Between Two States: Adjudicating Human Rights Abuses in Occupied and Annexed Ukraine

Evan Harary

Vol. 41 Associate Editor

Russian incursion into Ukrainian territory—in the annexation of Crimea and the ongoing conflict between Ukraine and Russia-backed separatists in Donbass—has provided fertile ground for human rights abuses. Against the backdrop of armed conflict, monitors report an uptick in generalized violence against women, as well as instances of torture, forced labor, illegal detentions, and appropriation of property under threat of violence.[1] Victims of these abuses are now seeking justice in Ukrainian national forums and in the European Court of Justice (hereinafter “ECtHR”).[2] While Ukrainian forums have faced their own challenges in litigating cases arising from the conflict—namely a lack of resources and allegations of sham trials—the ECtHR faces thornier questions still. These questions are: how should it apply the European Convention on Human Rights (“ECHR”) in the context of ongoing inter-state conflict, where control over land and actors is unclear? And is it possible to hold Russia—whom many blame for the suffering in Donbass and Crimea—responsible for human rights abuses, without reaching an undesirable resolution to the larger issue of Russian and Ukrainian sovereignty over disputed territories? The answer to these questions depends on the ECrHR’s resolution of the interstate (as opposed to individual plaintiff) dispute of Ukraine v. Russia re Crimea, upon which the ECtHR has delayed the adjudication of individual cases.[3] In deciding in the interstate context whether Russia violated the European Charter of Human Rights in imposing Russian citizenship on Crimean residents, the ECtHR will decide the course of justice for thousands of individual plaintiffs.[4] The ECtHR reports that it has over 4,000 individual claims arising out of the Russia/Ukraine conflict pending before it.[5] Anecdotally, the state actor on the hook is clear in many instances. In the Ilyovaisk tragedy, for example, regular Russian troops killed a large number of Ukrainian troops as they retreated through a road that the parties designated as a humanitarian corridor.[6] But in other cases, tracing responsibility is murkier as a legal matter. What state can be held liable for the murder of four Pentecostal priests in Slavyansk, for example, controlled at the time by Russian-backed separatists, will likely depend in part on whether Russian jurisdiction can be proven over that area, which in turn depends on the degree of Russia’s actual control over that area and the perpetrators themselves.[7] And, while in many areas Russia has clear de facto control, holding Russia wholly responsible for abuses in this area is complicated by undisputed Ukrainian claims sovereignty over all Russia-occupied territory, claims that European courts are surely loath to disturb.[8] Perhaps as a consequence of this, the vast majority of human rights claims stemming from the Russia/Ukraine conflict have been lodged against Ukraine. Because of Ukraine’s recognized territorial claims, the route to compensation for claims against it is much surer in courts of law.[9] But the legal landscape could soon change based on the ECtHR’s analysis in Ukraine v. Russia re Crimea. To resolve this dispute, the ECtHR must navigate the vagaries of its own precedent, the likely political consequences of any impactful holding, and the implicit limits on its jurisdiction to decide issues of territorial sovereignty. With respect to precedent, the ECtHR will likely have to thread the needle between two prior rulings. In Loizidou v. Turkey, the court held that a nation could be held responsible for abuses occurring in territory over which it had control, regardless of whether it obtained that control lawfully.[10] The ECtHR in Ilasçu and Others v. Moldova and Russia, on the other hand, it found that occupied states have positive obligations over areas where they lack de facto control to 1) to take limited steps to re-establish control over that area and 2)  take steps to protect the rights of individuals in that territory against third party interference.[11] The former approach would seem to point to complete Russian liability for most claims, depending in Donbass on a finding of Russian control over the particular area in question. The latter approach would set the stage for a more fact-specific resolution to claims, where the court may hold Ukraine at least in part responsible for violations on its de jure territory if it finds that Ukraine failed to take adequate steps to secure the rights in question (it is unclear how the court might assess Ukraine’s steps to re-establish control over territory as Ukraine and Russian separatists remain at war). This resolution suggests the possibility of morally perverse outcomes in which Ukraine, an occupied state, may be held responsible for the abuses of groups operating in direct opposition to its national interests, in territory wholly beyond its control. But the flipside of this seemingly perverse outcome is that it assigns to the occupied state ongoing governmental responsibilities, thereby making more concrete the occupied states de jure claims to occupied territory.[12] Indeed, if the core purpose of government is to govern, to recognize a state’s obligations exercise governmental functions over a territory beyond its control would seem to fortify that state’s claims to sovereignty over that territory. Outside of the case law, any forceful ECtHR decision is sure to produce political shockwaves. Should the ECtHR produce a standard that holds Ukraine even in part responsible for human rights abuses in occupied and annexed territories, it may lose legitimacy as an organ and spur Ukrainian disillusionment with European institutions.[13] Should it find more expansive jurisdiction for Russia, it will surely draw Russian retribution, spoiling the tentative rapprochement between Russia and European leadership.[14] In arguments in Ukraine v. Russia re Crimea, Russian counsel has seized on this maze of political hazards, arguing that sovereignty disputes are “political” and therefore beyond the purview of the court.[15] To this point, a strict reading of the ECHR, which is aimed at protecting individual liberties, yields little room for decisions on far-reaching sovereignty disputes, which are more naturally the purview of the International Court of Justice.[16] But just because an issue contains political dimensions does not mean it is incapable of resolution in a forum for adjudicating human rights. The ICJ itself has held this.[17] And if the ECtHR has to make a finding with implications for sovereignty in order to ensure the individual rights, there is nothing in ECtHR jurisprudence or the ECHR itself to suggest it should not. Indeed, if the ECtHR refrains from reaching judgments in cases where there is a political dimension, it risks creating an informal exception to its jurisdiction in cases where an obstinate state is involved. And if it refrained from finding responsibility in any case where control over territory is not crystal-clear, it would wholly undermine the ECtHR’s ability to adjudicate claims arising from situation of armed conflict over territory. But for families whose loved ones have been imprisoned or killed, what is at stake is often compensation and a recognition of what happened to them—not the vindication of national interest. Indeed, survivors of abuse in the Donbass in many cases blame both Ukraine and Russia for what happened, citing Russian aggression and Ukrainian state callousness.[18] So, while the ECtHR may tread carefully in drawing the lines of its jurisdiction, it must remember that its foundational responsibility is providing justice to victims. The contours of any resolution must follow this fact, and seek to maximize the availability of paths to compensation for meritorious claims.

