Some Additional Comments on the ECtHR Crimea Judgment: Occupation, Sovereignty, and “Law”

Kanstantsin Dzehtsiarou’s wonderful submit comprehensively examines the European Courtroom’s judgment in Ukraine v. Russia re Crimea. On this submit, nonetheless, I wish to supply some further feedback on the judgment. My most important objective right here is to debate how the Courtroom approached the query of territorial sovereignty over Crimea and its standing as an occupied territory, however I may even briefly study another points as properly.

Within the Crimea deserves judgment, the Courtroom has utilized worldwide humanitarian regulation, specifically the regulation of belligerent occupation, to Russia’s management over Crimea. However, in considerably contorted and contradictory reasoning, the Courtroom took pains to keep away from holding that Ukraine, relatively than Russia, is the lawful sovereign of Crimea, as I’ll clarify. The Courtroom then drew substantial penalties from its discovering of occupation, particularly the conclusion that Russian regulation, as utilized in Crimea opposite to the principles of IHL, doesn’t qualify as “regulation” for the needs of the Conference. This meant that there was an computerized violation of all provisions of the Conference invoked by Ukraine requiring that an interference with a human rights was prescribed by regulation. Principally, beneath the Courtroom’s method each single restriction on human rights by Russia after the occupation began in 2014, even when it might in any other case be justified, will depend as a violation as a result of it transgresses the precept of legality. It is a very emphatic conclusion, and I’m removed from sure that it’s the proper one.

How an “Occupation” Grew to become an Occupation

In its 2020 admissibility choice (mentioned at size right here), the Courtroom averted ruling on the standing of Crimea, albeit with a level of ambiguity. First, in a single paragraph, the Courtroom mentioned that the sovereignty query was not squarely earlier than it:

Having regard to the events’ written submissions, the Courtroom considers that it isn’t known as upon to determine within the summary on the “legality” of the Russian Federation’s purported “invasion” and “occupation” of Crimea apart from by reference to the principles contained within the Conference. Nor are the applicant Authorities in search of a ruling from the Courtroom on the legality per se beneath worldwide regulation of the “annexation of Crimea” and, accordingly, of its consequent authorized standing thereafter. These issues weren’t referred to the Courtroom and don’t due to this fact represent the subject material of the dispute earlier than it. Accordingly, they’re exterior the scope of the case and won’t be instantly thought of by the Courtroom. An identical method was taken by the ICJ within the judgment in Utility of the Worldwide Conference for the Suppression of the Financing of Terrorism and of the Worldwide Conference on the Elimination of All Types of Racial Discrimination (Ukraine v. the Russian Federation), Preliminary Objections (8 November 2019, at p. 21, § 29 – see paragraph 223 above), through which it declared admissible the criticism introduced by the Authorities of Ukraine towards the Russian Federation of a sample of discrimination towards Crimean Tatars and ethnic Ukrainians in Crimea opposite to the Worldwide Conference on the Elimination of All Types of Racial Discrimination. In its 21 February 2020 Award (regarding the Preliminary Objections of the Russian Federation in respect of the Dispute regarding Coastal State Rights within the Black Sea, Sea of Azov, and Kerch Strait between Ukraine and the Russian Federation, PCA Case No. 2017-06, §§ 195 and 197) the Arbitral Tribunal constituted beneath Annex VII to the 1982 United Nations Conference on the Legislation of the Sea (“UNCLOS”), contemplating its jurisdiction beneath Article 288 § 1 of UNCLOS “over any dispute regarding the interpretation or utility of this Conference”, held that “the Events’ dispute concerning sovereignty over Crimea will not be a minor concern ancillary to the dispute regarding the interpretation or utility of the Conference. Quite the opposite, the query of sovereignty is a prerequisite to the Arbitral Tribunal’s choice on a variety of claims submitted by Ukraine beneath the Conference. These claims merely can’t be addressed with out deciding which State is sovereign over Crimea …” As a consequence, the Tribunal concluded that “it lacks jurisdiction over the dispute as submitted by Ukraine to the extent {that a} ruling of the Arbitral Tribunal on the deserves of Ukraine’s claims essentially requires it to determine, expressly or implicitly, on the sovereignty of both Social gathering over Crimea. In consequence, the Arbitral Tribunal can not rule on any claims of Ukraine offered in its Notification and Assertion of Declare and its Memorial that are depending on the premise of Ukraine being sovereign over Crimea.”

