February 17, 2021
Deborah Casalin is a PhD researcher in the Law and Development Research Group at the University of Antwerp Law Faculty. Her research focuses on the role of international and regional human rights mechanisms in ensuring reparation for arbitrary displacement.
The European Court of Human Rights’ Georgia v. Russia (II) judgment – the first inter-State merits judgment in twenty years to address a situation of armed conflict between parties to the European Convention on Human Rights – has already given rise to highly critical legal discussions, including an extensive contribution by Jessica Gavron & Philip Leach here on Strasbourg Observers. The main focus so far has rightly fallen on the Court’s U-turn on extra-territorial jurisdiction and its effective banishment of active hostilities to a legal no-man’s-land. The aim of this post is not to revisit these debates, but to delve further into the judgment and zoom in on the aspects of the case relating to displaced people. Around 300 000 people are currently internally displaced in Georgia – some have not been able to return to South Ossetia or Abkhazia since the 2008 conflict, while others still have not found a durable solution in over three decades since previous conflicts in those regions. Considering the ongoing and serious consequences of conflict-related displacement in Georgia, as well as in other countries within and beyond the Council of Europe, the Court’s position on the issue has potentially broad resonance and so merits further analysis.
Facts and findings on displacement
During the 2008 conflict between Russia and Georgia, the EU Fact-Finding Mission established that over 100 000 people fled their homes in South Ossetia, Abkhazia and surrounding areas (§32). While many left to escape the general dangers of the hostilities, local forces connected to de facto South Ossetian and Abkhazian separatist authorities also conducted a campaign of burning and looting mainly ethnic Georgian villages, accompanied by forcible expulsion of people who had not yet fled under threats of violence and death. While the role of Russian forces varied, it was concluded overall that they had played a passive role by generally tolerating these actions and failing to intervene to prevent or investigate them (§§205 – 219). Following the conflict, it was also alleged that approximately 23 000 Georgians were still prevented from returning to their homes in South Ossetia and Abkhazia. Russia responded that although it is cooperating with South Ossetian and Abkhazian authorities on border control, this remains under local control, and is necessary to prevent terrorism (§§ 282 – 285). The de facto authorities in turn asserted that they cannot guarantee Georgian returnees’ safety (§297).
The Court examined the destruction of villages which took place during the occupation phase following the 12 August 2008 ceasefire (§§ 199 – 222), as well as the prevention of Georgians’ return to Abkhazia and South Ossetia (§§296 – 301). It confirmed that there was no divergence between the international humanitarian law (IHL) of occupation and the Convention on these issues, and that both constituted administrative practices, owing to their systematic nature and the official tolerance of Russian forces which had had effective control over the areas in question. The Court found that the burning and looting of villages gave rise to violations of the rights to respect for the home and property, as well as humane treatment, and that Russia was responsible for these actions of local forces on grounds of its effective control of the areas. Furthermore, as in Cyprus v. Turkey, the Court found violations arising from the prevention of return, though relying here for the first time on the right to freedom of movement and residence. Implicitly reaffirming the Guiding Principles on Internal Displacement on this point, the Court confirmed that Russia, as well as the de facto authorities, are under a duty to facilitate return to regions under their effective control. These rulings on violations caused by displacement during the occupation phase, as well the prevention of return, are an important recognition of the situation of (certain) displaced persons and their entitlement in principle to reparation, as well as of the serious nature of the violations through the finding of administrative practices. However, two major omissions are examined below.
Displacement during hostilities: simply collateral damage?
As already analyzed in detail on Strasbourg Observers and elsewhere, the Court controversially declined to exercise jurisdiction over events taking place in the ‘active phase of the hostilities’ between 8 – 12 August 2008 (§144). As far as displacement is concerned, this means that instead of examining the legality of various causes of displacement in this period (e.g. forced expulsion as opposed to flight from the general effects of hostilities), the Court has left any displacement during hostilities entirely outside the scope of its consideration (as with other potential violations in this ‘context of chaos’). The situation of those affected is therefore only examined to the extent that they may have been prevented from returning afterwards. This limits the scope of potential reparation (see e.g. the just satisfaction judgments in Chiragov v. Armenia, § 60, and Sargsyan v. Azerbaijan, § 44), and also fails to recognize the situation of potential forced expulsion victims as a consequence of the same administrative practice identified during the occupation phase.
Besides drawing an arbitrary temporal distinction between victims in this case, the Court’s approach here further widens an unwarranted legal distinction in the protection of civilians from displacement in conflicts with and without an inter-State element. This is rooted in the divergence between IHL protections against displacement in non-international armed conflicts (NIACs) and international armed conflicts (IACs), with the former being far more comprehensive than the latter. In NIACs, the Second Additional Protocol to the 1949 Geneva Conventions imposes broad prohibitions on causing displacement of civilians. The Court referred to these provisions and implicitly used them to interpret the Convention in Esmukhambetov and others v. Russia, where it found that the destruction of the applicants’ homes in an aerial bombing, resulting in their displacement from their village, violated their rights to respect for their homes and property. In IACs, on the other hand, the Fourth Geneva Convention (GC IV) only explicitly prohibits forcible transfer of protected persons within and from occupied territories. Civilians in situations of active hostilities in an IAC – such as the inhabitants of Abkhazia, South Ossetia and the buffer zone prior to the ceasefire – only benefit in principle from the protection of general IHL rules on the conduct of hostilities, such as distinction, proportionality in attack, etc. This situation is also reflected in the corresponding customary IHL rules, although the commentary refers to a possible bridging of this gap via an emerging norm of State responsibility for conflict displacement caused by unlawful acts.
