March 22, 2022
By Aurélie Van Baelen
On the early morning of 24 February 2022, when Russian tanks crossed the border into Ukraine, brutally invading sovereign territory, Europe entered a new era. After weeks of build-up tensions alongside the Russian-Ukrainian border, and the Belarusian-Ukrainian border, the Russian President dared to do what many feared, but hoped he would not do.
Western leaders immediately denounced the invasion calling it “a brutal act of war […] a blatant violation of international law”, “unprovoked and unjustified”, and “Europe’s darkest moment since World War II”. A myriad of economic sanctions from the West followed the invasion, targeting Russian President Vladimir Putin, Russia’s financial system, Russian oligarchs and business elites linked to the Kremlin, and companies active in military and defence areas. On 15 March, the EU announced a fourth set of sanctions to be imposed on Russia with more and more restrictive measures in response to Russia’s “brutal aggression against Ukraine and its people”. Along with the economic sanctions came measures taken by private and public entities to condemn the invasion and to show their support to (the people of) Ukraine.
On 1, 4 and 10 March, the European Court of Human Rights (hereinafter ‘the Court’ or ‘ECtHR’) in turn granted urgent interim measures against the Russian Federation concerning the country’s military operations on Ukrainian territory (here and here), and concerning the silencing of independent media in Russia which report on the military action in Ukraine (here). The Court also announced measures in respect of cases in which Ukraine is a respondent or an applicant Government (here).
On this blog, several authors have already addressed the legal value and effectiveness of interim measures with regards to inter-state disputes (here and here). While they certainly make valid points, the position taken in the blog post at hand will be more favourable towards the Court, stressing the importance of bearing realistic expectations of what the Court can do when it is faced with an inter-state conflict.
Interim measures against the Government of the Russian Federation
Under Rule 39 of the Rules of the Court, the ECtHR may, “at the request of a party or any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties of the proper conduct of proceedings”. Interim measures are urgent measures which apply only when the Court believes there is an imminent risk of irreparable harm.
On 28 February 2022, the ECtHR received a request from the Ukrainian Government to grant urgent interim measures in relation to the “massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine”. Well-aware of the obvious existence of a real risk of serious and irreversible harm, the Court granted the request in a matter of days.
In its issuing statement, the Court considered the military action of the Russian Federation in various parts of Ukraine to give rise to a real and continuing risk of serious violations of several of the Convention rights of the Ukrainian 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). Therefore, the Court called on the Russian government to refrain from all 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 the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.
The ECtHR further called on the Russian government to inform the Court of the measures taken to ensure that the European Convention of Human Rights (hereinafter the ‘Convention’ or ‘ECHR’) is fully complied with. The Court also gave immediate notice of the urgent interim measures to the Committee of Ministers of the Council of Europe.
On 4 March 2022, merely days after granting the request for interim measures of the Government of Ukraine, the Court issued a new statement after receiving a number of requests from individuals on Ukrainian territory against the Government of the Russian Federation. The persons include those who are “taking refuge in shelters, houses and other buildings, fearing for their lives due to ongoing shelling and shooting, without or with only limited access to food, healthcare, water, sanitation, electricity, and other interconnected services essential for survival, people in need of humanitarian assistance and safe evacuation”.
Indicating the general scope and nature of the interim measures granted on 1 March, the Court decided that any request which was brought by persons falling under the category of civilians, who provide sufficient evidence showing that they face a serious and imminent risk of irreparable harm to their physical integrity and/or right to life, was covered by the already issued interim measures. It furthermore urged the Russian government to ensure unimpeded access of the civilian population to safe evacuation routes, healthcare, food and other essential supplies, the rapid and unconstrained passage of humanitarian aid and movement of humanitarian workers, in addition to the demand to respect Articles 2, 3, and 8 of the ECHR.
On 8 March, the Court granted yet another request for interim measures that is linked to this conflict. This time, the request originated from Russia, and more precisely from ANO RID Novaya Gazeta and OOO Telekanal Dozhd, together with Dmitriy Andreyevich Muratov (2021 Nobel Peace Laureate and editor of Novaya Gazeta) and Natalya Vladimirovna Sindeyeva (owner of Telekanal Dozhd). The applicants asked the Court to urge the Russian government not to interfere with the lawful activities of Russian mass media, in particular all activities regarding the coverage of the armed conflict on the territory of Ukraine. The applicants referred to the numerous orders to delete specific articles that contained opinions regarding the conflict which differed from the official point of view of the Russian authorities, as well as the blockage and/or discontinuation of several media sources in Russia, including Telekanal Dozhd, and new legislation imposing custodial and financial penalties on those who knowingly spread “untrue information about the actions of the Russian armed forces”. After implementing the aforementioned legislation, on the same date, the Novaya Gazeta stopped reporting on the military action in Ukraine and deleted the already published materials on the matter.