However then, later within the choice (paras. 348-349), coping with the query of Article 1 ECHR jurisdiction, the Courtroom gave the impression to be saying that Ukraine’s sovereignty over Crimea was intact (see my prior submit for a extra detailed dialogue). That mentioned, all through the choice the Courtroom made no discovering as as to whether Crimea was occupied within the IHL sense of the phrase. In truth, it repeatedly used scare quotes across the phrase “occupation” (e.g. paras. 32, 53, 107, 244, 392, 413, 429, 463). (And did the identical with “invasion.”)

Within the deserves judgment, nonetheless, there’s a main tonal shift, and in addition a considerable authorized one. The “occupation” turned an occupation, whereas the Accession Treaty by means of which Crimea purported to affix the Russian Federation turned the “Accession Treaty” (e.g. paras. 864, 920, 921, 922, 944). The strategic use of citation marks apart, the Courtroom framed its authorized evaluation of this concern by reaffirming the view that the Conference can’t be utilized in a vacuum and that it will probably interpret and apply the Conference whereas taking into consideration the related guidelines of IHL (paras. 912-917). However then it mentioned this:

In these circumstances, the Courtroom considers that the factual foundation on which the respondent State obtained extraterritorial jurisdiction and continued to train it all through the related interval(s) on the premise of “efficient management” over Crimea, militate in favour of taking account of the related provisions of IHL when deciphering the Conference rights in concern on this case, as supplied for by Article 31 § 3 (c) of the Vienna Conference. The Courtroom notes that the OHCHR and a variety of NGOs (Human Rights Watch and Amnesty Worldwide), in addition to the Workplace of the Prosecutor on the Worldwide Legal Courtroom, on whose stories the Courtroom positioned some reliance in its admissibility choice, expressed the view that sure practices of the respondent State amounted to violations of IHL and, because the Workplace of the Prosecutor on the ICC said (quoted at paragraph 224 of the admissibility choice), “that the scenario throughout the territory of Crimea and Sevastopol factually quantities to an ongoing state of occupation”. The Courtroom will due to this fact contemplate the principles of IHL, in as far as relied on by the applicant Authorities, when contemplating the compatibility of an alleged administrative follow with the Conference proper(s) in query. In so doing it is going to observe the methodology utilized in Georgia v. Russia (II) (cited above, § 95) and in Ukraine and the Netherlands v. Russia (cited above, §§ 718-21), in response to which:

“95.  Within the current case the Courtroom will thus study the interrelation between the 2 authorized regimes with regard to every side of the case and every Conference Article alleged to have been breached. In doing so, it is going to verify every time whether or not there’s a battle between the provisions of the Conference and the principles of worldwide humanitarian regulation.”

The above method is restricted to the interpretation and utility of the Conference in as far as vital within the circumstances of the current case. It underlines the mandatory interaction between IHL and the Conference, as two worldwide authorized regimes related to the case. It has no bearing on the problems pertaining to Crimea’s standing beneath worldwide regulation, which, as said in paragraph 244 of the admissibility choice “are exterior the scope of the case”.

These two paragraphs have to be learn rigorously. In para. 918, the Courtroom appears to be holding that Crimea is an occupied territory with out actually saying so, relying as a substitute on the views of the OHCHR, human rights NGOs and the ICC OTP to the impact that Crimea is occupied. All these actors mentioned that Crimea is occupied, and due to this fact the Courtroom ought to deal with Crimea as occupied, is what this boils right down to.

That is simply weird. What occurred to jura novit curia? Whether or not Crimea is occupied or not is an goal authorized query that was for the Courtroom to find out, by the way, to the extent it wanted to in making use of the Conference. And that query relies upon, in flip, on whether or not Crimea is Russian or Ukrainian sovereign territory, as a result of a state by definition can not occupy its personal territory. It doesn’t rely upon whether or not any exterior observer thinks there may be an occupation. There can merely be no willpower of occupation with out announcing on sovereignty in somehow. However the Courtroom doesn’t wish to try this (I’m reminded right here of the ambiguous method of Israeli courts to the applicability of the regulation of occupation to Palestinian territories, even when these instances are very totally different). Not solely does the Courtroom not wish to say right here that Crimea is Ukrainian territory, in para. 919 it has a fair stranger disclaimer that its choice has no bearing on Crimea’s standing beneath worldwide regulation – which, once more, is simply not true, as a result of Crimea’s standing beneath IHL relies upon fully on its standing beneath basic worldwide regulation.