The arbitrary nature of these different levels of protection of civilians from displacement is even further underlined when considering that a separate NIAC was deemed to be ongoing between Georgia and the South Ossetian and Abkhazian forces, in parallel to the IAC between Georgia and Russia (§33). Diverging NIAC and IAC rules would mean that displacement in the same factual context would have to be assessed differently depending on which actors were involved. The Court’s application of human rights law (informed by IHL) to the situation at hand could have contributed to resolving such inconsistencies and lent support to the emerging convergence between IAC and NIAC protections in customary law. However, the Court’s refusal to examine displacement in active hostilities at all is not only a missed opportunity to contribute to legal development – it represents a clear backtracking from the Court’s earlier willingness to examine displacement during hostilities in Esmukhambetov, and fails to uphold even the most basic protections for people displaced during hostilities on the territory of a party to the Convention.
Potential discriminatory motives: still ‘not necessary to examine’?
Some of the testimonies and reports cited by the Court regarding the burning of villages and expulsion of their inhabitants contain serious claims of a systematic campaign aimed at predominantly ethnic Georgian villages, or even of ethnic cleansing, thus raising indications of discriminatory motives for the destruction and expulsions (§§205 – 208). However, in line with its overall approach to mass conflict displacement on an allegedly discriminatory basis – as applied in Cyprus v. Turkey (§199), as well as individual cases relating to southeast Turkey, Bosnia, Armenia and Azerbaijan – the Court once again found it unnecessary to examine potential violations of Article 14 (right to non-discrimination) in conjunction with other rights. Instead, discrimination was only indirectly alluded to via references to the displaced persons’ ethnic or national origin in considering the prevention of return (§§297 – 299).
This approach contrasts sharply with the Court’s handling of cases of violent displacement of Roma communities. Despite differences in context and scale (i.e. absence of armed conflict, and involving only single communities), these cases display important similarities to the situation in Georgia v. Russia (II), as the applicants were also violently driven from their homes by private actors in mass incidents, on apparently discriminatory grounds, while authorities of the responsible State (at best) failed to intervene or to conduct effective investigations. In the Roma cases, however, the Court did find violations of the right to non-discrimination in conjunction with the right to respect for the home and/or the right to a fair trial (Burlya and others v. Ukraine, §§ 169 – 170; Moldovan and others v. Romania (no. 2), §§ 138 – 140). In Burlya v. Ukraine, the Court went further to find that in investigating violent incidents, States are obliged “to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events at hand”, and underlined that treating cases with and without such motives in the same manner ignores the particularly destructive effect of discriminatory acts on fundamental rights (§124). While standards of conduct and investigation in conflict situations may justifiably differ from those in peacetime, it is difficult to see how conflict would render discriminatory motives irrelevant – and all the more so in a context where allegations of persecution, based on reported forcible expulsion of Georgians due to their ethnicity, are under ICC investigation (§19 – 22, 31).
In contrast to these previous cases, it is especially remarkable that here, Georgia did not even take the step of invoking Article 14, despite its previous determination to pursue the discrimination issue – most prominently, via an ICJ application based on CERD, which was already ruled inadmissible in 2011. It is unclear whether Georgia did not advance a discrimination claim before the European Court because of the expectation that it would lead nowhere (as was the case in Georgia v. Russia (I), §§220 – 221), and/or because it is expected that the pending ICC investigation will address the discriminatory aspect in relation to allegations of persecution. Either way, potential discriminatory motives underlying the mass displacement – and the gravity which such motives would add to the situation, especially in light of alleged forced demographic changes (§49) – are rather glossed over by the Court, though this time seemingly without opposition from the applicant State.
The Court’s finding that the displacement of civilians under occupation violates their human rights is significant, as it is the first time that the initial causing of displacement in such a case (rather than only the prevention of return) has fallen within its temporal jurisdiction. As such, Georgia v. Russia (II) provides a welcome confirmation of the convergence between the Convention and GC IV on this norm, as well as opening an avenue for its enforcement and for eventual reparation for victims. However, the Court’s abrupt and regressive restriction of its territorial jurisdiction during hostilities – and between two Council of Europe States, at that – means that it not only missed the chance to contribute to developing the legal protection of civilians from displacement during hostilities in IACs, but also unjustifiably failed to address their situation, even in a context where it found that systematic expulsions took place only days later. The Court’s assertion that IHL still applies to the active hostilities phase is of little help to people displaced during hostilities, given the dearth of international IHL enforcement mechanisms, let alone any which could be accessible to victims. Furthermore, while the Court’s blind-spot on potential discriminatory motives is not a new development, it remains puzzling that Georgia did not pursue the issue here, especially after the procedural failure of its CERD claim. All in all, while the Court’s approach to the causes of displacement in this judgment still leaves some rather large gaps, its tried and tested findings on prevention of return are the element which is likely to offer perspective for most people who still remain displaced over a decade later, regardless of why (or on which exact date) they had to flee their homes.
Note: the author would like to thank Cornelia Klocker for valuable discussions on the issue of discrimination.