Just before the holidays the European Court of Human Rights rendered two important decisions in cases against the Russian Federation. First, a Chamber declared admissible the second interstate application filed by Georgia against Russia (Georgia v. Russia No. 2, App. No. 38263/08, available here). The case arises out of the 2008 armed conflict between Georgia and Russia; in the words of the Court, ‘The applicant Government submitted that, in the course of indiscriminate and disproportionate attacks by Russian forces and/or by the separatist forces under their control, hundreds of civilians were injured, killed, detained or went missing, thousands of civilians had their property and homes destroyed and over 300,000 people were forced to leave Abkhazia and South Ossetia. In their submission, those consequences and the subsequent lack of any investigation engaged the Russian Federation’s responsibility under Articles 2, 3, 5, 8 and 13 of the Convention, Articles 1 and 2 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.’
The cases raises important questions regarding the extraterritorial application of the ECHR, attribution of conduct by the separatist entities in Georgia to the Russian Federation, and the interplay between the Convention and international humanitarian law. Rather than deal with these matters in its admissibility decision, the Court quite rightly decided to deal with them on the merits (see esp. paras. 63-68, 71-75 of the decision). Importantly, the Court noted the lack of any derogation by the two states in the context of the armed conflict. This is bound to be a big one – and it seems likely that the Chamber will relinquish its jurisdiction to the Grand Chamber of the Court. (Another big case on the extraterritorial application of the ECHR is coming up for hearing before the Grand Chamber at the end of this month – Catan and Others v. Moldova and Russia (nos. 43370/04, 8252/05 and 18454/06). Dealing with human rights violations by the separatist Transnistrian authorities in Moldova, this is a sequel to the Ilascu case decided by the Court a few years back.)
Secon, there was the unanimous Chamber judgment in the Dubrovka theatre case – Finogenov and others v. Russia, nos. 18299/03 and 27311/03, press release, judgment). The case concerned the siege of the Dubrovka theatre by Chechen separatists in October 2002, when over 40 heavily armed terrorists equiped with explosives held almost a thousand people hostage in the theatre. The siege was (in)famously ended when the Russian authorties used an opiate gas to knock the terrorists out before storming the place, with the gas causing the deaths of 125 hostages. The families of some of these hostages lodged the application with the Court, claiming a violation of Article 2 ECHR by Russia. The Court held that there had been no violation of the Convention regarding the use of force and gas against the terrorists. It did, however, find that the rescue operation had not been well planned or implemented.
The case is very fact-specific, but I think I can say with some certainty that this will be a new leading case in the Article 2 pantheon, up there with McCann. It is notable for several developments. For example, despite Russia’s completely unsatisfactory cooperation with the Court in establishing the factual record (e.g. the documents of the Russian team that led the operation were all destroyed; Russia failed to answer the Court’s specific factual questions; Russia never disclosed exactly which gas it used, and so forth), the Court was prepared to be extremely deferential and flexible on the factual issues. Indeed, the Court almost entered an ‘IHL-mode’, quite explicitly deciding not to second-guess the Russian autorities’ decision to use force generally in order to subdue the terrorists, and their specific decision to use the opiate gas. The Court found a violation only because the medical rescue operation that followed the storming was manifestly poorly planned, with the authorities for example not even informing the doctors beforehand of the use of the gas. Some choice paragraphs are reproduced below the fold. Most importantly, the fact that the Court quite explicitly based its deferential approach on the Chechen Isayeva case dealing with the indiscriminate use of force shows much promise in providing needed flexibility in other factually complex cases that transcend conditions of normalcy, as e.g. in Georgia v. Russia. The Court awarded more than a million euros in compensation, and it is likely that Russia will appeal to the Grand Chamber – we’ll see what happens.