[1] Ukraine: Events of 2018, Human Rights Watch, https://www.hrw.org/world-report/2019/country-chapters/ukraine [2] Tetiana Kozak, Ukraine Accused of Racking Up Stats in Flawed Pursuit of Justice, Balkan Insight (October 22, 2019,) https://balkaninsight.com/2019/10/22/ukraine-accused-of-racking-up-stats-in-flawed-pursuit-of-justice/; European Court of Human Rights: Ukraine (January 2020). [3] RFE/RL’s Ukrainian Service, Russia, Ukraine Clash in Human Rights Court On Crimea, RadioFreeEurope, (September 12, 2019, 5:40 AM), https://www.rferl.org/a/russia-ukraine-crimea-human-rights-court-strasbourg/30160056.html. [4] Registrar of the Court, ECHR to adjourn some individual applications related to Eastern Ukraine, European Court of Human Rights (Sept. 11, 2019). [5] Vyachelsav Hnyatuk, As Ukraine’s Conflict Grinds On, Lawyers Take to the Frontline, Balkan Insight (October 21, 2019), https://balkaninsight.com/2019/10/21/as-ukraines-conflict-grinds-on-lawyers-take-to-the-frontline/. [6] Fourth Anniversary of the Ilyovask Tragedy Marked Today, Ukrinform (August 28, 2018, 10:30 AM), https://www.ukrinform.net/rubric-defense/2526638-fourth-anniversary-of-ilovaisk-tragedy-marked-today.html. [7] Scott Peterson, A Ukrainian murder mystery ensnares a church in former rebel stronghold, Christian Science Monitor (August 12, 204), https://www.csmonitor.com/World/Europe/2014/0812/A-Ukrainian-murder-mystery-ensnares-a-church-in-former-rebel-stronghold; James Crawford & Simon Olleson, The Nature and Forms of International Responsibility in International Law in International Law 441, 454 (M.D. Evans (ed.), 3rd ed., Oxford: Oxford University Press, 2010). [8] RFE/RL’s Ukraine Service, Mixed Reactions for Zelenskiy’s Eastern Ukraine Election Deal, RadioFreeEurope (October 2, 2019, 1:08 PM), http://iswresearch.blogspot.com/2019/08/russia-in-review-recasting-war-in.html; https://www.rferl.org/a/mixed-reactions-for-zelenskiy-s-election-deal-for-eastern-ukraine/30195496.html; Michael R. Pompeo, Secretary of State, Crimea is Ukraine (2019). [9] Balkan Insight, https://balkaninsight.com/2019/10/21/as-ukraines-conflict-grinds-on-lawyers-take-to-the-frontline/ (October 21, 2019). [10] App. No. 153118/89, 23 Eur. Comm’n H.R., ¶ 57 (1995). [11] 2004-VII, Eur. Ct. H.R. 179, 254. [12] Thomas D. Grant, Ukraine v. Russian Federation in Light of Ilaşcu: Two Short Points (May 22, 2014), https://www.ejiltalk.org/ukraine-v-russian-federation-in-light-of-ilascu-two-short-points/. [13] Stephen J. Hadley, It’s Time to Stand Up to Russia’s Aggression in Ukraine, Foreign Policy (January 18, 2019, 3:53 PM), https://foreignpolicy.com/2019/01/18/its-time-to-stand-up-to-russias-aggression-in-ukraine/. [14] Joana Plucinska, Poland warns EU countries against rapprochement with Russia, Reuters (August 8, 2019, 8:24 AM), https://www.reuters.com/article/us-poland-russia-ukraine/poland-warns-eu-countries-against-rapprochement-with-russia-idUSKCN1UY1JP. [15] RadioFreeEurope, https://www.rferl.org/a/russia-ukraine-crimea-human-rights-court-strasbourg/30160056.html, (September 12, 2019, 5:40 AM). [16] See generally European Convention on Human Rights. [17] Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgement of 24 May 1980, ICJ Reports 3, para. 37. [18] Balkan Insight, https://balkaninsight.com/2019/10/21/as-ukraines-conflict-grinds-on-lawyers-take-to-the-frontline/ (October 21, 2019). The views expressed in this post represent the views of the post’s author only.