European Court of Human Rights (Grand Chamber): In its judgment delivered on 21st January, the Grand Chamber of ECHR, after detailed deliberation and appreciation of evidences, found Russia to be guilty of human rights violations in the 2008 “August War” with Georgia. The said violations included killing and torturing of civilians; the torching and looting of houses in Georgian villages in South Ossetia and in the buffer zone; inhuman and degrading treatment; administrative practice as regards the conditions of detention of Georgian civilians and the humiliating acts to which they were exposed; administrative practice as regards their arbitrary detention; and, acts of torture meted out to the Georgian prisoners of war. These acts of violations also meant that Russia violated several key Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter- the Convention).
Background of the Dispute
The “August War” of 2008, Ceasefire and Casualties: South Ossetia and Abkhazia are disputed territories within Georgia. The instant matter is in regards to the armed conflict that occurred between Georgia and the Russian Federation about 13 years ago, following an extended period of mounting tensions, provocations and incidents between the two countries. The confrontation developed into a combined inter-state and intra-state conflict between Georgian forces on one side and Russian forces along with South Ossetians and Abkhaz fighters. In August 2008, Georgian artillery attacked Tskhinvali (administrative capital of South Ossetia). Russia invaded as well and soon the invasion progressed to engulf all of Abkhazia and South Ossetia; the village of Perevi (Sachkhere district), situated in undisputed Georgian territory, and the buffer zone, including the zones bordering South Ossetia and Abkhazia, situated in undisputed Georgian territory.
Subsequently, a ceasefire agreement was concluded on 12-08-2008 between the Russian Federation and Georgia under the auspices of the European Union, providing, inter alia, that the parties would refrain from the use of force; immediately end hostilities; provide access for humanitarian aid; and that Georgian and Russian military forces would withdraw to their usual bases and lines prior to the outbreak of hostilities. The then President of Russia Dmitry Medvedev, by a decree, recognised South Ossetia and Abkhazia as independent States.
Georgia claimed to have lost 170 servicemen, 14 policemen and 228 civilians killed and 1,747 persons wounded. The Russian side claimed losses of 67 servicemen killed and 283 wounded. The South Ossetians lost around 365 persons. More than 100,000 civilians, who were residing in the nearby villages, were displaced and forced to become refugees. Several instances of human rights violations were reported, including illegal detention in dire conditions of some 160 civilians (mostly women and elderly people) for approximately fifteen days; allegations of killings, ill-treatment, looting and burning of homes by the Russian armed forces and South Ossetian forces; alleged ill-treatment and torture of more than thirty prisoners of war by Russian and South Ossetian forces in August 2008.
The Legal Route: Georgia thus filed an application against the Russian Federation with the ECHR under Article 33 of the Convention on the grounds of indiscriminate and disproportionate attacks against civilians and their property on the territory of Georgia, by the Russian army and/or the separatist forces placed under their control. They further alleged that the Russian Federation had permitted the existence of an administrative practice resulting in a violation of Articles 2, 3, 5, 8 and 13 of the Convention; Articles 1 and 2 of Protocol 1, and Article 2 of Protocol 4. They also alleged that despite the indication of interim measures the Russian Federation continued to violate its obligations under the Convention and, was in continuous breach of Articles 2 and 3 of the Convention.
Contentions by the Parties
The applicant Government (Georgia) raised the following contentions-
- The violations of the Convention fall within the jurisdiction of the Russian Federation under Art. 1 as it exercised effective authority and control over the relevant areas where the violations took place and/or exercised jurisdiction through state agent authority and control.
- The violations form part of a repetitive pattern of acts and omissions that amount to an administrative practice incompatible with the Convention.
- Russia has failed to carry out investigations into the incidents forming the basis of these violations.
Per contra, the respondent Government (Russia) contended that-
- Allegations relate to alleged events that took place outside the jurisdiction of the Russian Federation and outside Russia’s effective control.
- Georgia’s case relates substantially to alleged conduct of Russian armed forces in an armed conflict and the immediate aftermath of an armed conflict which Georgia started by its attack upon South Ossetia and Russian peacekeepers and nationals in South Ossetia. Russia’s military response was legitimate under public international law and international humanitarian law.
- Georgia’s allegations of human rights abuse is exaggerated and lacks evidentiary support.
Observations of the Court
While admitting and considering the application, the Court noted the other relevant international humanitarian laws- The Hague Regulations, 1907 and Geneva Convention, 1949 and Additional Protocol. Upon a thorough examination of evidences presented by the parties (including Report of the EU Fact-Finding Mission published in 2009), the Court made significant observations on some of the following key issues-
Regarding jurisdiction- It was noted that the Court needs to determine whether the events which occurred during the active phase of the hostilities fell within the jurisdiction of the Russian Federation. Two main criteria established by the Court in this regard are – effective control” by the State over an area (spatial concept of jurisdiction) and “State agent authority and control” over individuals (personal concept of jurisdiction). In the event of military operations carried out during an international armed conflict, one cannot generally speak of “effective control” over an area. It was reiterated that acts of the Contracting States performed, or producing effects, outside their territory can only in exceptional circumstances amount to the exercise by them of their jurisdiction within the meaning of Article 1 of the Convention. Where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘legal space of the Convention’. Whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure rights and freedoms.
