Human rights as a weapon

Photo by: Tomasz Lachowski

Although there is a difference between Russian treatment of these territories, Moscow openly admitted occupation of the Crimean Peninsula (they call it the “liberation” of Crimea and even changed their constitution to sanction the annexation), but with reference to ORDLO, Russia invariably refuses to confirm that the forces of the so-called Donetsk (DNR) and Luhansk People’s Republics (LNR) are in fact either Russian troops or supported and controlled by Kremlin.

Russia – like Ukraine – is a state party to the European Convention on Human Rights, though is it possible to talk about Russia’s legal responsibility for human rights violations since its aggression against Ukraine occurred on the territory of Ukraine, not Russia itself?

We need to remember that since the landmark Banković case – held before the European Court of Human Rights in Strasbourg concerning the NATO bombing of a building used by the Serbian public TV broadcaster in Belgrade during the Kosovo crisis in 1999 – a general rule says that a state is responsible for its own territory, but not for the territory of another state. Although there are some crucial exceptions, like when part of the territory is occupied (even if the Court in Strasbourg does not use the term “occupation”, replacing it with the phrase “general overall control”). Thus, if a country controls certain territory it should uphold human rights protection that is guaranteed by the European Convention, like what was found in cases concerning the outcome of the Turkish invasion of Cyprus in the 1970s and the establishment of the Ankara-backed Turkish Republic of Northern Cyprus. The Strasbourg Court is very pragmatic in such matters – a control is a matter of fact rather than law. Therefore, if a state admits such control over a territory (even outside its borders), the Court does not go deeper into the details of what legal basis it invoked. As a result, there should not be many doubts about whether Russia is obliged to protect human rights under the European Convention on Human Rights in Crimea. The only possible issue is an initial date when the ECHR should have been applied. Ukraine is in dispute with the Russian Federation on that question – we argue that Russia factually controlled Crimea since February 26th/27th 2014, while Moscow claims March 21st 2014 as the first day of Russian presence on Peninsula.

According to your words, at least in theory, the question of Crimea is clear when it comes to the application of human rights obligations of Russia towards the residents of the peninsula. Nonetheless, the question still remains open concerning the part of occupied Donbas, where the two para-states of DNR and LNR were established, and being not incorporated into the Russian Federation. How does the ECHR deal with such a problem?

If the country does not openly admit that it controls a certain territory or, in parallel, picks the argument of the presence of a state-like administration – which very often claims to be an independent state, like the Turkish Republic of Northern Cyprus, Nagorno-Karabakh or Transnistria – the Strasbourg Court shall determine the scope of control provided by the protector state. By virtue of the presence of Turkish troops in Northern Cyprus or Russian troops in Transnistria, the Court found that such para-states are effectively under the general control of another state. In our examples: Turkey or the Russian Federation. A bit more problematic was the issue of Nagorno-Karabakh, where the European Court was unable to establish, with sufficient degree of certainty, the direct presence of Armenian troops there. Nonetheless, the judges in Strasbourg went a step further and said that the presence of troops is indeed a significant indicator; furthermore, economic and political support can be sufficient for establishing effective control of a certain territory, if the military presence is too difficult to prove.

In the above-mentioned examples of Transnistria and Nagorno-Karabakh, and in spite of the self-proclaimed republics’ illegal activities, we have a “mother state” (like Moldova or Azerbaijan), still possessing legal obligations in the field of human rights over the residents of the breakaway regions. What is their scope?        

In cases concerning Transnistria (i.e. Ilașcu v. Moldova), the Strasbourg Court found that a de jure state (such as Moldova) cannot be fully exonerated of its legal obligations regarding human rights protection. To make it clearer, we can show an example: on the one hand, if the local administration in Transnistria (controlled by the Kremlin) unlawfully holds someone as a prisoner, Moldova is not responsible for that. That is called a negative obligation. On the other hand, Moldova may be found responsible for a lack of effort in liberating such a person – we call this a positive obligation. In the Ukrainian context, many cases were filed by Ukrainian soldiers who were captured in the aftermath of the Battle of Ilovaisk in August 2014 and held unlawfully by the DNR administration, placed in terrible conditions and tortured. In spite of the impossibility of saying Ukraine is directly responsible for their suffering, it was argued that the Kyiv authorities are guilty of not making a strong effort to investigate these cases and liberate victims. The Ukrainian government, represented by me, indicated that the state did its utmost to free those soldiers and basically succeeded – now we are awaiting the final judgments in Strasbourg.