What are we to make of this? It appears to me that the Courtroom needed to use the regulation of occupation with out sending a sign to all ECHR member states that questions of territorial sovereignty (and others of comparable authorized and political weight) can by the way fall inside its jurisdiction. Which, after all, they will. Plus there was, I think about, a necessity to keep up consensus among the many judges of the Grand Chamber – and so we now have this considerably twisted discovering, which fortunately doesn’t depart from the objectively appropriate authorized place that Crimea certainly is occupied as a result of the sovereign title over the territory stays with Ukraine, as Russia’s purported annexation was devoid of any authorized impact internationally.

On Legislation and “Legislation”

This brings me to the main authorized consequence that the Courtroom drew from making use of the regulation of occupation. Wanting on the information of all the violations alleged and established on this case, there gave the impression to be little sensible want to use the regulation of occupation within the first place, though the Courtroom does so faithfully. That is just because the related IHL guidelines are absolutely aligned with Conference requirements that apply in instances of normalcy (e.g. on truthful trials, suppression of the free press, or enforced disappearances). In different phrases, making use of IHL on the information of this case made little substantial distinction (the identical doesn’t apply to different pending instances coping with the warfare in Ukraine). However there may be one – huge – exception up to now.

At para. 920 et seq of the judgment, the Courtroom identifies a basic query of “lawfulness” that permeates the entire case. Whereas distinguishing prior case regulation coping with the legal guidelines of unrecognized territorial entities, the Courtroom held at para. 933 that it ‘has been known as upon to find out whether or not the regulation of the Russian Federation, which served as a authorized foundation for the measures complained of, taken whereas the Russian Federation exercised extra-territorial jurisdiction over Crimea on account of efficient management, might be considered “regulation” throughout the which means of the related provisions of the Conference.’ The Courtroom then cites the related guidelines of the Hague Laws and the Fourth Geneva Conference that prohibit an occupying energy from altering the authorized system of the occupied territory or from altering the standing of public officers or judges within the occupied territory. It finds that there have been no causes that might justify the imposition of Russian regulation in Crimea as a matter of IHL, and concludes as follows:

In such circumstances, the Courtroom considers that, when the respondent State prolonged the appliance of its regulation to Crimea, it did so in contravention of the Conference, as interpreted within the gentle of IHL. Accordingly, Russian regulation can’t be considered “regulation” throughout the which means of the Conference and any administrative follow primarily based on that regulation can’t be considered “lawful” or “in accordance with the regulation”. The consequential results of this conclusion shall be outlined in additional element under and to the extent vital in relation to every alleged violation, together with the Article 6 criticism that the “courtroom system” working in Crimea through the interval into consideration couldn’t be considered “established by regulation”.

The extension of Russian regulation to Crimea – undoubtedly a violation of IHL – thus turns into a violation of the Conference as interpreted within the gentle of IHL. All through the judgment, the Courtroom then finds violations of assorted rights, together with the proper to a good trial, the freedom of particular person, freedom of expression and privateness, on the premise that the interference failed the legality check for a justified limitation. For all (or nearly all) violations, the Courtroom additionally goes into substantive questions of official intention, necessity and proportionality, and finds violations on these bases as properly. However the backside line of the Courtroom’s method is that Russian regulation in Crimea will not be sufficiently “regulation” for human rights functions, and that limitations on human rights on the premise of this regulation can by no means be justified.

That is a very robust discovering. It signifies that each single time Russian courts and different authorities had acted in Crimea in a manner that interfered with human rights there was ipso facto a violation of human rights, as a result of these authorities weren’t performing lawfully. So, for instance, if Russian authorities arrested and tried a typical drug trafficker, rapist, thief or assassin in Crimea, gave them a very truthful trial, there have been no political parts in anyway to the case, not one of the stuff at concern earlier than the European Courtroom, there would nonetheless be a violation of human rights as a result of the legality check was not met. Put otherwise, making use of the Courtroom’s method to what “regulation” is, each single particular person in a Crimean jail at this time could be a sufferer of a human rights violation, as a result of they haven’t been detained or tried in accordance with the “regulation.”

The Conference not applies to Russia, after all, however the Worldwide Covenant on Civil and Political Rights does. Have been the Human Rights Committee to undertake this reasoning, for instance, each single factor Russian authorities have carried out in Crimea since 2014 would violate the ICCPR, irrespective of how in any other case justified. Each arrest, each trial, each search ipso facto fails the legality check. Or, to provide one other instance, each single utility of Israeli regulation in occupied territories in breach of Article 43 of the Hague Laws or Article 64 of the Fourth Geneva Conference – e.g. to detain and prosecute a settler within the West Financial institution who murdered a Palestinian – could be a violation of the human rights of the settler, as a result of she or he would have been detained and tried unlawfully. The identical clearly goes for the appliance of Israeli regulation in territories that it has unlawfully annexed, corresponding to East Jerusalem or the Golan Heights.

