Update on ECtHR Interim Measures Concerning Russia and Ukraine

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This afternoon the European Court interpreted and reinforced the Rule 39 interim measures it had previously issued against Russia regarding the war in Ukraine, in response to additional requests made by Ukraine. Here’s the press release, with the title ‘Expansion of interim measures in relation to Russian military action in Ukraine,’ which bears careful reading. Some interesting points emerge, the main one being the rather fluid boundary between the Court’s interpretation of existing measures and the addition or expansion of the measures. While Ukraine made several requests that the Court should make new measures regarding Russia’s use of specific weapons and methods of warfare, the Court declined to do so by saying that the measures requested were included in those already given:

Having regard to the requests and the information submitted by the Ukrainian Government, the Court reiterates its interim measure of 1 March 2022 in which it indicated to the Government of the Russian Federation to refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops. The Court considers that this interim measure must be understood to cover any and all attacks against civilians, including with the use of any form of prohibited weapons, measures targeting particular civilians due to their status, as well as the destruction of civilian objects under the control of Russian forces. The Court thus concludes that this part of the request is already covered by the interim measure indicated on 1 March 2022 which remains in force.

But then comes the expansion. Recall how Russia has evacuated (or ‘evacuated’) thousands of Ukrainian civilians onto Russian territory, contrary to both the requests of the Ukrainian government and the presumed desires of the civilians themselves. According to the Ukrainian government, some 40,000 civilians are in this position. Some of the individuals in question may have effectively been subjected to forcible deportation. The Ukrainian government now asked the Court to specifically order Russia not to do this, and the Court did agree to this request at least to some extent:

The Court further recalls the interim measure already indicated on 4 March 2022 to the Government of the Russian Federation, under Rule 39, that, in accordance with their engagements under the Convention, notably in respect of Articles 2, 3 and 8, they should ensure unimpeded access of the civilian population to safe evacuation routes, healthcare, food and other essential supplies, rapid and unconstrained passage of humanitarian aid and movement of humanitarian workers.

In the context of the present request and having regard to the current situation on the ground, the Court decides to indicate to the Government of the Russian Federation, under Rule 39, that the said evacuation routes should allow civilians to seek refuge in safer regions of Ukraine.

(Emphasis added). This is I think a first in international jurisprudence – that a court is effectively ordering a belligerent state to open specific evacuation routes, which must include the safer territory of the state on which a war is being fought. And this approach, which seems fully justified in the circumstances, e.g. in Mariupol, is needless to say completely at odds with the Georgia v. Russia No. 2 notion that the Convention cannot apply extraterritorially to military operations in a ‘context of chaos’ during the active hostilities phase of an international armed conflict. The Court is now actively managing the chaos, or at least trying to do so.

A final notable point. While Russia did respond to the Court’s communications regarding the previous wave of interim measures, it seems to have stopped responding to the Court after its expulsion from the Council of Europe on 16 March:

The Court (the President of the Court) examined the Ukrainian Government’s request and on 24 March 2022 invited the Government of the Russian Federation to provide, inter alia, their comments on those requests and to reply to a number of specific questions relating to the requests. At the same time, the Court also invited the Government of Ukraine to provide further information and updates. The Government of the Russian Federation have not provided any replies to those requests.

This is a very good indication that Russia will simply stop engaging with the Court completely, regardless of the Court’s view that the Convention continues applying to any violations committed until 16 September (see more here and here). It was always likely that Russia will adopt a strategy of non-appearance and non-engagement, but that strategy now seems to be materializing.

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