Georgia v. Russia (II): zooming in on conflict displacement

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. 

Introduction

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. 

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Damage control after Georgia v Russia (II) – holding states responsible for human rights violations during armed conflict

By Jessica Gavron and Philip Leach, European Human Rights Advocacy Centre, London

Introduction

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.

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On the Value of Interim Measures by the ECtHR on Inter-Sate Disputes

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.

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Catch 22: The Interim Measures of the European Court of Human Rights in the Conflict between Armenia and Azerbaijan

By Prof Kanstantsin Dzehtsiarou (University of Liverpool, Editor-in-chief of the European Convention on Human Rights Law Review)

On 29 September 2020, the European Court of Human Rights (ECtHR or Court) granted interim measures in the inter-state application of Armenia against Azerbaijan related to the conflict in Nagorno-Karabakh. Through these measures the Court demanded Armenia and Azerbaijan not to breach human rights of the civilian population. On 6 October 2020, the Court extended the already broad interim measures to ‘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’. It was at least the third time that the Court granted such measures in the context of the inter-state cases. Interim measures were also requested and granted in Georgia v Russia and Ukraine v Russia. I commented on the effectiveness of these measures in previous interstate cases here and here. Unfortunately, the current case provides further evidence that the Court’s interim measures in inter-state cases suffer from two key challenges: first, they are vague and their legal value is unclear; second, their impact almost entirely depends on the political reality on the ground. One can argue that the latter challenge can be applicable to every decision of the Court but when interim measures are issued in “the heat of the moment”, the costs of compliance for the parties can be too high.

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Compensation for victims in inter-state cases. Is Georgia v Russia (I) another step forward?

By Kanstantsin Dzehtsiarou (University of Liverpool)

On 31 January 2019, the European Court of Human Rights (ECtHR) delivered a judgment on just satisfaction in the inter-state case of Georgia v Russia (I). The ECtHR ordered the respondent state to pay 10 million euros to the applicant country. In turn, Georgia will have to distribute this amount among about 1500 victims of the violations identified by the Court in its main judgment. The Court is developing a very new line of case law by awarding non-pecuniary damage in inter-state cases. Until the judgment in Cyprus v Turkey, delivered in 2014, the Court has never awarded financial compensation in inter-state cases. It is beyond the scope of this short post to consider if the Court is doing the right thing by using just satisfaction in the inter-state cases. In this post I will just show some potentially problematic areas which the Court would have to address if this issue is considered again. There are a few pending inter-state cases and the question of compensation is very likely to resurface again. Continue reading