Kanstantsin Dzehtsiarou’s excellent post comprehensively examines the European Court’s judgment in Ukraine v. Russia re Crimea. In this post, however, I want to offer some additional comments on the judgment. My main purpose here is to discuss how the Court approached the question of territorial sovereignty over Crimea and its status as an occupied territory, but I will also briefly examine some other issues as well.
In the Crimea merits judgment, the Court has applied international humanitarian law, in particular the law of belligerent occupation, to Russia’s control over Crimea. But, in somewhat contorted and contradictory reasoning, the Court took pains to avoid holding that Ukraine, rather than Russia, is the lawful sovereign of Crimea, as I will explain. The Court then drew substantial consequences from its finding of occupation, specifically the conclusion that Russian law, as applied in Crimea contrary to the rules of IHL, does not qualify as “law” for the purposes of the Convention. This meant that there was an automatic violation of all provisions of the Convention invoked by Ukraine requiring that an interference with a human rights was prescribed by law. Basically, under the Court’s approach every single restriction on human rights by Russia after the occupation started in 2014, even if it could otherwise be justified, will count as a violation because it transgresses the principle of legality. This is a very emphatic conclusion, and I am far from certain that it is the right one.
How an “Occupation” Became an Occupation
In its 2020 admissibility decision (discussed at length here), the Court avoided ruling on the status of Crimea, albeit with a degree of ambiguity. First, in one paragraph, the Court said that the sovereignty question was not squarely before it:
- Having regard to the parties’ written submissions, the Court considers that it is not called upon to decide in the abstract on the “legality” of the Russian Federation’s purported “invasion” and “occupation” of Crimea other than by reference to the rules contained in the Convention. Nor are the applicant Government seeking a ruling from the Court on the legality per se under international law of the “annexation of Crimea” and, accordingly, of its consequent legal status thereafter. These matters were not referred to the Court and do not therefore constitute the subject matter of the dispute before it. Accordingly, they are outside the scope of the case and will not be directly considered by the Court. A similar approach was taken by the ICJ in the judgment in Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. the Russian Federation), Preliminary Objections (8 November 2019, at p. 21, § 29 – see paragraph 223 above), in which it declared admissible the complaint brought by the Government of Ukraine against the Russian Federation of a pattern of discrimination against Crimean Tatars and ethnic Ukrainians in Crimea contrary to the International Convention on the Elimination of All Forms of Racial Discrimination. In its 21 February 2020 Award (concerning the Preliminary Objections of the Russian Federation in respect of the Dispute concerning Coastal State Rights in 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 under Annex VII to the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), considering its jurisdiction under Article 288 § 1 of UNCLOS “over any dispute concerning the interpretation or application of this Convention”, held that “the Parties’ dispute regarding sovereignty over Crimea is not a minor issue ancillary to the dispute concerning the interpretation or application of the Convention. On the contrary, the question of sovereignty is a prerequisite to the Arbitral Tribunal’s decision on a number of claims submitted by Ukraine under the Convention. Those claims simply cannot be addressed without 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 merits of Ukraine’s claims necessarily requires it to decide, expressly or implicitly, on the sovereignty of either Party over Crimea. As a result, the Arbitral Tribunal cannot rule on any claims of Ukraine presented in its Notification and Statement of Claim and its Memorial which are dependent on the premise of Ukraine being sovereign over Crimea.”
But then, later in the decision (paras. 348-349), dealing with the question of Article 1 ECHR jurisdiction, the Court seemed to be saying that Ukraine’s sovereignty over Crimea was intact (see my prior post for a more detailed discussion). That said, throughout the decision the Court made no finding as to whether Crimea was occupied in the IHL sense of the word. In fact, it repeatedly used scare quotes around the word “occupation” (e.g. paras. 32, 53, 107, 244, 392, 413, 429, 463). (And did the same with “invasion.”)
