I’ve somehow managed to miss this – and I don’t think it has been widely reported – but in June this year Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights. In late August it also filed a new interstate application before the European Court of Human Rights against Russia, and this is the really big one, dealing with events in Crimea and Eastern Ukraine after September 2014. A couple of days ago it was communicated by the Court to Russia for a response, as detailed in the Court’s press release. The press release also explains the current state of Ukraine/Russia related litigation; while one of the four interstate cases was discontinued, the three remaining cases come coupled with some 1,400 individual cases on various issues, against Russia, Ukraine, or both. Obviously this whole set of cases – together with those dealing with the downing of MH17, and future Ukraine/Russia cases to come – presents one of the most significant challenges that the Court has ever had to face on how the Convention should apply in armed conflict.
The press release also refers to Ukraine’s derogation from the ICCPR and the ECHR. The text of the detailed notice of derogation can be found here and here. In particular, Ukraine derogated (or at least attempted to derogate) from Articles 5, 6, 8 and 13 of the Convention, and the corresponding articles in the ICCPR. Much of the derogation notice, and the relevant Ukrainian legislation it refers to, deals with detention issues and other restrictions on personal liberty, such as the institution of curfews, as well as changes to judicial and prosecutorial procedures. The most important derogation seems to be the extension of detention without judicial authorization from 72 hours to 30 days, subject to decision of a prosecutor.
Two things struck me as particularly interesting – and particularly unhelpful – after reading the derogation notice.
First, while the notice is replete with references to an armed aggression by Russia against Ukraine, and while it explicitly refers to Ukraine’s right to defend itself under Article 51 of the UN Charter, it at no point refers to rules of international humanitarian law governing armed conflict. For example, it does not say that Ukraine will employ IHL-based targeting and preventive detention, or that relevant human rights standards should be modified by applicable rules of IHL.
Second, and in a similar vein, the derogation notice consistently refers to the ongoing conflict in Eastern Ukraine as an “anti-terrorist operation,” and not as an armed conflict. I imagine this was done for internal political reasons (the notice was adopted as a resolution of the Ukrainian parliament). This is also generally consistent with state behaviour in situations of internal conflict, where the terrorism label is frequently employed to delegitimize the adversary, while there is avoidance of explicitly recognizing that the situation qualifies as an armed conflict in the sense of IHL. There is only one oblique reference to ‘war crimes’ by pro-Russian forces in para. 3, which obviously assumes the existence of an armed conflict, but that’s it.
This avoidance of references to IHL and armed conflict in the derogation notice is a risky legal strategy, which reduces the potential benefits that Ukraine could have drawn from a derogation. The risk is particularly significant if the Court (or the Human Rights Committee) finds that some of the situation in Ukraine is properly classified as a non-international armed conflict. While in Hassan v. UK the Court was prepared to go a long way in accommodating IHL and reading in grounds of IHL-based detention into the ECHR, it confined this reasoning to international armed conflict only. It may well be that Ukraine will argue – and that the Court will accept – that the whole conflict is internationalized by virtue of the control exercises by Russia over the Ukrainian rebels, but that is hardly inevitable and will depend a great deal on whatever evidence Ukraine is able to muster before the Court to demonstrate such control. If, in other words, the Court finds more NIAC than IAC, it may be far less prepared to use IHL harmoniously with the Convention, and the derogation’s lack of explicit reference to IHL could render it ineffective or less effective than it could have been.
The Court (and the Committee) may also object to (some aspects of) the derogation notice on other grounds as well. That Ukraine has derogated does not ipso facto mean that all of the specific measures it took will be regarded as strictly required by the exigencies of the situation. There’s also an interesting issue regarding the temporal scope and effects of the derogation notice, since it took Ukraine many months to communicate the notice after enacting some of the most onerous restrictions, such as the extension of the period of detention without judicial control. It may well be, in short, that the Ukraine will get very little from this attempt at derogation. But even so Ukraine seems to have shot itself in the foot by its (likely politically inspired) circumspection regarding IHL.