This Article has been written by MOHAMMAD FARAZ, a student of Law 3rd year from Aligarh Muslim University Centre Murshidabad, West Bengal.

ABSTRACT

The issue of racial discrimination is harmful to the global community, so both national and international actions are necessary to address it. The International Convention on the Elimination of Racial Discrimination (ICERD) of 1969 is an example of an international effort to combat racial discrimination. The responsibility for interpreting and resolving disputes related to racial discrimination lies with the Committee on the Elimination of Racial Discrimination (CERD). However, the CERD has limited functions and authority. Since 2010, there has been a growing trend among states to seek resolution of inter-state disputes on racial discrimination through mechanisms such as the International Court of Justice (ICJ). 

The recent ruling from the European Court of Human Rights on the Georgia v. Russia case from January 21, 2021, has left many people with mixed feelings. On one side, the Court held Russia responsible for consistently violating human rights during its involvement in the “five-day war.” However, this responsibility was only acknowledged for the period after the ceasefire on August 12, 2008, known as the “occupation phase.” During the earlier “active phase of hostilities” from August 8 to 12, 2008, the Court couldn’t assign responsibility to Russia due to a lack of “effective control” over the situation. This ruling raises important questions about how the law applies in conflicts outside a country’s borders, particularly regarding whether a state has enough control over an area to be held responsible for what happens there. Additionally, it highlights the complex relationship between human rights law and the rules of war, known as international humanitarian law. Finally, the ruling underscores the obligation for thorough investigations into violations of the right to life under the European Convention on Human Rights.

KEYWORDS

European Convention on Human Rights, European Court of Human Rights, Violation

INTRODUCTION

The European Convention on Human Rights (referred to as the “ECHR” or the “Convention”) stands as a robust regional instrument safeguarding individual rights and freedoms. Central to its enforcement is the European Court of Human Rights (referred to as the “ECtHR” or “the Court”), known for its proactive role in ensuring justice on a regional level. With a well-established track record in addressing matters related to military conflicts, the Court has received and adjudicated both inter-state and individual applications concerning war-related issues.

Following the outbreak of war between Georgia and the Russian Federation in August 2008, Georgia swiftly lodged an inter-state application against Russia, alleging violations of rights guaranteed under the Convention. This move underscored the significant role of the ECtHR in addressing conflicts among its member states.

In its assessment, the Court had to grapple with the concept of extraterritorial jurisdiction of the respondent state, Russia, amidst an ongoing international armed conflict. Additionally, it had to navigate the intricate relationship between international humanitarian law (referred to as “IHL”) and human rights law.

However, the much-anticipated judgment of the Grand Chamber sparked controversy among international law experts, scholars, and victims alike. Contrary to expectations, the Court did not establish extraterritorial jurisdiction for Russia during the conflict. Furthermore, it refrained from asserting territorial jurisdiction for Georgia in individual applications against it.

Consequently, the Court’s ruling left many individuals without the protection guaranteed by the European Convention on Human Rights, raising concerns and stirring debate among various stakeholders.

FACTUAL SITUATION

From 1921 to 1991, Georgia was part of the Soviet Union against its wishes. Upon gaining independence from the Soviet Union, Georgia faced challenges in rebuilding its nation due to ethnic divisions and conflicting memories. There were conflicts in South Ossetia (Samachablo) from 1991 to 1992 and in Abkhazia from 1992 to 1994, where Georgian forces clashed with separatists, resulting in Georgia losing control over significant parts of these regions. The EU Fact-Finding Mission reported Russian support for the separatists during these conflicts.

Tensions escalated over time, leading to the war between Georgia and Russia that began on August 7-8, 2008. The EU Fact-Finding Mission described the war as the culmination of escalating tensions, provocations, and incidents. The Russian side had reportedly made military preparations before the conflict. Russian ground forces, supported by the air force and Black Sea fleet, entered Georgia on August 8, 2008, leading to days of fighting, bombings, and destruction, with devastating long-term consequences, as noted by Human Rights Watch. Hundreds lost their lives, and over 3,00,000 civilians fled their homes during the conflict.

A ceasefire agreement was brokered on August 12, 2008, by the European Union, stating that both parties would refrain from using force and allow humanitarian aid access. However, on August 26, 2008, the Russian Federation recognized the independence of de facto Abkhazia and South Ossetia, followed by agreements of “friendship and cooperation” and the deployment of Russian military forces to these regions, drawing condemnation from the international community.

JURISDICTION

Georgia contends that the jurisdiction of the Court is based on Article 22 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), a treaty ratified by both Russia and Georgia. As Russia was considered a successor state to the USSR, which ratified the treaty in 1969, it remains bound by its obligations. Georgia, on the other hand, joined the treaty in 1999.

Article 22 of the CERD, which played a crucial role in establishing the Court’s jurisdiction, states that any dispute between two or more States Parties concerning the interpretation or application of the Convention, not resolved through negotiation or the procedures outlined in the Convention, can be referred to the International Court of Justice for resolution at the request of any party involved, unless they agree on an alternative method of settlement. This avoids the need for the Court to reconsider the issue of automatic succession to human rights treaties under general international law, as seen in previous cases such as the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia).