In the merits judgment, however, there is a major tonal shift, and also a substantial legal one. The “occupation” became an occupation, while the Accession Treaty through which Crimea purported to join the Russian Federation became the “Accession Treaty” (e.g. paras. 864, 920, 921, 922, 944). The strategic use of quotation marks aside, the Court framed its legal analysis of this issue by reaffirming the view that the Convention cannot be applied in a vacuum and that it can interpret and apply the Convention while taking into account the relevant rules of IHL (paras. 912-917). But then it said this:
- In these circumstances, the Court considers that the factual basis on which the respondent State obtained extraterritorial jurisdiction and continued to exercise it throughout the relevant period(s) on the basis of “effective control” over Crimea, militate in favour of taking account of the relevant provisions of IHL when interpreting the Convention rights in issue in this case, as provided for by Article 31 § 3 (c) of the Vienna Convention. The Court notes that the OHCHR and a number of NGOs (Human Rights Watch and Amnesty International), as well as the Office of the Prosecutor at the International Criminal Court, on whose reports the Court placed some reliance in its admissibility decision, expressed the view that certain practices of the respondent State amounted to violations of IHL and, as the Office of the Prosecutor at the ICC stated (quoted at paragraph 224 of the admissibility decision), “that the situation within the territory of Crimea and Sevastopol factually amounts to an ongoing state of occupation”. The Court will therefore consider the rules of IHL, in so far as relied on by the applicant Government, when considering the compatibility of an alleged administrative practice with the Convention right(s) in question. In so doing it will follow the methodology applied in Georgia v. Russia (II) (cited above, § 95) and in Ukraine and the Netherlands v. Russia (cited above, §§ 718-21), according to which:
“95. In the present case the Court will thus examine the interrelation between the two legal regimes with regard to each aspect of the case and each Convention Article alleged to have been breached. In doing so, it will ascertain each time whether there is a conflict between the provisions of the Convention and the rules of international humanitarian law.”
- The above approach is limited to the interpretation and application of the Convention in so far as necessary in the circumstances of the present case. It underlines the necessary interplay between IHL and the Convention, as two international legal regimes relevant to the case. It has no bearing on the issues pertaining to Crimea’s status under international law, which, as stated in paragraph 244 of the admissibility decision “are outside the scope of the case”.
These two paragraphs need to be read carefully. In para. 918, the Court seems to be holding that Crimea is an occupied territory without really saying so, relying instead on the views of the OHCHR, human rights NGOs and the ICC OTP to the effect that Crimea is occupied. All these actors said that Crimea is occupied, and therefore the Court should treat Crimea as occupied, is what this boils down to.
This is just bizarre. What happened to jura novit curia? Whether Crimea is occupied or not is an objective legal question that was for the Court to determine, incidentally, to the extent it needed to in applying the Convention. And that question depends, in turn, on whether Crimea is Russian or Ukrainian sovereign territory, because a state by definition cannot occupy its own territory. It does not depend on whether any external observer thinks there is an occupation. There can simply be no determination of occupation without pronouncing on sovereignty in one way or the other. But the Court doesn’t want to do that (I am reminded here of the ambiguous approach of Israeli courts to the applicability of the law of occupation to Palestinian territories, even if these cases are very different). Not only does the Court not want to say here that Crimea is Ukrainian territory, in para. 919 it has an even stranger disclaimer that its decision has no bearing on Crimea’s status under international law – which, again, is just not true, because Crimea’s status under IHL depends entirely on its status under general international law.
What are we to make of this? It seems to me that the Court wanted to apply the law of occupation without sending a signal to all ECHR member states that questions of territorial sovereignty (and others of similar legal and political weight) can incidentally fall within its jurisdiction. Which, of course, they can. Plus there was, I imagine, a need to maintain consensus among the judges of the Grand Chamber – and so we have this somewhat twisted finding, which thankfully does not depart from the objectively correct legal position that Crimea indeed is occupied because the sovereign title over the territory remains with Ukraine, as Russia’s purported annexation was devoid of any legal effect internationally.
