Opportunity Lost: The ECtHR’s Restrictive Approach Re-ignites Vacuum between Human Rights and Humanitarian Law – Alessandro Silvestri

In Georgia v Russia (II), the European Court of Human Rights (‘ECtHR’ or ‘Court’) was asked to decide on numerous alleged breaches of human rights by the Russian Federation (‘Russia’) during a five-day armed conflict between Georgia and Russia. Despite the legal trend favouring the complementarity between International Human Rights Law (‘IHRL’) and International Humanitarian Law (‘IHL’), the Court ultimately held that Russia lacked jurisdiction over extraterritorial breaches of human rights under art 1 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’), signalling a regrettable turnaround from recent case-law.

The ECtHR was handed the perfect opportunity to move past, as rightly underscored by Judge Chanturia, the legally ‘lifeless’ Bankovićdecision and enrich the interplay between IHRL and IHL in Georgia v Russia (II),but ultimately failed to do so. 

For legal purposes, the events under scrutiny may be divided in two parts. The first part concerned the armed conflict between Georgia and Russia, with South Ossetians and Abkhaz forces also playing an important role. Hostilities started on the night of 7 to 8 August 2008 and lasted for about five days, resulting in significant losses, including an alarming number of civilian casualties. Secondly, following a ceasefire, Georgia submitted that Russia perpetrated a number of human rights abuses, including the killings and displacement of civilians, the degrading treatment of civilians and prisoners of war, lootings and destruction of civilian objects, which would constitute significant violations of the ECHR. The scope of this written work is to assess the ECtHR’s approach to the first part and assess whether said approach adequately grasped the interplay between IHRL and IHL, as the latter comprises the body of international law applicable to armed conflicts.

The interplay between IHRL and IHL has been subject to much scrutiny in international law. It is internationally recognised that the two bodies of international law are mutually complementary, thus meaning that the protection of certain human rights, in particular, as the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons argued at § 25, the ‘right not arbitrarily to be deprived of one’s life’, does not cease during armed conflict (see also Orakhelashvili and the ICTY in Prosecutor v Kunarac et al§ 467). On the other hand, the ‘intricate legal issues of interplay that sometimes arise’ have arguably posed practical challenges in the way the interplay is to be understood, such as matters of derogation, jurisdiction, discretion, accountability, etc. (see also Bethlehem, 180– 82). The opportunity Georgia v Russia (II) presented for furthering the interpretation of applicable human rights norms in situations of armed conflict was therefore invaluable.

However, the ECtHR at § 144 refrained from tackling the issue by arguing that Russia had no jurisdiction over the human rights violations during the five days of armed conflict. Article 1 of the Convention states that all state parties must ensure that the rights and freedoms of the ECHR are applied to everyone ‘within their jurisdiction’. The Court, perhaps surprisingly, then turned to the Banković decision (§ 67), which had an enormously narrow view in assigning jurisdiction over the application of human rights outside states’ territories and argued that jurisdiction exists only when a state can exercise physical power and control over individuals outside state borders. The ECtHR (§ 130) thus investigated whether Russia had ‘State agent authority and control’ over the individuals outside state borders as the criteria to argue the presence of jurisdiction. In the end, similarly to the Banković decision, the ECtHR (§ 137) held that ‘the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos not only means that there is no “effective control” over an area […] but also excludes any form of “State agent authority and control” over individuals”’. 

This is clearly a turnaround from the trend favouring a more liberal application of IHRL in armed conflict. The ECtHR itself, in the 2014 landmark case Hassan v United Kingdom(§ 102), began consolidating the interplay between IHRL and IHL under the Convention by laying the groundwork for their coexistence, in particular by explicitly stating that the ECHR still applies in armed conflict; that, even in the absence of derogations under art 15 of the Convention, the purpose of the Convention was to ‘protect the individual from arbitrariness’; and, most importantly, that ‘the Convention must be interpreted in harmony with other rules of international law of which it forms part’ [emphasis added]. Georgia v Russia (II) therefore appears as a lost opportunity to capitalise on the momentum of the IHRL-IHL interplay and crystallise the idea of ‘harmony’ envisaged in Hassan v United Kingdom by ensuring state accountability and justice for civilians that were allegedly and arguably arbitrarily attacked during an armed conflict.

