ECtHR Judgement in Georgia v. Russia (II): A Bittersweet Victory for Georgia

  • Tetyana Demyanchuk
  • 15.3.2021 16:06

In January 2021, the European Court of Human Rights (ECtHR) found Russia responsible for human rights violations in the five-day war with Georgia in 2008. Even though Georgia came out a winner from this twelve-years long legal battle, this decision can have further ramifications for other pending cases held in ECtHR, especially those concerning the conflict in and around the region of Nagorno Karabakh and the conflict in Eastern Ukraine.

On the 21st of January, the ECtHR delivered an important judgement on the inter-state case GEORGIA v. RUSSIA (II). The Court ruled in favour of Georgia and found Russia responsible for violating various articles of the European Convention of Human Rights in the immediate aftermath of the conflict. The violations included: detaining and torturing individuals, and preventing Georgian nationals from returning to their homes in South Ossetia and Abkhazia after the war. The Court further found that Russia has not carried out an effective investigation into the violations that took place.

The war erupted in August 2008 and ended in less than a week, with Russian soldiers remaining in the Georgian breakaway regions of South Ossetia and Abkhazia. These regions were afterwards declared independent states by Moscow. Georgia filed a number of lawsuits against Russia, trying to hold the Kremlin accountable for violations of the European Convention on Human Rights. 

Even though this judgement is undoubtedly a victory for Georgia, it was still bitter sweet. A “Judgement of Solomon”, as it was called by some. By 11 votes to 6, ECtHR declared part of Georgia’s application inadmissible. The court refused to look at the alleged violations of human rights during the “active phase of hostilities”, as it concluded that the events of this “phase” did not fall within Russia’s jurisdiction.

 

“The decision can have further ramifications for other pending cases held in ECtHR, such as the conflicts in Nagorno Karabakh or Eastern Ukraine.”

 

This was not just a loss for Georgia, the decision can have further ramifications for other pending cases held in ECtHR, such as those concerning the conflict in and around the region of Nagorno Karabakh and the conflict in Eastern Ukraine. To understand why, one needs to delve deeper into the ECtHR’s findings.

 

Effective control during the active phase of hostilities

Crucial to understanding the judgement is a temporal distinction that the Court decided to make between the period of “active phase of hostilities” 8-12 August 2008 and the subsequent period that took place following the ceasefire agreement of 12 August.

After the examination of the case, ECtHR concluded that Russia did not exercise “effective control” over South Ossetia, Abkhazia and the buffer zone during the “active phase of hostilities”. Hence, Russia had no jurisdiction and is not responsible for the many human rights violations, with the exception of the procedural obligation to carry out an adequate investigation into all deaths that happened and the responsibility for the arbitrarily detentioned civilians.

The Court argued that a war zone creates a situation of chaos and it is not possible to talk about “effective control” under those circumstances. ECtHR refers to this as the “context of chaos” that comes with the reality of armed confrontation. 

While following the ceasefire agreement of 12 August 2008 and until 10 October 2008 (the date of the official withdrawal of the Russian troops), the Court found that Russia was in “effective control” over the territories and hence it had jurisdiction. Even after the withdrawal of forces, the strong presence and the dependency of the regions’ authorities on Russia points at it having a continued “effective control” over the areas. 

 

Potentially negative impact on other inter-state cases

This judgement is likely to haunt ECtHR in other cases that involve conflicts that contain the element of the “context of chaos” and similar issues of contested jurisdiction (that is compulsory to be established in the inter-state cases in ECtHR), i.e. those on Ukraine and Nagorno-Karabakh. The way the “context of chaos” was explained with this decision, points at it being impossible to have any form of personal jurisdiction during the active phase of the conflict.

This becomes a problem as conflicts frequently cannot be clearly divided into “phases”, such as in the cases of our concern. It is true to say that in the reality of a conflict, the control over territory is fluid rather than absolute, especially in the short-term, but the division into “phases” does not capture this complexity. In the example of GEORGIA v. RUSSIA (II), as it was noted in one of the analysis, it is difficult to accept that Russia did not have control over some areas on 11 August, but somehow was in total control on 12 August.

 

“The conflicts do not necessarily stop with the ceasefire agreement (...). This makes the Court’s temporal distinction seem even more arbitrary and very hard to apply to other future cases.”

 

Furthermore, the cessation of hostilities does not necessarily mean that the conflict between the two states has ended. In the case GEORGIA v. RUSSIA (II), the “phases” were relatively easy to establish, but the conflicts do not necessarily stop with the ceasefire agreement and some even continue without much formal acknowledgement. This makes the Court’s temporal distinction seem even more arbitrary and very hard to apply to other future cases.

For example, the case of Eastern Ukraine will be more complicated in many respects: the fighting took place in different areas of the Donetsk and Luhansk regions simultaneously since early 2014, the control over certain areas changed hands multiple times (such as the town of Debatlseve). A number of ceasefires and have been followed by periods of reflaired hostilities multiple times since the beginning of the conflict.

The judgement is also an indicator that when the Court takes decisions on its inter-state cases, it is cautious for the fear of political backlash that may endanger the Convention’s system. This may mean that in its future judgements, the Court is likely to remain cautious, which would be problematic for fair judgements. 

Overall, while undoubtedly doing a good job in mounting greater pressure on Russia from the international community to cease the violations of Georgia’s sovereignty and territorial integrity and take responsibility for its actions, it leaves us guessing how it will be dealing with the other difficult cases – the outcome of them becomes less predictable.

About author: Tetyana Demyanchuk

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