Europe’s Kairos? The Role of the Council of Europe under a Negotiated Peace in Ukraine

In a seminal speech to the Consultative Assembly of the Council of Europe in 1954, Germany’s Federal Chancellor and Chairman of the Committee of Ministers, Konrad Adenauer, exhorted member states to respond to matters of common concern with courage and confidence, and insisted that ‘any weakening in our zeal, in our striving to fulfil what we have begun, will spell retrogression, and will indeed jeopardize the entire structure.’ As Europe witnesses Russia’s devastating war in Ukraine, in flagrant violation of the Statute of the Council of Europe (CoE), Adenauer’s words seem particularly poignant. This is Europe’s kairos, the defining moment in the CoE’s history that will either mark the beginning of the downfall of Europe’s human rights framework, or the moment at which that system was given a renewed sense of purpose. Only the Member States can determine which will prevail.

Recent events have raised numerous difficult questions for Europe’s human rights protection system. Beyond Russia’s expulsion, how will the organisation respond to the war? What role could or should the CoE play in post-conflict Ukraine? Does it have the authority, capacity and the legitimacy to do so? What about ECHR rights-holders in occupied territories? This article will begin to offer initial reflections on some of these principal issues.

Identifying a value-added role for the CoE

Tremendous damage has been done to Ukrainian society, infrastructure and economy since 24 February, but also to its institutional framework, justice system and broader public administration. These systems are the backbone of democracy, and require urgent support. The objective is not only their functional restoration, but significant reform and improvement over time.

As the horrors of Bucha become clear it feels offensive to discuss post-conflict Ukraine. But we must. The international community must be ready to support Ukraine to rebuild its democracy and rule of law systems as soon as the guns fall silent.

Democratic deficiencies will exacerbate the tremendous suffering of people, impede access to justice and will stifle recovery. Consideration must be given to the precarious situation of tens of thousands of ECHR rights-holders in any territories still occupied by the Russian Federation, when hostilities end. The CoE is uniquely placed, by statutory mandate and organisational experience, to contribute on both fronts, drawing on its human rights acquis.

Ukraine applied to join the CoE in 1992 at a time when the Iron Curtain still cast a long shadow and the economy was experiencing a deep recession. Despite this, its accession in 1995 was a moment of celebration. Post-accession commitments as set out in PACE Opinion No. 190 aimed at improving the situation of democracy, human rights and the rule of law to satisfy the statutory requirements of Article 3. The assistance was also designed to take account of relevant judgments of the European Court of Human Rights, and covered areas like judicial reform, fighting ill-treatment and impunity, anti-corruption, and media freedom. The strong CoE field office presence played an important role, enabling delivery of cooperation programmes and the maintenance of dialogue with national authorities. Progress was achieved, but there was much work still to do. The CoE Action Plan for Ukraine 2018-2022 was being recently updated, but now requires comprehensive review and reorientation.

Crucially, over the years the CoE has shown that it has the capacity, expertise, relationships, and the trust of Ukrainian partners to serve as a force for progress. The speed of the CoE’s recent responses, including at Official level, further demonstrates the CoE’s commitment to Ukraine. These actions are not just declaratory, they create a strong basis for action. Within the scope of its expertise and resources, and in partnership with the EU, OSCE, UN and others, the CoE has the capacity to meet some of Ukraine’s immediate and many longer-term support needs.

To do so, the CoE needs to articulate its added-value role amongst other international organisations. The Committee of Ministers (CM) must unreservedly support a proactive mobilisation of the CoE’s capacities for Ukraine, politically and financially. And finally, the organisation needs to secure a legitimate basis for any action in post-war Ukraine.

Establishing a basis for post-conflict cooperation

Europe’s multilateral human rights system has failed Ukraine. If the architecture had worked, war would not have happened. Furthermore, even in relative peacetime, the CoE has been unable to meaningfully engage with contested territories in Ukraine. In that context, the CoE cannot assume that it possesses the inherent legitimacy to act proactively, on-site. Any future role therefore should be legitimised through a decision of the CM and explicit reference in any eventual EU, OSCE or UN mandate for Ukraine. The CoE is not a humanitarian organisation, but its expertise is unique and complementary to any future peace-keeping or reconstruction mission. Past experience is instructive in this regard.