The main question that arises from Georgia v Russia (II) inevitably concerns the criteria to be applied in assigning jurisdiction to a state party to the Convention. Without jurisdiction, state parties would be shielded from responding to the ECtHR for alleged human rights abuses. (Please note that, even if states do respond to the ECtHR for human rights abuses in the absence of jurisdiction, it does not mean that they can operate outside any legal framework or they will not respond for those violations through other international means, including International Criminal Law, as argued by the ECtHR itself at § 143). This is what prompted Judge Chanturia to dissent with the majority on the matter and underscore how ‘case-law on the question of extraterritorial jurisdiction has significantly evolved since the [Banković decision]’, which he also labelled as a ‘lifeless’ precedent (223–27, § 7–14). 

Indeed, since Banković,case law concerning similar matters has begun to attribute jurisdiction to states over individuals outside state territory; in Issa and Others v Turkey, the ECtHR significantly argued in § 71 that ‘[a]ccountability […] stems from the fact 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’. Furthermore, in Al-Skeini and Others v the United Kingdomat § 136, the Court considered ‘State agent authority and control’ in an extraterritorial context as the ‘the exercise of physical power and control over the person in question’; in other words, acts of aggression, such as opening fire, entail that a state has authority and control over the direct outcomes of such actions, and the state therefore has jurisdiction over such human rights breaches. Similarly, in Andreou v Turkeyat § 82and Solomou and Others v Turkey at § 51, the Court assigned jurisdiction to Turkey for injuries resulted from a close-range shooting and suffered by the applicants in Cyprus, thus outside Turkish borders.

It now becomes the extent of the legal turnaround that the ECtHR took in Georgia v Russia (II), reversing a trend that had encouraged the complementarity between IHRL and IHL to protect basic human rights even during armed conflict. Judge Serghides, despite ultimately concurring with the majority on the matter, wittily phrased an interesting hypothetical (157, § 7):

‘Suppose that State X, a member of the Council of Europe, all of a sudden decides, for its own reasons, to launch ballistic missiles, targeting each and every one of the other forty-six member States of the Council of Europe. As a result, in each of these forty-six member States, thousands of people die and even more are injured and towns and villages are destroyed. The forty-six member States in question then lodge a joint inter-State application under Article 33 of the Convention against State X and the case comes before the Court. State X invokes the case of Banković […], and argues that the Court lacks jurisdiction because that State never had any control over the other forty-six States […]. Could State X argue that it did not breach its […] obligations […] and would the Court in such a case say that it did not have jurisdiction to ensure the observance of the […] obligations of State X?’ 

(Please note that Judge Serghides argued that the real breach of jurisdiction would exist under article 33 and not article 1, hence the wording of the above quotation and the decision of concurring with the majority).

This hypothetical appears to hold almost a rhetorical answer to it, and Georgia v Russia (II), by upholding the ‘lifeless’ Banković precedent, ultimately ignored the growing interplay and harmony between IHRL and IHL and decided against the rhetorical answer. It was truly a lost opportunity.

Alessandro Silvestri is a PhD Candidate in International Humanitarian Law at the University of Western Australia (‘UWA’), Perth. He also holds a Master of International Law with high distinction and a Master of International Relations with high distinction both from UWA, and a Bachelor degree in International Relations and Diplomatic Affairs at the University of Bologna (Italy), with a year spent abroad researching European Union Law at Maastricht University (Netherlands). His current research focuses on the role of civilians in armed conflict and the concept of ‘direct participation in hostilities’. He may be contacted at alessandro.silvestri@research.uwa.edu.au.

Suggested citation: Alessandro Silvestri, ‘Opportunity Lost: The ECtHR’s Restrictive Approach Re-ignites Vacuum between Human Rights and Humanitarian Law’ on ILA Reporter (13 April 2021) <http://ilareporter.org.au/2021/04/opportunity-lost-the-ecthrs-restrictive-approach-re-ignites-vacuum-between-human-rights-and-humanitarian-law-alessandro-silvestri/>