201. The official explanation of the mass death of the hostages on 26 October 2002 was that all the persons who had died were weakened by the siege or seriously ill. The official experts in their report concluded that there was no “direct causal link” between the death of those 125 people and the use of the gas, and that the gas was just one of many factors which led to such a tragic outcome (see paragraph 99above). The Court will not call into question the interim conclusions of the domestic experts on the medical condition of each particular victim. However, the Court considers that the general conclusion of the expert report, if applied to all the deceased hostages (except those shot by the terrorists), is difficult to accept. It is unthinkable that 125 people of different ages and physical conditions died almost simultaneously and in the same place because of various pre-existing health problems. Equally, the mass death of hostages cannot be attributed to the conditions in which they had been held for three days, during which none of them had died, despite prolonged food and water deprivation, immobility, psychological stress, etc. Further, the Government themselves admitted that it had been impossible to foresee the effects of the gas, and had considered that some losses had been unavoidable (see paragraph 194 above). This implies that the gas was not “harmless”, because “harmless” means that it does not have important adverse effects.
202. The Court accepts that the gas was probably not intended to kill the terrorists or hostages. It was therefore closer to “non-lethal incapacitating weapons” than to firearms (see in this respect the distinction made by the Basic Principles on the Use of Force and Firearms, cited in paragraph 162 above). This is an important characteristic of the gas; the Court will return to it in its further analysis. For the time being, the Court does not need to decide whether the gas was a “lethal force” or a “non-lethal weapon”. As transpires from the Government’s submissions, and as the events of the case clearly show, the gas was, at best, potentially dangerous for an ordinary person, and potentially fatal for a weakened person. It is possible that some people were affected more than others on account of their physical condition. Moreover, it is even possible that one or two deaths amongst the applicants’ relatives were natural accidents and were not related to the gas at all. Nevertheless, it is safe to conclude that the gas remained a primary cause of the death of a large number of the victims.
203. In sum, the present case is about the use of a dangerous substance (no matter how it is described) by the authorities within a rescue operation which resulted in the death of many of those whom the authorities were trying to liberate and in mortal danger for many others (in respect of that latter group of applicants see, mutatis mutandis, Makaratzis v. Greece [GC], no. 50385/99, §§ 49-55, ECHR 2004-XI). The situation is thus covered by Article 2 of the Convention. The Court has now to examine whether the use of force was compatible with the requirements of this provision.
212. The Court is acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, and recognises the complexity of this problem (see Ramirez Sanchez v. France [GC], no. 59450/00, § 115, ECHR 2006-…). In the more specific Russian context, terrorism by various separatist movements in the North Caucasus has been a major threat to national security and public safety in Russia for more than fifteen years, and fighting terrorism is a legitimate concern of the Russian authorities.
213. Although hostage taking was, sadly, a widespread phenomenon in recent years, the magnitude of the crisis of 23-26 October 2002 exceeded everything known before and made that situation truly exceptional. The lives of several hundred hostages were at stake, the terrorists were heavily armed, well-trained and devoted to their cause and, with regard to the military aspect of the storming, no specific preliminary measures could have been taken. The hostage-taking came as a surprise for the authorities (see, in contrast, the case of Isayeva v. Russia, no. 57950/00, §§ 180 et seq., 24 February 2005), so the military preparations for the storming had to be made very quickly and in full secrecy. It should be noted that the authorities were not in control of the situation inside the building. In such a situation the Court accepts that difficult and agonising decisions had to be made by the domestic authorities. It is prepared to grant them a margin of appreciation, at least in so far as the military and technical aspects of the situation are concerned, even if now, with hindsight, some of the decisions taken by the authorities may appear open to doubt.
214. In contrast, the subsequent phases of the operation may require a closer scrutiny by the Court; this is especially true in respect of such phases where no serious time constraints existed and the authorities were in control of the situation.
215. Such a method of analysis is not new: it has been applied, for instance, in the case of Isayeva, cited above, § 180 et seq. In that case the Court held that “given the context of the conflict in Chechnya at the relevant time, the [anti-insurgency] measures could presumably include the deployment of army units equipped with combat weapons, including military aviation and artillery”. That finding did not prevent the Court from concluding that the Convention had been breached on account of the indiscriminate use of heavy weapons by the military, their failure to prevent the Chechen insurgents from entering the village, their failure to secure the safety of the “humanitarian corridor”, etc. However, by accepting that the use of the army in such conflicts was justified the Court drew a clear line between the strategic political choices (use of military force in Chechnya), which were not within the Court’s realm, and other aspects of the situation, which the Court was able to examine.