On Law and “Law”
This brings me to the major legal consequence that the Court drew from applying the law of occupation. Looking at the facts of all of the violations alleged and established in this case, there seemed to be little practical need to apply the law of occupation in the first place, although the Court does so faithfully. This is simply because the relevant IHL rules are fully aligned with Convention standards that apply in times of normalcy (e.g. on fair trials, suppression of the free press, or enforced disappearances). In other words, applying IHL on the facts of this case made little substantial difference (the same does not apply to other pending cases dealing with the war in Ukraine). But there is one – enormous – exception to this point.
At para. 920 et seq of the judgment, the Court identifies a general question of “lawfulness” that permeates the whole case. While distinguishing prior case law dealing with the laws of unrecognized territorial entities, the Court held at para. 933 that it ‘has been called upon to determine whether the law of the Russian Federation, which served as a legal basis for the measures complained of, taken while the Russian Federation exercised extra-territorial jurisdiction over Crimea on account of effective control, can be regarded as “law” within the meaning of the relevant provisions of the Convention.’ The Court then cites the relevant rules of the Hague Regulations and the Fourth Geneva Convention that prohibit an occupying power from changing the legal system of the occupied territory or from altering the status of public officials or judges in the occupied territory. It finds that there were no reasons that could justify the imposition of Russian law in Crimea as a matter of IHL, and concludes as follows:
- In such circumstances, the Court considers that, when the respondent State extended the application of its law to Crimea, it did so in contravention of the Convention, as interpreted in the light of IHL. Accordingly, Russian law cannot be regarded as “law” within the meaning of the Convention and any administrative practice based on that law cannot be regarded as “lawful” or “in accordance with the law”. The consequential effects of this conclusion will be outlined in more detail below and to the extent necessary in relation to each alleged violation, including the Article 6 complaint that the “court system” operating in Crimea during the period under consideration could not be regarded as “established by law”.
The extension of Russian law to Crimea – undoubtedly a violation of IHL – thus becomes a violation of the Convention as interpreted in the light of IHL. Throughout the judgment, the Court then finds violations of various rights, including the right to a fair trial, the liberty of person, freedom of expression and privacy, on the basis that the interference failed the legality test for a justified limitation. For all (or virtually all) violations, the Court also goes into substantive questions of legitimate aim, necessity and proportionality, and finds violations on these bases as well. But the bottom line of the Court’s approach is that Russian law in Crimea is not sufficiently “law” for human rights purposes, and that limitations on human rights on the basis of this law can never be justified.
This is an extraordinarily strong finding. It means that every single time Russian courts and other authorities had acted in Crimea in a way that interfered with human rights there was ipso facto a violation of human rights, because these authorities were not acting lawfully. So, for example, if Russian authorities arrested and tried a common drug trafficker, rapist, thief or murderer in Crimea, gave them a completely fair trial, there were no political elements whatsoever to the case, none of the stuff at issue before the European Court, there would still be a violation of human rights because the legality test was not met. Put differently, applying the Court’s approach to what “law” is, every single person in a Crimean prison today would be a victim of a human rights violation, because they have not been detained or tried in accordance with the “law.”
The Convention no longer applies to Russia, of course, but the International Covenant on Civil and Political Rights does. Were the Human Rights Committee to adopt this reasoning, for example, every single thing Russian authorities have done in Crimea since 2014 would violate the ICCPR, no matter how otherwise justified. Every arrest, every trial, every search ipso facto fails the legality test. Or, to give another example, every single application of Israeli law in occupied territories in breach of Article 43 of the Hague Regulations or Article 64 of the Fourth Geneva Convention – e.g. to detain and prosecute a settler in the West Bank who murdered a Palestinian – would be a violation of the human rights of the settler, because he or she would have been detained and tried unlawfully. The same obviously goes for the application of Israeli law in territories that it has unlawfully annexed, such as East Jerusalem or the Golan Heights.