REQUEST FOR PROVISIONAL MEASURE

In its request for provisional measures, Georgia sought court orders to compel the Russian Federation and separatist authorities under its influence to take certain actions:

1. Refrain from any further acts of ethnic discrimination against Georgian citizens, extending protection to civilians under the occupation or control of Russian forces.
2. Avoid any actions that would result in recognizing or making permanent the ethnic segregation of Georgian citizens, especially through forced displacement or denying internally displaced persons (IDPs) the right to return to their homes in South Ossetia, Abkhazia, and adjacent areas.
3. Stop any further actions violating the fundamental human rights of Georgian citizens, particularly the right to personal security and protection against violence or bodily harm.
4. Cease any actions denying effective protection and remedies against ethnic discrimination and human rights violations to Georgian citizens under their jurisdiction.

These requests were made under Article 41 of the Court’s statute, aiming to preserve the rights of the parties while awaiting a final decision on the case’s merits. Russia’s main objection to the request for provisional measures was that it would force the Court to mandate actions within a territory not under its jurisdiction or control. Additionally, it implied an obligation for Russia to compel other actors, such as separatist authorities, who are not its representatives or accountable to it, to take measures ensuring compliance with treaty obligations.

COURT FINDING

The Court referred to its past rulings and emphasized the need for a connection between the requested interim measures and the subject matter of the case. It also required proof that irreparable harm would occur to the rights in question if the measures were not granted.

The Court acknowledged the uncertain and dynamic situation in Abkhazia and South Ossetia, where lines of authority were unclear. Given the lack of an overall settlement in the conflict region, the populations remained vulnerable, and the issues faced by refugees and displaced persons were unresolved. Recognizing the imminent risk of irreparable harm to the rights of the affected populations, the Court emphasized that obligations under the CERD applied to all state parties.

As a result, the Court ordered both Georgia and Russia to ensure that no further violations of conventional rights occurred, regardless of whether past acts could be legally attributed to them. These provisional measures were issued without prejudice to the parties’ rights at later stages of the proceedings regarding jurisdiction, admissibility, or merits.

Within South Ossetia, Abkhazia, and adjacent areas in Georgia, both parties were instructed to:

1. Refrain from any acts of racial discrimination against individuals, groups, or institutions.
2. Avoid supporting or defending racial discrimination by any individuals or organizations.
3. Take all possible measures, without discrimination based on nationality or ethnic origin, to ensure:

• the security of individuals,
• the right to freedom of movement and residence within the state’s borders,
• the protection of property belonging to displaced persons.

1. Prevent public authorities or institutions under their control or influence from engaging in acts of racial discrimination against individuals, groups, or institutions.

The ruling in the case of Georgia v. Russia (II) issued by the Grand Chamber of the European Court of Human Rights (ECtHR) on January 21, 2021, holds great historical significance. It marks only the fourth time the Court has resolved an inter-state complaint. In this judgment, the judges held Russia accountable for numerous violations of the European Convention on Human Rights (ECHR), including unlawful killings, torture, arbitrary detentions, looting, and destruction of villages during the invasion of Abkhazia and South Ossetia in August 2008, as well as the subsequent armed conflict and occupation.

The comprehensive ruling adds valuable insights to the historical understanding of the conflict and its toll on human lives. After twelve years of legal proceedings, the judicial outcome has undoubtedly taken significant steps towards addressing the human rights violations committed during the conflict.

CONCLUSION

The way the applicant presented their case, focusing only on violations of the CERD, might limit how much the Court can contribute to this significant dispute if it decides to continue to the main part of the case. The decision on provisional measures only puts a temporary hold on whether the Court can hear the case. Following its past practices, the Court only needed to determine on a basic level whether the application seemed valid.

This means there’s a chance the Court might later decide it doesn’t have the authority to handle the main part of the case. It could also decide that the main issue is about the use of force rather than violations of rights under the CERD, which might be outside its jurisdiction. Either way, it’s unlikely the Court will make a final decision that fully resolves the main issues of the dispute.

Reference:

This article was originally written by Atul Alexander and published on Indonesian Journal of International Law (2022), Vol. 19 No. 2, pp. 213-237. The link for the same is herein https://scholarhub.ui.ac.id/cgi/viewcontent.cgi?article=1563&context=ijil 

Application no. 38263/08. Georgia is the petitioner (applicant), and Russia is the respondent.

This article was originally written by Marcin Marcinko and published on Polish Review of International and European Law. The link for the same is herein https://czasopisma.uksw.edu.pl/index.php/priel/article/view/9915 

This article was originally written by Deborah Casalin and published on Strasbourg Observers. the link for the same is herein https://strasbourgobservers.com/2021/02/17/georgia-v-russia-ii-zooming-in-on-conflict-displacement

This article was originally written by Salome Tsiklauri and published on Central European University. The link for the same is herein file:///C:/Users/ak383/Downloads/tsiklauri_salome.pdf 

This article was originally written by Dr. Phoebe Okowa and published on HAGUE JUSTICE JOURNAL. The link for the same is herein https://www.haguejusticeportal.net/Docs/HJJ-JJH/Vol_3(3)/Journal%20-%20Okowa%20-%203.3%20-%20EN.pdf 

This article was originally written by Helen Duffy. The link for the same is herein https://www.justsecurity.org/74465/georgia-v-russia-jurisdiction-chaos-and-conflict-at-the-european-court-of-human-rights/