Oleksii Plotnikov, PhD
The aggression of the Russian Federation (RF) against Ukraine in 2014 resulted in occupation of Crimea and parts of Donetsk and Luhansk Oblasts. It is accompanied by massive and grave violations of human rights on the occupied territories. Roughly 1,5 million people became internally displaced . Both Ukraine and RF are parties to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (Convention), which means that under Article 1 of the Convention they are obligated to provide to all persons under their jurisdiction the rights and freedoms set forth by that document.
With regard to Crimea, the RF recognizes and declares its control over the Peninsula, while with regard to parts of Donetsk and Luhansk oblasts the RF claims absence of such control. Ukraine remains the only rightful sovereign of Crimea, Donetsk and Luhansk oblasts, however, it is unable to exercise its powers there, including those concerning human rights obligations. The resulting question is which of the states bears the obligation of guaranteeing human rights on these territories, and how responsibility for human rights violations is distributed between both States.
The occupation by RF of the parts of Ukrainian territory resulted in sharp deterioration of human rights situation in these territories. The UN General Assembly Resolution 73/263 strongly condemned “the continuing and total disregard by the Russian Federation for its obligations under the Charter of the United Nations and international law regarding its legal responsibility for the occupied territory, including the responsibility to respect Ukrainian law and the rights of all civilians” .
The UN Secretary General in his report identified violations by the de facto authorities of fundamental human rights, including the right to life, right to liberty and security, right to fair trial, property rights, right to freedom of thought and religion, right to peaceful assembly, etc. However, a comprehensive assessment of human rights violations in these territories is impossible because access of representatives of international human rights monitoring organizations is restricted .
Some conclusions on human rights violations at issue may be drawn on the basis of the published documents from the interstate claims of Ukraine against Russia at the European Court of Human Rights (ECtHR). Among other things, the press release of 9 May 2018 specified that the Ukrainian government claims violation of Articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to fair trial), 8 (respect for private and family life), 9 (freedom of religion), 10 (freedom of thought), 11 (freedom of assemblies and associations), 13 (right to effective remedy), 14 (prohibition of discrimination) of the European Convention, as well as Article 1 of Protocol 1 (right to property), Article 2 of Protocol 4 (freedom of movement) .
It follows that the claim of Ukraine concerns most of the rights provided by the Convention, and it can be reasonably expected, that individual applications will address at least the same, if not broader set of rights. In addition, the ECtHR itself underlined that ‘it had to consider whether Russia had “jurisdiction”, within the meaning of Article 1 of the Convention” . It is therefore of paramount importance for Ukraine to take all possible efforts to prove the responsibility of the Russian Federation for violations, and take all possible measures to comply with its own obligations under the Convention in order to avoid responsibility.
Although Ukraine has not exercised control over Crimea and parts of Donetsk and Luhansk Oblasts since 2014, it remains a sovereign over these territories. In particular, Ukraine has legally established an obligation to take measures to protect human and civil rights and freedoms in these territories.
At the same time, Ukraine insists that ensuring human rights and freedoms in Crimea and uncontrolled parts of the Donetsk and Luhansk regions is the responsibility of the occupying power, i.e. the Russian Federation. This is the basis of Ukraine’s position in international courts, namely in the case of the application of the International Convention on the Elimination of All Forms of Racial Discrimination, which is considered in the UN International Court of Justice (ICJ), and in Ukraine’s interstate complaints against Russia in the ECtHR.
This creates a general question of the division of responsibilities of the sovereign state and the occupying state for the observance of human rights in the occupied territory. The issue is not new for international law, and some basic rules regarding this division of responsibilities are well known. Thus, in an advisory opinion on the construction of a wall in the Occupied Palestinian Territory, the ICJ found that the jurisdiction of states is predominantly territorial, but sometimes it can be exercised outside the national territory.
Given the subject matter and objectives of the International Covenant on Civil and Political Rights, it seems natural for States parties to the Covenant to be bound by it if they exercise their jurisdiction outside their territory. This conclusion is in line with the practice of the UN Human Rights Committee and has been repeatedly referred to by the ECtHR, and thus can be considered as indication of the existence of a universally recognized rule of international law.
The application of the general rule on the responsibility of the occupying power for the observance of human rights in the occupied territory raises a number of specific issues when applied in life situations. The ECtHR has accumulated the most experience here, dealing with these issues in cases arising from the situations of Northern Cyprus, Transnistria, Nagorno-Karabakh, and others. The approach that both the occupying power and the sovereign state are responsible for respecting human rights in the occupied territories has been repeatedly confirmed for other situations and appears to have become a general standard of international human rights law.