216. The Court does not suggest that the present case is similar to Isayeva; quite the contrary, there are major differences between these two cases. Thus, in the present case the hostage-taking came as a surprise for the authorities, the hostages themselves were in a more vulnerable position than the civilians in Isayeva, and the choice of means (gas) by the authorities was less dangerous than in Isayeva (bombs). What the Court intends to do is to adopt the same methodological approach as in Isayeva and apply different degrees of scrutiny to different aspects of the situation under examination.
219. The question is whether those aims could have been attained by other, less drastic, means. The applicants alleged that it had been possible to resolve the hostage crisis peacefully, and that nobody would have been killed if the authorities had pursued the negotiations. In analysing this complaint, the Court must take into account the information available to the authorities at the time of the events. The Court reiterates that use of force by State agents may be justified where it is based on an honest belief which is perceived for good reasons to be valid at the time but which subsequently turns out to be mistaken (see the McCann and Others judgment, cited above, § 200).
220. The Court reiterates that, generally speaking, there is no necessity to use lethal force “where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence” (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 95, ECHR 2005-VII). The Court repeats that the situation in the present case was quite different: the threat posed by the terrorists was real and very serious. The authorities knew that many of the terrorists had earlier participated in armed resistance to the Russian troops in Chechnya; that they were well-trained, well-armed and dedicated to their cause (contrast with the case of Andronicou and Constantinou v. Cyprus, 9 October 1997, § 183, Reports 1997-VI, where the Court emphasised that the hostage-taker was not a “hardened criminal or terrorist”); that the explosion of the devices installed in the main auditorium would probably have killed all of the hostages; and that the terrorists were prepared to detonate those devices if their demands were not met.
221. It is true that the terrorists did not activate the bombs after the gas was dispersed, although some of them remained awake for some time. However, it is mere speculation to allege that they did not execute their threat out of humanitarian considerations; it is possible that they were simply disoriented or had not received clear orders. In any event, the authorities could not know with certainty whether the terrorists would in fact carry out their threats and detonate the bombs. In sum, the authorities could reasonably have concluded from the circumstances that there existed a real and serious risk for the lives of the hostages, and that the use of lethal force was sooner or later unavoidable.
222. It cannot be excluded that further negotiations would have resulted in the release of several more hostages, such as, for example, foreign citizens, adolescents or elderly people, etc. The applicants strongly relied on this argument, claiming that the risk to the hostages’ lives was not imminent. However, there is too much of an assumption in this allegation. It is unknown whether the leaders of the terrorists were prepared to make concessions; their behaviour and declarations testified to the contrary.
223. It is also important to note what was demanded by the terrorists in exchange for release of the hostages. The Court will not speculate on the issue of whether, as a matter of principle, it is always necessary to negotiate with terrorists and “ransom” the lives of hostages by offering terrorists money or meeting their other requirements. The applicants’ wide-ranging allegation calls into question all anti-terrorist operations, and refers to matters far beyond the competence of this Court, which is not in a position to indicate to member States the best policy in dealing with a crisis of this kind: whether to negotiate with terrorists and make concessions or to remain firm and require unconditional surrender. Formulating rigid rules in this area may seriously affect the authorities’ bargaining power in negotiations with terrorists. What is clear in the circumstances of this specific case is that most of the terrorists’ demands were unrealistic. Thus, among other things, the terrorists demanded the total withdrawal of Russian troops from the territory of Chechnya. Although they later agreed to a partial retreat of the troops (see the testimony by Mr Yav. in paragraph 38 above), in the circumstances this still would have been tantamount to a de facto loss of control over part of the Russian territory.