The CoE failed to secure the appropriate legitimisation in Kosovo, neither coming explicitly within the remit of UN Security Council Resolution 1244 nor the associated mandate of the OSCE Mission in Kosovo. Instead, its action in Kosovo was facilitated by an exchange of letters between Bernard Kouchner, then UN Special Representative for the Secretary General, and the CoE Secretary General, Walter Schwimmer (which were never published). A limited range of activities were provided for under OSCE PC Decision 305, specifically related to capacity building for the police. A special monitoring arrangement was established in 2004 between UNMIK and the CoE, supplemented by an exchange of letters with NATO in 2006, enabling the Committee for the Prevention of Torture (CPT) to monitor detention facilities while neither recognising UNMIK as a Party to the Convention nor prejudicing the future status of Kosovo. A similar agreement was reached in relation to the minority rights convention. These agreements were more pragmatic than strategic, but they were innovative and quite effective. The CoE has succeeded in playing a constructive role in Kosovo for many years, thanks to cooperation of international partners and the good faith engagement of the Kosovo authorities. Its flimsy legal basis may not have prevented action, but it did give rise to practical challenges including in relation to the privileges and immunities of staff and experts, which must be avoided in Ukraine.

Contrast this with the reference to CoE in OSCE Perm. Council Decision for Peace and Stability in Bosnia and Herzegovina which provides “the OSCE will consult and co-operate as appropriate with the United Nations, the Council of Europe […] in fulfilling their tasks.” The Dayton Agreement also provided an explicit role for the CoE in relation to the establishment of the Human Rights Chamber of Bosnia and Herzegovina.

A strong legal basis provides clarity and certainty for the CoE, national authorities and third parties. It makes cooperation more efficient and more likely to be effective. Legitimisation of CoE action has operational as well as strategic benefits, and critically may allow greater access to occupied territories over time depending on the final form of the peace agreement.

Forms of Engagement

The CoE’s activities are often low-profile, but high impact. Cooperation can be formal, informal or non-formal in nature. Formal processes such as a request for a Venice Commission Opinion affords the requesting authority with confidence of high quality legal or constitutional advice from a prestigious body of eminent international experts. Informal engagement, for instance through the participation of officials or civil society informal meetings, conferences or networks can allow for information exchange, trust-building and peer network development. Informal contacts can also allow for engagement on highly sensitive matters which would benefit from the CoEs impartial, standards-based expertise. And finally, non-formal processes, for example capacity building trainings are an opportunity to develop knowledge, skills and attitudes in a manner tailored to a specific context but not constrained by more formal monitoring or advisory processes. For example, training of judges and lawyers on ECHR standards, or providing assistance to the National Human Rights Institution or civil society in the conduct of investigations. The CoE can advise on processes of documenting and investigating gross violations of human rights, or can help to secure access to justice for victims.

In post-conflict Ukraine, innovation is required. The CoE could play a role in the establishment of ad hoc or quasi-judicial mechanisms, and could consider seconding or nominating officials to support national authorities or independent institutions such as the Ombudsman. It has done so in the past in Kosovo, Bosnia and Herzegovina and elsewhere.  Additionally, the Commissioner for Human Rights will have several important functions, including potentially as a third party intervener before the Court in cases related to the atrocities in Ukraine in due course. The Conference of INGOs, the platform for the protection of journalists and the Confidence Building Measures programme, will all have particular merits in post-conflict Ukraine as will many other parts of the CoE including of course the PACE and Congress.

Occupied Territories and the Legacy Challenge of Human Rights Grey Zones

In an address to the Parliamentary Assembly on 14 March, the CoE Secretary General emphasised that the CoE is not a security organisation and could not stop the aggression in Ukraine. Instead, she invited all to “ask ourselves how we can do what is right, what influence we can exert to make things happen.” The time has surely come for the CoE to focus on what its mandate does encompass, rather than over-emphasising what it does not.