Whilst not explicitly tying this interim measure to the first, more general, interim measure granted in light of the Ukrainian conflict, the Court considered the exceptional context in which the request was lodged. As a result, it ordered the Russian government to refrain from actions and decisions aimed at the full blocking and termination of the activities of Novaya Gazeta, and from other actions that could deprive Novaya Gazeta of the enjoyment of its rights guaranteed by Article 10 of the Convention (the right to freedom of expression).
Inter-state interim measure: to do or not to do?
The issue of interim measures and the ECtHR has been amply debated. Previously, scholars have questioned the effectiveness of interim measures in inter-state conflicts because of the poor record of state compliance with the measures (see also here and here). Moreover, the broadness of the measures has also been criticized. As a result, their legal value has been put into question. All mentioned authors argue that the wider the scope and the higher the stakes for states, the less likely that interim measures will be complied with. They further indicated the “increased difficulty for the ECtHR to assess compliance” in case less specific interim measures are granted.
These scholars make valid points and their arguments are hard to refute, especially since it is unclear yet whether the current interim measures against Russia (or even the Western sanctions) will have any effect at all on Russia’s compliance with international human rights law or a discontinuation of hostilities. However, I find myself more favourable towards the Court in this matter. When faced with wars and other similar situations of emergency, where a real risk for grave human rights abuses on a large scale exists in a theatre of chaos, it is important to issue measures that can serve as an ‘umbrella’. The more abstract or ‘vague’ the measures taken, the broader the range of acts and omissions with regards to possible human rights abuses it encompasses. Moreover, abstract measures can offer an important and necessary protection to a large number of potential or actual victims, as is proven by the Court’s decision to have all individual cases of serious and irreparable harm be covered by its earlier, broader interim measures. Furthermore, nothing prevents the Court from issuing subsequent more concrete measures (e.g. to provide unimpeded access to humanitarian aid operations and to ensure safe evacuation of the civilian population) after first issuing general interim measures, as it did here as well.
Naturally, interim measures will not cease the violence. The Court has no such power. Moreover, interim measures will not (always) prevent (all) atrocities from happening. This has become crystal clear in the course of the current conflict when the Russian government conducted a direct attack against a maternity in Mariupol, merely days after the Court issued the interim measures (and in doing so gravely breached several rules of international law). Indeed, and unfortunately, the impact of interim measures issued in inter-state conflicts depends largely on the “political reality on the ground”, as Prof. Kanstantsin Dzehtsiarou has previously argued. In this regard, I believe it is important to remain realistic as to what the Court can actually achieve. We should “carefully manage our expectations”, as Isabella Risini so eloquently wrote. At best, interim measures can have a deterrent effect and prevent the worst human rights violations from happening. While one wishes for more, at least they draw attention to the conflict and the responsibilities of the warring parties. When it comes to managing one’s expectations, it is also important to note the disastrous track record of the Russian Federation regarding compliance with binding judgments of the ECtHR. Furthermore, even if interim measures might not offer anything tangible, it would be incredibly problematic if the Court, as a beacon of human rights, decided to remain completely silent on the matter. Not only did it take action, something can be said as well about the swiftness with which the Court has adopted its interim measures.
Finally, it is remarkable that in all interim measures issued with regards to the current conflict in Ukraine, the Court has only called on the Russian government to refrain from unlawful attacks against the civilian population. This is in clear contrast with previous inter-state interim measures, where the Court explicitly called on both (or all) parties to the conflict to secure the Convention rights (see e.g. here, regarding the events in 2014 in Crimea). It has previously even included states that were ‘only’ indirectly involved in the conflict (see e.g. here, regarding the alleged involvement of Turkey in the Armenia-Azerbaijan conflict regarding Nagorno-Karabakh). In the matter at hand, however, the Court takes a clear stand and sides with (the people of) Ukraine against Russia. Whether or not it is purposely oblivious to its impartiality is for us to guess.
As the armed conflict on Ukrainian territory enters its third week, writing about the value of interim measures from a safe distance, away from the shelling and the shooting, leaves a bit of a wry feeling. Russia has blatantly crossed – and continues to cross – all sorts of red lines concerning violations of public international law, international human rights law, and international humanitarian law. It seems not impressed by any of the interim measures nor the myriad of international sanctions taken against it. However, it must be stressed that – whether effective or not – taking a clear stand against the Russian aggression and forming a united front are of utter importance.
Thus, rather than condemning the Court for granting requests for interim measures in inter-state matters, I argue that it would be better to adjust our expectations, to be realistic, and to stand with the Court as it urges parties to respect all human rights under the Convention, hoping to prevent the worst atrocities from happening. The Court is not able to bring a halt to this war, nor will it be able to prevent future wars from happening. However, remaining silent brings no hope. And there must always be hope when dealing with international human rights law.