The European Court of Human Rights has issued several judgments in which it did not find Ukraine responsible for human rights violations in Donbas. Is it possible to predict if and when the Court in Strasbourg determines Russian responsibility towards the events in Donbas, as it did concerning the cases with respect to Transnistria?

There were two cases – Khlebik with regard to the Luhansk district and Cezar and others concerning Donetsk – in which the European Court of Human Rights stated a couple of important things to us. First, by admitting that Ukraine is not responsible for the human rights violations witnessed in the uncontrolled territory. Second, by stating that the DNR and LNR are not controlled by Ukraine, and that the authorities in Kyiv have no negative obligations with reference to these territories. That is the first step observed before the Transnistrian cases. The following one, mentioned by you, should try to answer the question: who is responsible for such violations?  

In January 2018 the Ukrainian parliament, the Verkhovna Rada, adopted a special statute, popularly known as the reintegration and de-occupation law of Donbas, in Ukraine. To what extent is your work influenced by this law when you aim to regain full control of ORDLO and define Russia as an aggressor and factual occupant?

I will try to answer the question this way. For us working in the ministry on the direction of human rights protection guaranteed by the convention, the main objective is to prove that, under the ECHR, Russia controls ORDLO (like I said a before, it is matter of facts, not law). The reintegration and de-occupation statute confirms Ukraine’s title to these territories; it obviously helps, but it is not a conclusive prerequisite in our effort to gather evidence in order to show that the Russian Federation controls the DNR and LNR.

We need to remember that many western states have a blurred understanding of what is actually happening in eastern Ukraine. Many people are misled by successful Russian disinformation and propaganda, which are also repeated by many supposed experts or otherwise intelligent people, which is even more terrifying. That is why we need a judgment issued by an international court proving the effective control of ORDLO exercised by the Kremlin.

Do you think your work in Strasbourg can help defeat the above-mentioned Russian narrative and convince public opinion in the West that Ukraine is a victim of Kremlin aggression, while in the East you still face ongoing international armed conflict?

I believe so. It is not as simple as that, of course, but still you can see with the example of Cyprus that the establishment of facts and clarifying legal responsibility for such infringements of rights helped them to join the European Union. I guess that without the ECHR judgment with regards to Donbas, Ukraine’s efforts in joining the EU may become even more complicated.

You mentioned soldiers of the Ukrainian regular army or voluntary troops that are bringing cases before the European Court of Human Rights. Are they the majority of applicants?

They are the majority of applicants in cases already communicated to us, but I would not say they are the majority in general. There are now more than 4,000 cases concerning the events in Donbas and Crimea, but out of those we have seen just 150, about 100 of which are brought by soldiers. At present, 3,000 cases are filed solely against Ukraine, about 1,000 against the Russian Federation and Ukraine, and some others just against Russia.

How do you collect evidence of human rights violations occurring with the uncontrolled territories?

In order to collect evidence on the 2014 hostilities in Donbas we – the ministry of justice – are in contact with other state institutions like the security services, Ukrainian border guard, military personnel and other soldiers. We interview victims and witnesses, collect their oral testimonies, and try to secure as much photo and video footage as possible (and identify them). In addition, we contact and use research from the Bellingcat website, which investigates via open sources – for instance the MH17 tragedy. What is more, we try to co-operate with Ukrainian and foreign voluntary groups and journalists working on that matter.

What is your current estimate of human rights violations after the aggression of the Russian Federation?

Altogether we have 50 witnesses with respect to Crimea and a little less than 100 with regard to Donbas, although it only covers the events of 2014. To give you an example of the cases we are dealing with right now, I can recall a story by a journalist working in Crimea during and after the annexation. He explained to us how he was apprehended by the local police, then transferred, without any official criminal record, to the self-proclaimed Crimean Self-Defence forces (a spontaneously formed group operating without legal recognition or authority) and finally handed to Russian troops of the Black Sea Fleet, thus becoming a hostage. Cases like this are clear proof of human rights violations conducted by the Russian army, for which the Russian Federation should be held responsible by the Court in Strasbourg. We also have evidence regarding Russian operations leading to the annexation of Crimea conducted before February 2014. According to our sources, we have really clear evidence of January 2014 as the first month in which Russians started preparing themselves for the aggression, at a time when Viktor Yanukovych still possessed tight control over the country.

