2017 advisory opinion in response to a request submitted by the Republic of Colombia regarding the environment and human rights, the Court interpreted jurisdiction to encompass cross-border ‘effects’ where there is a direct causal relationship between activities in one state and violations of the rights of people in another. If such a causal relationship exists, any person whose rights are affected is deemed to fall within the jurisdiction of the state in which the harm originated. This is true regardless of whether or not the person was physically within the responsible state’s territory and of whether the person was under the responsible state’s control at the time the victim experienced the harm. However, this approach is qualified, as not all state actions that result in cross-border harm will necessarily trigger the state’s jurisdiction. Instead, such jurisdiction arises only when the state authorities knew, or should have known, of a real and immediate risk to the right to life and took no action to prevent this infringement on the right. The Inter-American Court thus limits its recognition of jurisdiction to cases where the effects of a state’s action are both foreseeable and violate the right to life.
Similar principles have been expounded by the African Commission on Human and Peoples’ Rights, which, in a 2015 General Comment on the right to life, has stated that the nature of a state’s obligations to individuals outside that state’s territory depends, in part, on ‘whether the state engages in conduct which could reasonably be foreseen to result in an unlawful deprivation of life’ (emphasis added).
There are thousands of individual cases arising from international armed conflict pending at the Court, arising from hostilities in South Ossetia, eastern Ukraine and Crimea, and Nagorno-Karabakh. The ‘policy decision’ taken by the majority of the Grand Chamber in Georgia v Russia (II) to disallow complaints arising from the active phase of hostilities may have suddenly pulled the rug from under the victims’ feet.
We advocate another way. In light of the principles which have been established and confirmed in the Court’s case-law, and by other international tribunals, we suggest that direct causation, immediacy, proximity and foreseeability should be considered as factors which are relevant to a jurisdictional test as regards the use of lethal force extra-territorially. Thus, there would be no blanket rejection of jurisdiction for armed hostilities, but instead a considered and nuanced assessment of these factors which could lead to different conclusions in differing circumstances.
Note: The authors would like to thank the staff and students at the Allard K. Lowenstein International Human Rights Clinic at Yale University who co-drafted with EHRAC a third party intervention in the cases of Allahverdiyev v Armenia (25576/16) and Hakobyan v Azerbaijan (74566/16) on which this post draws. See further: Philip Leach, ‘On inter-state litigation and armed conflict cases in Strasbourg’ (2021) 2(1) European Convention on Human Rights Law Review (forthcoming).