In the case of Ilaşcu and Others v. Moldova and Russia, concerning the Russian-occupied territory of Transnistria, the ECtHR concluded that “where a Contracting State is prevented from exercising its authority over the whole of its territory by a constraining de facto situation, such as obtains when a separatist regime is set up, whether or not this is accompanied by military occupation by another State, it does not thereby cease to have jurisdiction within the meaning of Article 1 of the Convention over that part of its territory temporarily subject to a local authority sustained by rebel forces or by another State” .
It is gratifying that Ukraine has been aware of this duty since the beginning of the occupation. The law “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine” adopted in April 2014 explicitly states Ukraine’s obligation to take “all necessary measures to guarantee human and civil rights and freedoms provided by the Constitution and laws of Ukraine. international treaties, all citizens of Ukraine living in the temporarily occupied territory”. The same law places the “responsibility for the violation of human and civil rights and freedoms defined by the Constitution and the laws of Ukraine in the temporary occupied territory” on the “Russian Federation as the occupying power in accordance with the norms and principles of international law”.
The wording of the law is noteworthy. It establishes an obligation for Ukraine only with respect to the rights of its own citizens. This can be explained by the reluctance to commit to the rights of the Russian citizens in Crimea, but the same can potentially give rise to a problem similar to the Ilaşcu case, where the applicant was a third-country national. However, so far this question remains theoretical. It is clear from this provision that Ukraine continues to consider itself sovereign of Crimea and declares its intention to fulfill its human rights obligations.
However, what makes this case different from Loizidou and Ilaşcu, is that Russia also declares itself to be a sovereign of Crimea, so, at least in theory, there should be no problem in recognizing its responsibility for human rights violations in Crimea, because the RF itself acknowledges such responsibility. However, this position of the Russian Federation raises another problem, which is that Russia is unlikely to recognize any decision of the ECtHR, if it mentions Ukraine’s sovereignty over Crimea.
It cannot be ruled out that the applicants in cases originating in Crimea, Donetsk and Luhansk Oblasts may choose to apply to international institutions only against Russia, as the Mozer and Ilaşcu cases clearly demonstrate that the ECtHR is inclined to recognize Russia’s responsibility for human rights violations committed by self-proclaimed bodies. In Crimea the situation is even more unequivocal, and here a claim exclusively against the Russian Federation may be the best choice in terms of recognition of the decision and its implementation by the violating state.
It is up to ECtHR to determine whether such liability can be established for RF only. However, in any case, it can be expected that the Court may, on its own initiative, verify Ukraine’s compliance with its positive obligations in such cases.
Another special feature of the Ukrainian situation is that there is an active armed conflict between Ukraine and Russia. We must not forget about the qualification of the situation as an interstate armed conflict by the prosecutor of the International Criminal Court (ICC).
Therefore, it is likely that the ECtHR will decide to consider responsibility under international human rights law, without even having to draw its own conclusions about the existence and nature of the conflict, as it will be able to confine itself to referring to the ICC prosecutor. The ECtHR has already made a similar assessment of the existence of control from the point of view of international humanitarian law in the case of Chiragov and Others v. Armenia.
Two conclusions can be drawn from the analysis of the case law of the European Court of Human Rights. First, the ECtHR is critical of the usual line of defense for the occupying States, which is built around the alleged lack of territorial jurisdiction of the court. In such cases, the ECtHR refers to Article 1 of the Convention, according to which states are obliged to ensure the rights and freedoms provided to all those under their jurisdiction, and the concept of effective control as part of the law of international responsibility of states, which determines the actual relationship between the de facto authorities of the occupied or separatist territory and the occupying power. This is even more true for Crimea, where Russia does not deny its control and claims its sovereignty.
Therefore, it is unlikely that the ECtHR will refuse to recognize Russia’s responsibility for human rights violations in the occupied territories of Ukraine. The Khlebik case demonstrated that Ukraine could avoid liability for human rights violations in the occupied territories. However, Ukraine’s responsibility cannot be ruled out, as can the possibility of avoiding such a Russian Federation, at least in some cases.
It seems that the most important question that the ECtHR will have to answer in the upcoming cases will be the question of evidence of the presence, control, or influence of the Russian Federation in the occupied territories. This applies not only to Donbass, where Russia denies its presence, but also to Crimea, as much of the human rights violations claimed by Ukraine took place before the so-called “Crimean referendum” and before Russia recognized its control over Crimea.
After all, Ukraine’s first interstate complaint against Russia was initiated before Russia recognized such control. It is clear from the case law of the ECtHR that States can be held responsible for activities outside their territory, regardless of whether they exercise control over the territory of another state directly or indirectly through subordinate local structures.