It is a place that’s so sweeping that I can’t see the way it might probably be appropriate. Once more, there is no such thing as a doubt that there’s a violation of IHL in these circumstances. Nonetheless, the related guidelines of IHL are there not simply to guard the pursuits of the inhabitants of an occupied territory, but in addition these of the displaced sovereign. It isn’t clear to me how violations of IHL in such instances robotically get transmuted into human rights violations. That the Conference or different human rights treaties ought to be interpreted in gentle of IHL doesn’t logically entail that each IHL violation is a human rights violation.

Simply to reiterate – the Courtroom would have discovered all (or nearly all) of the violations it discovered on this case even when it had not adopted this explicit method, and I’m completely content material with that. I’m due to this fact much more perplexed as to why this method to what “regulation” is was even wanted. However possibly I’ve missed one thing right here.

Now, another, much less detailed feedback.

A Couple of Different Feedback

First, it’s outstanding how intensive the judgment is. The judgment is nearly 350 pages, with a substantive annex that varieties an integral a part of the judgment at some 400 pages. That is partly due to the extremely broad scope of the case, and partly as a result of it’s fact-intensive. The Courtroom should be counseled for having the ability to produce a judgment like this, though states haven’t given it the substantial further assets it must take care of this sort of litigation.

Second, the Courtroom was not solely unanimous in its conclusions, however there are not any separate opinions connected to the judgment in any respect. That is simply extraordinary within the Courtroom’s follow, particularly in a Grand Chamber case of this scope and significance, and will need to have been the results of a concerted effort to undertaking a unified entrance (and the top result’s essentially a compromise).

Third, in the case of the Courtroom’s method to fact-finding, a lot of the judgment basically depends on the stories of assorted unbiased our bodies, such because the OHCHR or human rights NGOs, after which attracts an hostile inference from Russia’s failure to seem earlier than the Courtroom on the deserves stage and supply adequate proof in rebuttal. See, for instance, how the Courtroom offers with enforced disappearances as violations of the proper to life (at paras. 964-974), arbitrary searches of personal homes (at paras. 1044-1047), or arbitrary interferences with freedom of expression (at paras. 1089-1097).

This method permits the Courtroom to make factual findings extra simply than it will have had Russia actively participated on the deserves stage, and extra simply than different worldwide tribunals the place a authorized responsibility of cooperation doesn’t exist. Certainly, when setting out its basic method to proof, the Courtroom says that:

With a view to clarifying, inter alia, the factual background of utility no. 38334/18, a letter was despatched by the Courtroom on 2 July 2021 inviting the respondent Authorities to supply, within the context of their memorials (see paragraph 14 above), copies of the related case recordsdata pertaining to the individuals talked about within the utility type submitted by the applicant Authorities. Nonetheless, the respondent Authorities submitted no materials in anyway in response to the Courtroom’s specific request. The Courtroom observes that the evidential materials sought was undoubtedly throughout the possession of the respondent State, which, furthermore, within the particular circumstances of this utility, was most probably the one entity able to supply it in a complete method.
The Courtroom additional notes that for the reason that submission of the written memorial of 28 February 2022, the respondent Authorities has remained silent. They neither responded to the Courtroom’s letters or particular requests for paperwork (corresponding to copies of the statutory legal guidelines and different authorized acts referred to of their memorial), nor did they submit any evidential materials or further observations, however the truth that their consideration was drawn, on two events, to Rule 44C of the Guidelines of Courtroom cited above (see paragraphs 846 and 847 above, for the rules, and in addition paragraphs 19 and 21 for the steps taken by the Courtroom). Moreover, regardless of having been notified in good time, they didn’t take part within the listening to held on 13 December 2023 that supplied an additional alternative to argue the case. They supplied no cause for his or her failure to take action. This doesn’t symbolize a constructive engagement with the proceedings for the examination of the case as required beneath Article 38 of the Conference (see paragraphs 906 et seq.) and the Courtroom will draw all of the inferences that it deems related and mix such inferences with contextual elements (see, mutatis mutandis, Ukraine and the Netherlands v. Russia (dec.) [GC], cited above, §§ 438 and 459, through which case the respondent did take part on the admissibility stage, however did so inadequately).
Moreover, the Courtroom is conscious that the navy assaults by the respondent State on Ukraine have been on-going all through. On a variety of events the applicant Authorities submitted that the assaults significantly affected their capability to take part successfully within the proceedings earlier than the Courtroom, concerning each their written and oral pleadings, in addition to in relation to their capability to collect the related proof. The Courtroom will make allowance for this, however must be happy on the premise of the accessible proof that the claims are well-founded the truth is and in regulation.
One other aspect to be taken into consideration is the persevering with denial of entry to Crimea by the respondent State (not less than because it assumed efficient management) to officers of the applicant Authorities and/or to unbiased screens, a matter already referred to within the admissibility choice (see Ukraine v. Russia (re Crimea), cited above, §§ 389-90). The respondent Authorities didn’t interact with the applicant Authorities’s arguments of their memorial that such a denial of entry had precipitated and continued to trigger appreciable sensible difficulties related to the gathering of related proof.