224. In any event, it cannot be said that the authorities did not try to negotiate. Some form of negotiations was conducted. At the least, the terrorists were given an opportunity to formulate their demands, to reflect on the situation and to “cool down”. It is true that the negotiations did not involve anybody from the highest level of political leadership. However, there is no evidence that their involvement would have brought the situation to a peaceful solution, given the nature of the demands put forward by the terrorists (compare with the case of Andronicou and Constantinou, cited above, § 184).
225. On the basis of the information now available it is impossible to conclude whether the people shot by the terrorists were subjected to “exemplary executions”, as the Government seem to suggest, or were killed for having resisted the terrorists, or because the terrorists considered them to be “spies”. However, at the time of the events most of those who participated in the negotiations could have reasonably perceived the threat of executions as immediate.
226. In sum, the situation appeared very alarming. Heavily armed separatists dedicated to their cause had taken hostages and put forward unrealistic demands. The first days of negotiations did not bring any visible success; in addition, the humanitarian situation (the hostages’ physical and psychological condition) had been worsening and made the hostages even more vulnerable. The Court concludes that there existed a real, serious and immediate risk of mass human losses and that the authorities had every reason to believe that a forced intervention was the “lesser evil” in the circumstances. Therefore, the authorities’ decision to end the negotiations and storm the building in the circumstances did not run counter to Article 2 of the Convention.
228. The Court reiterates, firstly, that in many previous cases it examined the legal or regulatory framework existing for the use of lethal force (see McCann and Others, § 150, and Makaratzis, §§ 56-59, both cited above). The same approach is reflected in the UN Basic Principles, cited above (see paragraph 162) which indicate that laws and regulations on the use of force should be sufficiently detailed and should prescribe, inter alia, the types of arms and ammunition permitted.
229. The legislative framework for the use of the gas in the present case remains unclear: although the law, in principle, allows the use of weapons and special-purpose hardware and means against terrorists (as transpires from the wording of section 11 of the Anti-Terrorism Act, see paragraph 157 above), it does not indicate what type of weapons or tools can be used and in what circumstances. Furthermore, the law requires that the specific technical methods of anti-terrorist operations be kept secret (see paragraph 156 above). The exact formula of the gas was not revealed by the authorities; consequently, it is impossible for the Court to establish whether or not the gas was a “conventional weapon”, and to identify the rules for its use. In the circumstances the Court is prepared to admit that the gas was an ad hoc solution, not described in the regulations and manuals for law-enforcement officials.
230. This factor alone, however, cannot lead to a finding of a violation of Article 2 of the Convention (see, for example, Isayeva, cited above, § 199). The general vagueness of the Russian anti-terrorism law does not necessarily mean that in every particular case the authorities failed to respect the applicants’ right to life. Even if necessary regulations did exist, they probably would be of limited use in the situation at hand, which was totally unpredictable, exceptional and required a tailor-made response. The unique character and the scale of the Moscow hostage crisis allows the Court to distinguish the present case from other cases where it examined more or less routine police operations and where the laxity of a regulatory framework for the use of lethal weapons was found to violate, as such, the State’s positive obligations under Article 2 of the Convention (see the case of Nachova and Others, cited above, §§ 99 – 102).
231. The Court will now move to the applicants’ main argument. They claimed that the gas had been a lethal weapon which was used indiscriminately against both terrorists and innocent hostages. That claim deserves the most serious consideration, since “the massive use of indiscriminate weapons … cannot be considered compatible with the standard of care prerequisite to an operation involving use of lethal force by state agents” (see Isayeva, cited above, § 191). The Court observes that the German Constitutional Court in a judgment of 15 February 2006 found incompatible with the right to life, as guaranteed by the German Constitution, a law authorising the use of force to shoot down a hijacked aircraft believed to be intended for a terrorist attack (see paragraph 164 above). It found, inter alia, that the use of lethal force against the persons on board who were not participants in the crime would be incompatible with their right to life and human dignity, as provided by the German Basic Law and interpreted in the jurisprudence of the Constitutional Court.
