•  
  •  
 

Abstract

Georgia v Russia (II) represents an important decision in the European Court of Human Rights case law. The Court sets out an important interpretation of Article 1 of the European Convention on Human Rights regarding the jurisdiction of signatory parties during times of invasion and war. The Court articulated that during active hostilities, there is no positive or negative obligation on the invading country to uphold or defend the human rights of the civilians of the invaded country. This is because they do not have effective control over the local population due to the dynamic nature of war. This precedent is very dangerous when applied to the current crisis in Ukraine. Following the Court's logic, because Ukraine is in an active state of war with Russia, the Russian government potentially would not be liable for human rights violations because they do not have "effective control" over the captured Ukrainian territory. If the human rights violations were to be presented before the Court, the Court could find this because of their holding in Georgia v Russia (II) that war is constantly changing the territory controlled by either side of the conflict. However, when examining the facts of the current invasion, there are three key differences between the facts in Georgia v Russia (II) and the current invasion that could lead to a different outcome in the case of the Ukraine conflict.

First, Russia has implemented a stronger political apparatus in Ukraine than they did in Georgia by actively installing Russian "mayors" and "regional administrative councils" in captured territories. These mayors and administrative councils place Ukrainian citizens under Russia's administrative control, satisfying the effective control test to determine jurisdiction. Second, looking at the Court's 2008 case of Solomou and Others v. Turkey, the Court outlined a cause-and-effect analysis for determining effective control over a population by examining the cause and effect of military intervention between two signatories to the European Charter of Human Rights. Because there has been widespread Russian military action leading to a direct effect on Ukrainian citizens and their human rights, Russia can be seen as to be exerting "effective control" over Ukraine. The administrative move in the four regions bordering Russia to annex them through a referendum vote directly places those Ukrainian citizens under Russian administrative control. This annexation means that Russia would incur all obligations, both positive and negative, to uphold human rights in those regions because they are now "Russian territory" (notwithstanding the claims of a sham referendum vote and reports of coercion and extortion to secure the vote in favor of joining Russia). Lastly, determining whether Belarus would fall under Russian effective control, and if they can be held accountable, would require a full detailed factual finding mission, which likely will not happen until the war is over.

First Page

205

Download

Share

COinS