This is a position that is so sweeping that I can’t see how it could possibly be correct. Again, there is no doubt that there is a violation of IHL in these circumstances. However, the relevant rules of IHL are there not just to protect the interests of the population of an occupied territory, but also those of the displaced sovereign. It is not clear to me how violations of IHL in such cases automatically get transmuted into human rights violations. That the Convention or other human rights treaties should be interpreted in light of IHL does not logically entail that every IHL violation is a human rights violation.
Just to reiterate – the Court would have found all (or virtually all) of the violations it found in this case even if it had not adopted this particular approach, and I am perfectly content with that. I am therefore even more perplexed as to why this approach to what “law” is was even needed. But maybe I have missed something here.
Now, some other, less detailed comments.
A Couple of Other Comments
First, it is remarkable how extensive the judgment is. The judgment is almost 350 pages, with a substantive annex that forms an integral part of the judgment at some 400 pages. This is partly because of the incredibly broad scope of the case, and partly because it is fact-intensive. The Court must be commended for being able to produce a judgment like this, even though states have not given it the substantial additional resources it needs to deal with this kind of litigation.
Second, the Court was not only unanimous in its conclusions, but there are no separate opinions attached to the judgment at all. This is just extraordinary in the Court’s practice, especially in a Grand Chamber case of this scope and importance, and must have been the result of a concerted effort to project a unified front (and the end result is necessarily a compromise).
Third, when it comes to the Court’s approach to fact-finding, much of the judgment essentially relies on the reports of various independent bodies, such as the OHCHR or human rights NGOs, and then draws an adverse inference from Russia’s failure to appear before the Court at the merits stage and provide sufficient evidence in rebuttal. See, for example, how the Court deals with enforced disappearances as violations of the right to life (at paras. 964-974), arbitrary searches of private houses (at paras. 1044-1047), or arbitrary interferences with freedom of expression (at paras. 1089-1097).
This approach allows the Court to make factual findings more easily than it would have had Russia actively participated at the merits stage, and more easily than other international tribunals where a legal duty of cooperation does not exist. Indeed, when setting out its general approach to evidence, the Court says that:
- With a view to clarifying, inter alia, the factual background of application no. 38334/18, a letter was sent by the Court on 2 July 2021 inviting the respondent Government to provide, in the context of their memorials (see paragraph 14 above), copies of the relevant case files pertaining to the persons mentioned in the application form submitted by the applicant Government. However, the respondent Government submitted no material whatsoever in response to the Court’s express request. The Court observes that the evidential material sought was undoubtedly within the possession of the respondent State, which, moreover, in the specific circumstances of this application, was most likely the only entity in a position to provide it in a comprehensive manner.
- The Court further notes that since the submission of the written memorial of 28 February 2022, the respondent Government has remained silent. They neither responded to the Court’s letters or specific requests for documents (such as copies of the statutory laws and other legal acts referred to in their memorial), nor did they submit any evidential material or additional observations, notwithstanding the fact that their attention was drawn, on two occasions, to Rule 44C of the Rules of Court cited above (see paragraphs 846 and 847 above, for the principles, and also paragraphs 19 and 21 for the steps taken by the Court). Furthermore, despite having been notified in good time, they did not participate in the hearing held on 13 December 2023 that provided a further opportunity to argue the case. They provided no reason for their failure to do so. This does not represent a constructive engagement with the proceedings for the examination of the case as required under Article 38 of the Convention (see paragraphs 906 et seq.) and the Court will draw all the inferences that it deems relevant and combine such inferences with contextual factors (see, mutatis mutandis, Ukraine and the Netherlands v. Russia (dec.) [GC], cited above, §§ 438 and 459, in which case the respondent did participate at the admissibility stage, but did so inadequately).
