ECtHR Georgia v. Russia No. 2 Judgment to be Delivered on Thursday

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A quick heads-up to our readers that on Thursday, 21 January, the Grand Chamber of the European Court of Human Rights will be delivering its long-awaited judgment in Georgia v. Russia (No. 2), the interstate case dealing with the 2008 conflict in Georgia. We will have commentary on the judgment soon after it comes out. In lieu of a full preview of the case, I would just quickly outline some key issues to keep any eye on as the judgment is handed down:

(1) For the purpose of Russia’s Article 1 ECHR jurisdiction and the extraterritorial applicability of the Convention, whether the Court finds that Russia exercised effective (overall) control over the two separatist entities in Georgia, South Ossetia and Abkhazia, and how it approaches and analyses the relevant evidence (good comparison points in that regard would be the recent admissibility decision re Crimea and the Chiragov judgment re Nagorno Karabakh).

(2) Similarly, but with a greater potential for new developments in the case law, whether Russia exercised effective control over the parts of Georgia proper that it had invaded during the conflict, such as the city of Gori. The main question here is the transience of control (of about 10 days or so) during active hostilities in an international armed conflict. A good comparison point would be the Issa case regarding a Turkish incursion into Northern Iraq.

(3) Whether, by contrast, the Court employs the personal conception of jurisdiction as authority or control over individual victims, as opposed to the spatial model of jurisdiction discussed above.

(4) Whether the Court properly distinguishes between questions of attribution and jurisdiction, and between whether Russia is being held responsible for violating the negative duty to respect human rights or the positive obligation to protect them. This is most relevant for any violations perpetrated by Abkhazian or South Ossetian armed groups. It will also be interesting here to see whether the Court utilizes the ILC Articles on State Responsibility and the relevant jurisprudence of the ICJ (Nicaragua, Bosnian Genocide – see more here, at 342-7, 349-354, 362-6).

(5) What the Court will say generally on the relationship between the Convention and international humanitarian law.

(6) How it will approach the various substantive violations alleged. For what it’s worth, my overall impression is that (issues of evidence aside) this case will not present the most complex of questions of norm conflict between IHRL and IHL, i.e. those issues in which the two bodies of law might go in diverging directions, such as the use of lethal force against combatants. Rather, the case generally deals with acts that would, if proven, clearly constitute violations of both IHRL and IHL (e.g. ill-treatment, killing civilians, pillage etc). I therefore doubt that we’ll see some huge innovation in the jurisprudence here, but I may well be wrong.

(7) What the Court’s bottom line conclusion will be on the extent and nature of Russia’s violations of the Convention. It seems to me highly likely that the Court will find at least some violations of the Convention on the part of Russia. I would be shocked if it didn’t. But much will depend (again depending on what evidence Georgia was able to muster) on whether the Court labels these violations as systematic or sporadic, and as ones of direct perpetration as opposed to a ‘mere’ failure to prevent or investigate. This will determine not only some of the legal consequences of the Court’s findings, but also how the Court’s judgment will fit within the two parties’ opposing narratives about the conflict and how the two parties will react politically to the judgment.

(8) Obviously, the size of the majority and the content of separate opinions will have some bearing on all of the points above.

In any event, this will likely be one of the most important judgments to be delivered by the Court. Let’s see what they say.

Disclosure: In 2014, I was briefly retained by Georgia as part of its legal team in the written pleadings stage of the case, but I have not had any involvement with the case since. To be clear, none of my comments above are based on any inside knowledge.

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