The Courtroom subsequently finds that Russia did not adjust to its responsibility of cooperation beneath Article 38 of the Conference (paras. 906-909). Backside line, have been this not a case between Ukraine and Russia, the Courtroom’s fact-finding activity would have been much more troublesome and the applicant wouldn’t essentially have prevailed so comprehensively.

Lastly, this brings me to at least one particular level within the case that actually requires a deeper exploration. At paras. 1176 et seq of the judgment, the Courtroom finds with some ease that Russia violated quite a few rights of the Crimean Tatars, and did so on a discriminatory foundation. Specifically:

The Courtroom has already established that the evidential materials accessible on the admissibility stage supplied a adequate prima facie foundation for the alleged administrative follow beneath this head. Within the gentle of the extra proof adduced at the moment stage of the proceedings, which additional strengthens the applicant Authorities’s allegations, the burden of proof to rebut the presumption of discrimination has shifted to the respondent Authorities (see paragraphs 846 and 1181 above).
For his or her half, the respondent Authorities submitted sure figures concerning prosecutions in 2014 and 2015 of various ethnic teams in Crimea for critical and minor offences. As well as, they referred to the discontinuation of the legal investigation of three Crimean Tatars in relation to a single occasion of January 2015 (see paragraphs 1179 and 1180 above).
The Courtroom takes word of that materials, however observes that the respondent Authorities have supplied no details about the supply of these statistics and the methodology utilized within the technique of amassing them, nor have they offered any proof which might permit the Courtroom to evaluate their veracity and reliability (see paragraph 1163 above). In any occasion, the Courtroom notes that this data involved just one side of the applicant Authorities’s allegations of discrimination, specifically the disproportionate prosecution of Crimean Tatars. The respondent Authorities didn’t interact with any of the opposite points of the case beneath this head. Nor did they submit any proof to disprove the applicant Authorities’s allegations of discrimination which the latter had supported with credible proof (see paragraphs 988 and 989 above). They haven’t supplied the Courtroom with any cause why the above proof can not serve to corroborate the allegations made by the applicant Authorities. As well as, they haven’t supplied any, not to mention a passable or convincing, rationalization to determine that the distinction in therapy complained of had been objectively and fairly justified by reference to a official intention. Equally, no credible or substantiated rationalization has been given by the respondent Authorities to rebut the presumption of duty on the a part of their authorities (or of these beneath their management) to account for the acts complained of.
In view of the above, the Courtroom concludes that there was an administrative follow concentrating on Crimean Tatars, in violation of Article 14 of the Conference, taken together with Articles 8, 9, 10, 11 of the Conference and Article 2 of Protocol No. 4.

What’s particularly fascinating right here is that the Courtroom makes no reference in any respect to the deserves judgment of the ICJ within the CERD Ukraine v. Russia case, through which the ICJ couldn’t set up racial discrimination towards the Tatars, as a result of Ukraine’s proof was not sufficiently convincing. Once more, evaluating these two instances requires extra cautious examine, however my sense is that the end result is explainable by the totally different method to proof – specifically, the European Courtroom’s discovering that Russia refused to adjust to its responsibility to furnish it with all vital amenities, which doesn’t exist earlier than the ICJ, Russia’s refusal to have interaction with Ukraine’s arguments, and the reversal of the burden of proof. One other level to probably contemplate is the excellence between racial discrimination and group identity-based discrimination simpliciter.

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