- Furthermore, the Court is aware that the military attacks by the respondent State on Ukraine have been on-going throughout. On a number of occasions the applicant Government submitted that the attacks considerably affected their ability to participate effectively in the proceedings before the Court, regarding both their written and oral pleadings, as well as in relation to their ability to gather the relevant evidence. The Court will make allowance for this, but needs to be satisfied on the basis of the available evidence that the claims are well-founded in fact and in law.
- Another element to be taken into account is the continuing denial of access to Crimea by the respondent State (at least since it assumed effective control) to officials of the applicant Government and/or to independent monitors, a matter already referred to in the admissibility decision (see Ukraine v. Russia (re Crimea), cited above, §§ 389-90). The respondent Government did not engage with the applicant Government’s arguments in their memorial that such a denial of access had caused and continued to cause considerable practical difficulties associated with the gathering of relevant evidence.
The Court subsequently finds that Russia failed to comply with its duty of cooperation under Article 38 of the Convention (paras. 906-909). Bottom line, were this not a case between Ukraine and Russia, the Court’s fact-finding task would have been even more difficult and the applicant would not necessarily have prevailed so comprehensively.
Finally, this brings me to one specific point in the case that really requires a deeper exploration. At paras. 1176 et seq of the judgment, the Court finds with some ease that Russia violated numerous rights of the Crimean Tatars, and did so on a discriminatory basis. In particular:
- The Court has already established that the evidential material available at the admissibility stage provided a sufficient prima facie basis for the alleged administrative practice under this head. In the light of the additional evidence adduced at the present stage of the proceedings, which further strengthens the applicant Government’s allegations, the burden of proof to rebut the presumption of discrimination has shifted to the respondent Government (see paragraphs 846 and 1181 above).
- For their part, the respondent Government submitted certain figures regarding prosecutions in 2014 and 2015 of different ethnic groups in Crimea for serious and minor offences. In addition, they referred to the discontinuation of the criminal investigation of three Crimean Tatars in relation to a single event of January 2015 (see paragraphs 1179 and 1180 above).
- The Court takes note of that material, but observes that the respondent Government have provided no information about the source of those statistics and the methodology applied in the process of collecting them, nor have they presented any evidence which would allow the Court to assess their veracity and reliability (see paragraph 1163 above). In any event, the Court notes that this information concerned only one aspect of the applicant Government’s allegations of discrimination, namely the disproportionate prosecution of Crimean Tatars. The respondent Government did not engage with any of the other aspects of the case under this head. Nor did they submit any evidence to disprove the applicant Government’s allegations of discrimination which the latter had supported with credible evidence (see paragraphs 988 and 989 above). They have not provided the Court with any reason why the above evidence cannot serve to corroborate the allegations made by the applicant Government. In addition, they have not provided any, let alone a satisfactory or convincing, explanation to establish that the difference in treatment complained of had been objectively and reasonably justified by reference to a legitimate aim. Similarly, no credible or substantiated explanation has been given by the respondent Government to rebut the presumption of responsibility on the part of their authorities (or of those under their control) to account for the acts complained of.
- In view of the above, the Court concludes that there was an administrative practice targeting Crimean Tatars, in violation of Article 14 of the Convention, taken in conjunction with Articles 8, 9, 10, 11 of the Convention and Article 2 of Protocol No. 4.
What’s especially interesting here is that the Court makes no reference at all to the merits judgment of the ICJ in the CERD Ukraine v. Russia case, in which the ICJ could not establish racial discrimination against the Tatars, because Ukraine’s evidence was not sufficiently convincing. Again, comparing these two cases requires more careful study, but my sense is that the outcome is explainable by the different approach to evidence – in particular, the European Court’s finding that Russia refused to comply with its duty to furnish it with all necessary facilities, which does not exist before the ICJ, Russia’s refusal to engage with Ukraine’s arguments, and the reversal of the burden of proof. Another point to possibly consider is the distinction between racial discrimination and group identity-based discrimination simpliciter.