The situation facing occupied parts of Ukraine is deeply troubling. Instead of the conflict being between two CoE state parties, who can avail of the platforms for dialogue provided for by the Committee of Ministers (CM) and the Parliamentary Assembly (PACE), it involves a third party. Hitherto, Donetsk and Luhansk, like other ‘grey zones’ such as Transnistria, Nagorno-Karabakh and Northern Cyprus, came within the jurisdiction of a CoE territorial state but the effective control of another CoE member state. With Russia’s departure from the CoE/ECHR the circumstances have profoundly changed removing the formal platform for engagement on rights protection in these regions bringing a new and dangerous dynamic. This creates significant uncertainty for the ECHR rights-holders in the affected territories.

The state of being occupied doesn’t diminish the positive obligations on the territorial state, nor the collective responsibility of the CoE to ensure the ECHR is practical and effective in those territories. Restoring dialogue with Russia and engaging with functional authorities, civil society, academics and others in occupied regions, formally, informally and non-formally may not be a popular proposition, but it is essential and urgent.

More generally, the CoE should now finally reflect on its policy towards ‘grey zones’, which was conspicuously absent from the Interlaken Process as well as the work on ECHR effectiveness. Prior to the most recent invasion by Russia, there were at least nine regions in Europe where the territorial state did not enjoy full and effective control, and where as a consequence CoE monitoring and advisory mechanisms such as the Commissioner for Human Rights or the CPT have been unable to engage in a meaningful way, or at all. The rich case law from these regions has been subject to much academic debate (see here, here and here), but has had extremely little practical effect. Amongst these regions were Crimea, Donetsk and Luhansk, but many others came within Russia’s sphere of influence. Elsewhere I have discussed the systemic challenge of the ‘grey zones’ for the ECHR system and attempted to distinguish political challenges which the CoE has little or no influence over (e.g. negotiating peace), from operational ones which the CoE can, should and must engage with (e.g. securing access for monitoring, engaging with civil society and independent institutions). The fact that Donetsk and Luhansk were explicitly misused as a pretext for war underscores the risk these grey zones pose to European public order.

There are compelling reasons for grey zones to become an explicit policy priority for the CoE and future CM Chairmanships. The organisation’s approach to engagement with the “Neighbourhood” could serve as a useful reference point, where it seeks to facilitate democratic transition, good governance, and combating trans-frontier threats. Any engagement must be status neutral, based on the rule of law and underpinned by fundamental principles enshrined in the Statute and ECHR.

Conclusion

How the CoE responds to Russia’s war in Ukraine, and what it does in relation to articulating a new political vision will provide the basis of a new, unpredictable Chapter in the organisation’s history. This is its Kairos moment. The CoE can support short term and longer-term human rights and rule of law needs in Ukraine. It has the authority and capacity to do so, but whether it has the legitimacy and political backing depends on it articulating its added-value role and not being restricted by an overly cautious interpretation of its mandate. There is a real risk that what might have been human rights ‘grey zones’ in the past, such as in the Donbas, become veritable vacuums of protection, unprecedented in the CoE’s history. The CoE’s political capacities are limited, but given the vulnerabilities of the Statute now is the time to proactively articulate a vision of what it can do under a negotiated peace in Ukraine as well as its views on human rights protection in contested territories.

It would be a mistake to think that this issue does not have possible parallels elsewhere. Grey zones are not necessarily a synonym for war. What would become of the ECHR in Northern Cyprus were Turkey to withdraw from the CoE or in Northern Ireland if the UK was to rescind the Convention? Now is not the time for starry eyed hope. It is the time to take stock of the ECHR protection machinery in light of an existential threat to the system. The ECHR system needs to be fully mobilised for Ukraine based on the expressed needs of the Ukrainian government, independent institutions and civil society, but also needs now to reinforced for the sake of everyone in Europe. If we do not seize this moment to reflect and rebuild, we risk jeopardising the entire structure, just as Adenauer warned.