232. In the present case, however, the gas used by the Russian security forces, while dangerous, was not supposed to kill, in contrast, for example, to bombs or air missiles. The general principle stated in the Isayeva case, condemning the indiscriminate use of heavy weapons in anti-terrorist operations, can be reaffirmed, but it was formulated in a different factual context, where the Russian authorities used airborne bombs to destroy a rebel group which was hiding in a village full of civilians. Although the gas in the present case was used against a group consisting of hostages and hostage-takers, and although the gas was dangerous and even potentially lethal, it was not used “indiscriminately” as it left the hostages a high chance of survival, which depended on the efficiency of the authorities’ rescue effort. The hostages in the present case were not in the same desperate situation as all the passengers of a hijacked airplane.
233. The applicants further maintained that the gas had not had the desired effect on the terrorists and, at the same time, had caused many deaths amongst the hostages. In other words, they claimed that the gas had done more harm than good. In addressing this claim the Court must assess whether the use of gas was capable of preventing the explosion.
234. The Government did not comment on the applicants’ assertion that the gas did not render all of the terrorists immediately unconscious. The applicants inferred from this fact that the gas had been in any event useless. The evidence shows that the gas had no immediate effect. However, the inference made by the applicants from this fact is too speculative. The facts of the case point to the opposite conclusion: thus, everything shows that the gas did have an effect on the terrorists and rendered most of them unconscious, even if this was not instantaneous, and that no explosion followed. The Court draws the conclusion that the use of the gas was capable of facilitating the liberation of the hostages and reducing the likelihood of explosion, even if it did not remove that risk completely.
235. Another of the applicants’ argument was that the concentration of the gas had been grossly miscalculated, and that the risks to the hostages’ life and limb associated with its use outweighed the benefits. The Court has already established that the gas was dangerous and even potentially lethal. The Government claimed that the gas dosage had been calculated on the basis of an “average person’s reaction”. The Court notes that even that dose turned out to be insufficient to send everybody to sleep: after it had been dispersed in the auditorium some of the hostages remained conscious and left the building on their own. In any event, the Court is not in a position to evaluate the issue of the dosage of the gas. It will, however, take it into account when assessing other aspects of the case, such as the length of exposure to it and the adequacy of the ensuing medical assistance.
236. In sum, the Court concludes that the use of gas during the storming was not in the circumstances a disproportionate measure, and, as such, did not breach Article 2 of the Convention.
263. It is not possible for the Court to establish an individual story for each deceased hostage: where he or she was sitting when the operation began, how seriously he or she was affected by the gas and “concomitant factors” (stress, dehydration, chronic diseases etc.), what kind of treatment was received on the spot, at what time he or she arrived at a hospital, what kind of treatment he or she received in that hospital, etc.
264. Further, what is true in respect of the majority of the hostages may not be true in each individual case, taken alone. Thus, the alleged lack of medical aid would be irrelevant in a situation where a person had already died by the time the medics arrived. Equally, the Court cannot exclude that some of the victims were amongst those who were first to receive medical assistance but nevertheless died, because they were very weak or ill and died as a result of “a stroke of misfortune, a rare and unforeseeable occurrence” (see Giuliani and Gaggio, cited above, § 192).
265. In other words, many important factual details in this case are missing. That being said, the Court stresses that its role is not to establish the individual liability of those involved in the planning and coordination of the rescue operation (see Giuliani and Gaggio, cited above, § 182). The Court is called upon to decide whether the State as a whole complied with its international obligations under the Convention, namely its obligation to “take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, minimising, incidental loss of civilian life” (see Ergi, cited above).
266. The Court acknowledges that in such situations some measure of disorder is unavoidable. It also recognises the need to keep certain aspects of security operations secret. However, in the circumstances the rescue operation of 26 October 2002 was not sufficiently prepared, in particular because of the inadequate information exchange between various services, belated beginning of the evacuation, limited on-the-field coordination of various services, lack of appropriate medical treatment and equipment on the spot, and inadequate logistics. The Court concludes that the State breached its positive obligations under Article 2 of the Convention.