In a judgment on the interstate case of Georgia v. Russia (II), released on January 21, the European Court of Human Rights (ECHR) asserted that since August 12, 2008, Russia has exercised continued “effective control” over Tskhinvali Region/South Ossetia and Abkhazia. The Court also held Russia responsible for the breach of six articles of the European Convention of Human Rights (ECHR), as well as for failure to conduct an effective investigation into the alleged breach of the right to life, in the aftermath of the Russo-Georgian War of August 2008.
The “historic decision” was celebrated in Georgia both by the officials and the opposition as a major win for the country, and the significance of the landmark ruling was also stressed by Tbilisi’s international partners.
Three Georgian legal experts, who professionally contributed to the appeal at different times, spoke with Civil.ge about the significance of the judgment. Each spoke about a distinct aspect of the ruling, that they find most important.
Levan Meskhoradze represented Georgia in the Court proceedings in 2008-2016. He says the ruling established the legal fact of occupation of the Georgian territories by referring to “effective control” by Russia. Now that this fact has been legally established, it cannot be appealed, Meskhoradze says. He also finds it significant that even though the appeal focused on the 2008 war, and therefore mostly dealt with events in and around the Tskhinvali region/South Ossetia, the ruling nonetheless applied the notion of continued effective control to Abkhazia as well.
According to Meskhoradze, the Court said the grave violations of the Convention were an administrative practice of continuous nature, rather than isolated cases. This means that Russia’s policy, rather than isolated acts, was in contravention of the ECHR.
Another important part of the judgment, the lawyer says, is that the ECHR examined the right of return of the displaced persons within the context of the freedom of movement, holding that Russia has been, at least as of 2018, preventing the return of the displaced persons to their homes.
Tamar Tomashvili, Professor of International Law at the Free University of Tbilisi, says that, aside from legally confirming the fact of Russian occupation, the Court’s judgment is particularly important in recognizing and qualifying the suffering of the victims as being in violation of the Convention. Now that the nature of the 2008 events is legally assessed, the legal road is open for seeking individual remedies for these violations, says Professor Tomashvili.
Tina Burjaliani, who co-authored the initial application on interim measures in 2008 and later the appeal filed in 2009, says that this judgment is an important legal victory for Georgia and can be used by politicians and diplomats to strengthen Georgia’s efforts of de-occupation and return of the internally displaced persons (IDPs). Aside from holding Russia responsible for various human rights violations, Ms. Burjaliani says that the judgment gives a comprehensive legal assessment of the occupation and stresses the continued obligation of Russia to ensure the return of the expelled civilian population.
Why did the court refuse to discuss the “active phase of hostilities”?
The Court declared inadmissible the part of Georgia’s application which claimed that Russia was legally responsible for the acts committed on 8-12 August, during the “active phase of the hostilities.” The Russian Ministry of Justice promptly painted it as Moscow’s success claiming that “the ECHR did not confirm any single case of violation by the Russian servicemen of the civilian population’s rights during the events of August 2008.” We asked our experts about these claims.
But first, let’s read the judgment. The ECHR established Russia’s effective control over the territories since August 12, 2008, but stated that during the active phase of hostilities – from 8 to 12 August 2008 – Russia could not be considered as exercising “effective control.” The control was apparently contested through military means, the Court’s argument goes, and in this sense, Georgia’s argument that Moscow was legally responsible for violations of ECHR is inadmissible.
All our experts agree, that in doing so, the Court avoided the topic altogether since it is controversial legally and highly sensitive politically.
Burjaliani says the ECHR did not dwell on the substance of alleged violations committed during the war. Instead, it argued that the Court had no mandate to assess “acts of war and active hostilities in the context of an international armed conflict outside the territory of a respondent State,” since these matters are predominantly regulated by another branch of law International Humanitarian Law (IHL) – and since it is difficult for the Court to establish facts due to the “magnitude of evidence produced” in such situations.
Meskhoradze agrees that the ECHR judgment does not exclude Russia’s responsibility regarding the violations committed during the active phase of the conflict, neither does it mean that Georgia failed to establish the violations or that such violations did not take place. The Court simply did not discuss the case from this point of view.
He says Georgia did try to prove Russia’s responsibility with regard to the violations committed between August 8 and 12, but the Court chose to stick to the precedent which it had developed since Banković and Others v Belgium and Others, a case that was trying to establish the responsibility of the NATO air forces in a bombing incident in Belgrade during the 1999 NATO intervention.
Meskhoradze explains that Georgia was hoping for the practice established by Banković et al. case to be reversed, but the Court said it was not yet ready for such change. Tomashvili agrees that overturning Banković was partly expected in academic circles as well, citing differences in Georgia’s case compared to the earlier jurisprudence. Unlike the Banković, Tomashvili said both Russia and Georgia are contracting parties of the ECHR. The second difference is that the hostilities this time were not limited to the air shelling but included the invasion phase as well, since the Russian army had already entered parts of the Georgian territory. Though it may not be sufficient to amount to what they call “effective control,” the capacity to aim from the aircraft or artillery grants the ability to produce an impact in terms of victims, Tomashvili argues, and that is why there was an expectation that the Court would define the hostilities differently this time.
According to Professor Tomashvili, the Court chose to uphold its earlier practice also because otherwise, it would have to assess a huge amount of evidence and establish a specific legal test for examination of similar cases. This is a very sensitive issue, she said, as many other potential interstate appeals are in line: e.g., Ukraine v. Russia or Armenia v. Azerbaijan. Overturning the Banković et al for an inter-state claim would have set a precedent with respect to the Court’s jurisdiction on specific types of upcoming cases.