You mentioned the downing of the MH17 in July 2014. It is necessary to emphasise that the Dutch investigation quite recently concluded that the shooting down of the Malaysian Airlines plane should be attributed to the Russian Federation. How has this affected your work in the field of human rights? I ask this question, since some of the victims’ family members announced they would sue Ukraine before the Court in Strasbourg?

There are, again, two aspects of this story. The downing of MH17 itself – if spoken with the language of human rights – might be seen as a violation of Article 2 of the ECHR (concerning the right to life), possibly attributed to the Russian Federation (either directly, or through establishing a Russian control over pro-Russian rebels). Another aspect is the case brought by German nationals you talked about, filed in Strasbourg. Applicants do not blame Ukraine for shooting down the plane. At the same time, they claim that by not closing their airspace the Ukrainian state violated Article 2 of the Convention, although they have not exhausted domestic remedies before the Ukrainian courts, which is the general duty of each and every applicant. Interestingly, they did it quite openly, saying that there are no other domestic remedies in Ukraine. In other words, they argued that the courts are ineffective. We do not agree with such a statement. The court shall determine this factor in the initial phase of proceedings, however at present we did not receive any binding information from Strasbourg on the matter.

Quite recently you have filed another important lawsuit to the European Court of Human Rights against Russia over political prisoners unlawfully held in the Russian Federation, including the famous filmmaker Oleg Sentsov. For over four months, Sentsov has been on a hunger strike. What are the details of your lawsuit?

We filed an inter-state application regarding the numerous violations of human rights of Ukrainian political prisoners. We have identified about 100 people currently persecuted by the Russian authorities for their pro-Ukrainian or anti-annexation views. There are several groups of prisoners: those referred to as “Chechen cases”, meaning the Ukrainian citizens such as Stanislav Klykh who were randomly picked up by the Russian authorities and falsely accused of participation in the first Chechen war of the mid-1990s; the “Crimean Four” – the pro-Ukrainian activists, such as Sentsov, who openly opposed the annexation of Crimea in 2014 and were accused of terrorism, tortured and arbitrarily tried; the “Crimean terrorists” – the Ukrainian citizens who visited Crimea after the annexation and were randomly arrested by the Russian police on terrorism charges; Hizb Ut-Tahri activists – the Ukrainian citizens residing in Crimea who are members of the organisation, which is not prohibited in Ukraine but prohibited in Russia; and, lastly, the Right Sector cases – Ukrainian citizens visiting the Russian Federation accused by the authorities of participating in Right Sector or other lawful Ukrainian organisations prohibited in Russia.

The Russian police and security forces, the court and prosecution demonstrate certain “patterns” when treating Ukrainian political prisoners. They are tortured for evidence; the trials are based on self-incriminating evidence obtained by torture and the evidence of other persons, also extracted by torture or intimidation; political views are the targets of prosecution, sometimes camouflaged by falsified ordinary crimes and sometimes explicitly demonstrative of political persecution. The main objective of Ukraine at this stage is to prove the systematic nature of these practices in suppression of the pro-Ukrainian political sentiments and the intimidation of those who hold them.   

To sum up our conversation, do you think that Russia would accept and enforce a judgment issued by the Strasbourg Court, stating its legal responsibility for human rights violations on the territory of Ukraine? Or should such an anticipated judgment be perceived more as a symbolic instrument of a victory leading to the change of people’s minds – for instance, the western countries you talked about before?

I believe that once a judgment of the European Court of Human Rights confirming the control of Crimea and Donbas by Russia is issued, it will change a lot, including terms of geopolitics. A judgment of an international court cannot simply be ignored, and other states willing to act in compliance with international law shall abide by it. All of those stories of civil war and internal riots may be more easily overcome by referring to the concrete binding judgment. Therefore, our work, even though legally speaking quite narrow, can positively affect many dimensions of the Ukrainian situation on the international scene – even in the political sense.    

Ivan Lishchyna is the Ukrainian deputy minister of justice and the commissioner for the European Court of Human Rights. On June 28th 2018 he became an Honoured Lawyer of Ukraine (an honorary title granted by the president of Ukraine).

Tomasz Lachowski is a lawyer and journalist. He has a PhD in international law from the University of Łódź and is the editor in chief of the Polish online magazine Obserwator Międzynarodowy (International Observer).

Donbas, Ivan Lishchyna, war in Ukraine