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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