This would have sparked more interstate appeals and make the Court assess violations during the active phase of hostilities in the future, she argues, moving the ECHR into the area of the International Humanitarian Law to expand the human rights standards in this context – none of which the Court wants.
As for Russia’s claim that “the ECHR did not confirm any single case of violation by the Russian servicemen of the civilian population’s rights during the events of August 2008,” Tomashvili says it is beyond Court’s jurisdiction to identify individual violations committed by Russian civil servants or military officials – as this is something that has to be tried by the International Criminal Court (ICC).
The experts still point out that, despite the Court’s denial to assess the violations during the active phase of hostilities, the judgment still gave Russia the obligation to investigate the violations committed during this phase.
Impact on Other International Disputes
The judgment has also sparked a debate in Georgia whether the legal decision could influence the country’s other interstate disputes with Russia. In 2016, the Prosecutor of the International Criminal Court (ICC), the international tribunal sitting in The Hague, Netherlands, has launched an investigation into alleged crimes against humanity and war crimes committed in the context of an international armed conflict between 1 July and 10 October 2008 in and around Tskhinvali. Unlike the ECHR, the ICC is mandated to investigate and try individuals rather than states for “the gravest crimes of concern to the international community.”
The Public Defender of Georgia said the judgment will affect the process at the Office of the Prosecutor of the ICC, particularly in the part of the torture of Georgian war prisoners. The judgment held that there had been an administrative practice contrary to Article 3 (prohibition of torture) as regards the acts of torture of which the Georgian prisoners of war had been victims, and the Georgian prisoners of war detained in Tskhinvali between 8 and 17 August 2008 by the S. Ossetian forces had fallen within the Russian legal responsibility for the purposes of the Convention.
Now it has to be a key task of the ICC to identify high-ranking perpetrators of these crimes and hold them individually responsible, the Ombudsperson’s Office added.
Legal experts share Public Defender’s optimism. Burjaliani believes that the judgment will be read by the ICC. “It is important that the ECHR established Russia’s liability for expulsion and denial of the return of Georgian population. This matter is subject to investigation of the Office of the Prosecutor [ICC] and I hope we will see the criminal charges brought not only against [South] Ossetian de facto officials but also against Russian military commanders,” she says.
Tomashvili is also hopeful, saying that the ICC is investigating many issues related to ethnic cleansing, and the ECHR judgment held that the violations were mostly perpetrated under Russia’s occupation. Should there be no individual cases with evidence that a Russian has perpetrated the act, at least it may help the ICC establish the responsibility for the inaction concerning the ethnic cleansing, Tomashvili noted.
Professor Tomashvili spoke about the prospects of using the new judgment to renew the dispute at the International Court of Justice (ICJ), the principal judicial organ of the United Nations also seated in The Hague. Georgia appealed against Russia before the ICJ in 2008 for violations related to ethnic cleansing under the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (CERD). In 2011, the ICJ found Georgia’s claim inadmissible saying Georgia did not exhaust the precondition of the bilateral negotiations as foreseen by CERD.
Ms. Tomashvili believes that to be able to go back to the ICJ, it is essential to meet this precondition and first launch bilateral talks with Russia, where the recent judgment can also be used to pressure Russia into admitting the violations. Should Russia fail to admit the breaches, Georgia can then bring the claim back to the ICJ and again use the judgment to demonstrate that the violations have been established by the ECHR. It is also important that types of violations have been split among the jurisdictions of different courts – Ms. Tomashvili argued – this is why no discrimination clause has been invoked in the ECHR appeal. Thus, Russia will be unable to claim that another Court has already addressed the violations in question, she concluded.
All experts agree that the judgment opens a wide field that the Georgian officials have to cover both legally and politically. Burjaliani explains that the Grand Chamber judgment has now resolved the matter of liability and that the Court will examine and decide on the just satisfaction later.
The Court has the power under Article 41 of the ECHR to award “just satisfaction” – intended to compensate applicants who have suffered violations of their Convention rights for pecuniary or non-pecuniary damage. Georgia has requested just satisfaction for the violations, including Convention-compliant investigations, remedial measures, and compensation to the injured parties, Burjaliani said.
Nobody has the illusion that Russia will conscientiously enforce the judgment, Meskhoradze says, stressing that active work is now needed at the Committee of Ministers, a supervisory body within the Council of Europe (CoE), to use the leverage that the judgment presents.
The Committee of Ministers will be supervising steps taken by Russia to remedy the violations and for conducting an effective investigation. In this respect, Meskhoradze notes that, where possible, the pre-war status quo must be restored. Where it is not – the violations have to cease and the remedial measures for violations have to be sought for respective victims, he added.
Tomashvili points at the importance of using the judgment to push to officially qualify Russian presence in the two regions as “occupation” and establish it as a term to be used in the United Nations bodies. She says currently the UN bodies do not yet refer to Abkhazia and Tskhinvali region in their reports and recommendations as occupied territories. The ECHR judgment could be used to change that, she argues, as it gave the legal assessment.
As for the further steps, Tomashvili says that the Georgian Ministry of Foreign Affairs now has to remind every state that the judgment confirmed the occupation of these territories. There is an approach in international law that does not allow recognition of a territorial entity that emerged in violation of international law. In this sense, the judgment is crucial, as it says that the entities have been illegally occupied as a result of an invasion, Tomashvili argues.
The new judgment presents many opportunities for Georgia to reassert and defend its positions globally, including in terms of the non-recognition policy. The impact it will have now depends on the hard work that is still ahead for Georgian officials and public servants.