Ukraine Derogates from the ICCPR and the ECHR, Files Fourth Interstate Application against Russia

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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.

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  • Armed Conflict
  • EJIL Analysis
  • European Convention on Human Rights
  • Extraterritorial Application
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  • International Covenant on Civil and Political Rights

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    Comments

    vincent souty says

    October 5, 2015

    Good evening.
    I have a few questions about this post.
    First, I don't really get why you consider that the notification is silent about the existence of a IAC since both notifications are talking several times about the "armed aggression of the Russian Federation against Ukraine". Do you really think that could be bypassed by the sole name of the 'anti-terrorist operation" ?
    And anyway, to which extend, according to you, the fact that Ukraine did not mention the existence of an IAC could affect the office of the european judge ?
    The application of the law of IAC is not subjected to any formal recognition. So what could prevent Ukraine to raise the existence of an IAC during the hearing ?
    The Judge Spano, in Hassan, observed that this case could be easily transposed in case like this one (i think he had precisely in mind the Russia-Ukraine conflict) :
    §5 of his dissenting opinion (sorry in french) : "il en découle concrètement que la décision aujourd’hui rendue doit logiquement avoir pour conséquence que, lorsqu’un État
    contractant est engagé dans un conflit armé international contre un autre État contractant, la Convention permet aux belligérants d’invoquer leurs pouvoirs d’internement en vertu des troisième et quatrième Conventions de Genève sans
    avoir à passer par le processus manifestement transparent et ardu consistant à notifier une dérogation à l’article 5 § 1, dont la portée et la régularité sont ensuite attaquables devant les juridictions nationales et, si nécessaire, devant la Cour sur le terrain de l’article 15."

    So, what do you think about that ?

    Vincent Souty

    PS just a quick thanks for this blog who always raises really interesting and up-to-date questions
    PPS sorry about my poor English

    Aurel Sari says

    October 5, 2015

    Marko, are we reading the same document? True, the ECHR declaration says that the Ukraine is conducting an 'anti-terrorist operation' and does not seem to say that it is conducted subject to IHL. However, the phrase 'anti-terrorist operation' is not a term of art. By contrast, the declaration declares Russia to have committed an ‘act of aggression’, to be in ‘occupation’ of Ukrainian territory, refers to ‘war crimes’ and holds Russia responsible for respecting ‘human rights under international humanitarian law and international human rights law’. That last point may raise a couple of eyebrows, but invoking occupation, war crimes and IHL clearly suggests that the Ukraine considers IHL to be applicable. I would not want to speculate on how the Ukraine classifies the conflict, but the reference to Russian occupation implies that at the very least there is an international armed conflict to which Russia and the Ukraine are the parties. This is still a long way off from actually invoking IHL as a justification for derogating, but the declaration does not quite ignore IHL. Consequently, I don't think the Ukraine has shot itself in the foot here, at least not badly. On a related note, I am wondering why you consider it significant that the Ukraine does not invoke IHL to justify its measures of derogation. Does not the legality of those measures depend on whether the exigencies of the situation require them? In which case, why would you want to run an argument that the measures in question are based on IHL and as such need to be ‘accommodated’ with the ECHR? Interested in your thoughts!

    Marko Milanovic says

    October 5, 2015

    Vincent, in brief, I'd say that the reference to 'armed aggression', which is a jus ad bellum concept, is not the same as referring to an international or non-international armed conflict, which are jus in bello concepts. As I said in my post, while the Court is more prepared to accommodate IACs by flexibly interpreting the Convention, it has not done the same with respect to NIACs, and there is the real danger in Ukraine's strategy.

    Aurel, yes I think we are indeed reading the same document. I just seem less ready than you are to read into it stuff that's not there. Yes, there's passing reference to the temporary occupation of Crimea, but no such reference is made with respect to Eastern Ukraine. Ditto re war crimes etc. Sure, if one really wanted to one could imply some things into the derogation, but that presumes such a generous intention on the part of the interpreter. And while any derogation measures need to be strictly required by the exigencies of the situation, I would think that the Court would be more prepared to defer to states if in derogating they said, look, we're in armed conflict, IHL applies, we need to engage in status-based targeting, preventive detention etc, than if a state wanted to do something similar without supporting this in a parallel branch of international law. The benefit of such derogations would precisely be in their clarity and openness.

    In any event, for a fuller account of my views on the utility of derogations, see here: http://ssrn.com/abstract=2447183

    Aurel Sari says

    October 6, 2015

    Thanks Marko. You wrote in the post that the declaration 'at no point refers to rules of international humanitarian law governing armed conflict'. In fact it does, both explicitly by saying that Russia has obligations under IHL, and implicitly by referring to occupation, which can only mean that the Ukraine considers that an international armed conflict exists between itself and Russia What I suggested is that the existence of these references would enable the Ukraine to expand on the IHL argument or the Court to look into it on its own accord, if it choses to do so. Whether the declaration should have been more vocal in referring to IHL is a different matter. I hear your reasons in favour of invoking IHL more robustly. What I am wondering is whether raising IHL in a derogation would close the road to invoking it at a later stage or separately in order to 'accommodate' IHL rules with the Convention as in Hassan. The reasoning in Hassan of course is based on the notion that Convention States do not derogate. So what is the position if one of them does in fact derogate?

    vincent souty says

    October 6, 2015

    "The reasoning in Hassan of course is based on the notion that Convention States do not derogate. So what is the position if one of them does in fact derogate?"

    Just a quick question about that :
    According to ILAŞCU I guess both Ukraine & Russia could be considered responsible for violations of the Convention on, let's say Crimea or even maybe Donbass.

    But only Ukraine has yet notified a derogation.
    Then, I guess Russia could rely on the reasoning of Hassan and invoke the application of IHR in similar case of deprivation of liberty.
    So I cannot see why, on the same circumstances, Ukraine would not be able to rely on the same reasoning just because it did notify a derogation.

    So, the Court would face two solutions : to apply Hassan including for the case of Ukraine, or to reject Hassan, but it would have to find strong convincing arguments.

    The case may have been different if Russia did derogate too, but with the asymmetricality (is it correct ?) of the situation will force it whether to confirm or change the Hassan reasoning.

    What do you think ?

    Emanuele Sommario says

    October 11, 2015

    Dear Marko,

    Thanks for the interesting post. I think that – from an IHL perspective - one additional “anomaly” in Ukraine’s notification is the absence of any derogation from the right to life “in respect of deaths resulting from lawful acts of war”, as allowed by art. 15(2). Clearly, if these “anti-terrorism operations” where to be carried out in accordance with an armed conflict paradigm (i.e. by using status-based targeting) loss of life incompatible with normal conventional standards may occur. To be fair, no CoE member State has ever derogated from Art. 2 (neither in IACs nor in NIACs), which leads me to think that the ECtHR could deal with the issue in the same way it dealt with internment in Hassan and adjudge that the “lawful act of war” clause has never been used in practice and is, de facto, dead letter.

    Here, however, the way in which the ECtHR might qualify the conflict could be paramount. The Hassan judgment seemed to suggest that reliance on IHL to read further implicit limitations/derogations into the Convention was only allowed in IACs. If it were to find that the conflict in Ukraine is a NIAC, the above stance would be more difficult to maintain. Unless, as I am inclined to think, what really matters is not the nature of the conflict, but whether the alleged limitations granting more powers to the belligerents are, indeed, “accepted features of international humanitarian law” (Hassan, §104).

    vincent souty says

    November 12, 2015

    Good morning,
    have you read the new notification made by the Ukraine?

    https://treaties.un.org/doc/Publication/CN/2015/CN.612.2015-Eng.pdf