Treatment of detained civilians: Considering Georgia’s allegation regarding illegal detention of civilians thus violating Articles 3 and 5 of the Convention, the Court stated that the justification provided by the respondent Government that “the civilians were detained ‘to ensure their security”, is not permitted under Article 5 of the Convention or under the relevant provisions of international humanitarian law. It was noted that there is no dispute as to the detention of civilians (mostly women and elderly) by the South Ossetian forces in the basement of the “Ministry of Internal Affairs of South Ossetia”. The Court also observed that the detainees fell within the jurisdiction of the Russian Federation within the meaning of Article 1 of the Convention. The Court considered the reports submitted by The Amnesty International and Human Rights Watch and testimonies of the Georgian civilians all of which pointed out the ‘extreme’ lack of space and sanitary facilities available in the place that held the detainees. The Court further observed that the witness accounts and reports mention that some of the detainees were subjected to vexatious and humiliating measures by their captors; “The Russian officials confirmed at the witness hearing that some of the male detainees had been obliged to clean the streets of Tskhinvali, and that they had even “volunteered” to do so in order to escape their poor conditions of detention”. The Court reiterated that, “Article 3 does not refer exclusively to the infliction of physical pain but also of mental suffering, which is caused by creating a state of anguish and stress by means other than bodily, which was undeniably the case regarding the treatment suffered by the Georgian detainees”.
Observing that witnesses and reports revealing the presence of Russian forces in the building, which does not clearly demonstrate the direct involvement of Russian forces in the inhuman treatment; however the fact that the civilians fell within the jurisdiction of Russia, makes the Federation responsible for the actions of the South Ossetian authorities, without it being necessary to provide proof of “detailed control” in respect of each of their actions.
Treatment of PoWs: Georgian prisoners of war were detained in Tskhinvali between 8 and 17 August 2008 by South Ossetian forces. Given that they were detained, inter alia, after the termination of hostilities, it was concluded by the Court that they fell within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention. It was also observed that there is a sufficient evidence to conclude beyond reasonable doubt that Georgian prisoners of war were victims of treatment contrary to Article 3 of the Convention inflicted by the South Ossetian forces. “Even if the direct participation of the Russian forces has not been clearly demonstrated in all cases, since it has been established that the prisoners of war fell within the jurisdiction of the Russian Federation on account of the “strict control” that it exercised over the South Ossetian forces, it was also responsible for the latter’s actions”.
Obligation to investigate: It was observed that the Russian Federation had an obligation to carry out an investigation concerning systematic campaign of killings of civilians after the cessation of hostilities. Even though the events which occurred during the active phase of the hostilities did not fall within the jurisdiction of the Russian Federation; however, a jurisdictional link in relation to the obligation to investigate under Article 2 could be established if the Contracting State had instituted an investigation or proceedings in accordance with its domestic law in respect of a death which had occurred outside its jurisdiction, or if there were “special features” in a given case. Since the jurisdiction of Russian Federation within the meaning of Article 1 has been established, therefore the Court dismissed Russia’s objection against the obligation. “Having regard to the seriousness of the crimes allegedly committed during the active phase of the hostilities, and the scale and nature of the violations found during the period of occupation, the Court considers that the investigations carried out by the Russian authorities were neither prompt nor effective nor independent. Therefore, there has been a violation of Article 2 of the Convention in its procedural aspect”.
Displaced persons: The Court also observed that the Georgian nationals who were prevented from returning to South Ossetia or Abkhazia by the de facto authorities of those regions fell within the jurisdiction of the Russian Federation. It was furthermore observed that there was an administrative practice contrary to Article 2 of Protocol No. 4 as regards the inability of Georgian nationals to return to their respective homes.
Decision/ Conclusion: Based on the aforementioned observations on certain key aspects of the dispute, The Court was unanimous in concluding that Article 3 of the Convention was violated as regards the conditions of detention of 160 Georgian civilians and the humiliating acts to which they were exposed, which caused them undeniable suffering and must be regarded as inhuman and degrading treatment. The Court with a ratio of 16:1 also concluded that the events which occurred after the cessation of hostilities (from the date of the ceasefire agreement of 12 August 2008) fell within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention; and there was an administrative practice contrary to Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1 as regards the killing of civilians and the torching and looting of houses in Georgian villages in South Ossetia and in the buffer zone.[Case of Georgia v. Russia [II], Application no. 38263/08, decided on 21-01-2021]
Sucheta Sarkar, Editorial Assistant has put this story together
