Editor’s NoteAfter years of being sued by other states, Russia struck back at the European Court of Human Rights by filing a case against Ukraine. On 22 July 2021, the ECtHR received the application, in which Russia accused Ukraine of being responsible the crash of flight MH17, of civilian death and mistreatment, a “water blockade” of occupied Crimea, and a laundry list of other absurd charges, of which Russia itself is accused of. How will a Russia try to prove Ukraine is guilty – and why?
As in February Ukraine filed its ninth Inter-State application before the European Court of Human Rights against Russia, Moscow started reconsidering its approach to the lawfare before the Court against Russia.
To specify, Russia has decided to transfer the power to represent it in international disputes from the ministry of justice to the prosecutor general’s office. To do so, Putin decided to introduce the relevant draft law to the parliament and within a month it passed all the procedures and became the law. A bonus-gift for the Russian prosecutor general’s office was the creation of a “foreign department,” which will most likely be located in Strasbourg and will be responsible for Russia’s representation before the European Court of Human Rights.
In a few weeks, the prosecutor general’s office of the Russian Federation announced the submission of its first Inter-State application against Ukraine. Let’s explore what this “historic” application is about and what consequences it may have for Ukraine.
First of all, from the published by Russia press release, it seems that water is not only one of the possible characteristics of the legal position of the RF, but also one of the key interests of the application.
Russia asked the ECtHR to apply interim measures and, thus, to oblige Ukraine, in particular, to stop blocking the supply of water to Crimea. This allegation is not new, but the argument of the prosecutor general’s office in its favour was quite unusual. Russian lawyers referred to the fact that “ the Dnipro [river] has its origins in the Smolensk re gion” and therefore “ belongs not only to Ukraine. ” By virtue of this argument, Russian lawyers conclude that the blocking of water supply to Crimea is contrary to international law.
To this end, Russia estimates losses in connection with the blockade of water supply from Ukraine to the occupied Crimea at 1.4 trillion rubles ($19 bn).
But if we evaluate this impressive argumentation from a legal point of view, a rhetorical question arises. Why does Russia refer to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, but at the same time ignore international humanitarian law?
The possible answer is that the damages calculated by Russia occurred due to its enforcement of the Article 55 Fourth Geneva Convention. This provision obliges the Occupying Power to ensure the food, medical supplies and other articles if the resources of the occupied territory are inadequate.
However, let’s go back to the water dreams of the Russian prosecutor general’s office.
Despite the fact that the applicant could theoretically obtain a decision of the European Court of Human Rights which would oblige Ukraine to do something with the Crimean Canal, the European Court of Human Rights responded fairly quickly to the Russians by refusing to apply interrim measures.
However, the arguments about the Smolensk sources of the Dnipro fade in comparison with the fact that Russia calls on the ECtHR to recognize Ukraine’s effective control over part of [Russia’s] Rostov Oblast.
In its Inter-State complaint, Russia claims victims of shelling on the border, demanding Ukraine to be held accountable for these human rights violations. However, according to the practice of the ECtHR, Ukraine’s responsibility for events in the Rostov region would be possible if the Court established the fact of effective control of the Ukrainian government, in particular, over the relevant territory of Rostov Oblast.
Thus, now the lawyers of the Russian Federation face a difficult task. This is because Ukraine did not create and coordinate the self-proclaimed republics in the Rostov Oblast, did not supply weapons to the territory of the Rostov Oblast, and did not deploy its military. Thus, it was difficult for Ukraine to establish effective control over part of the territory of the Rostov Oblast (as opposed to Russian control over the territories of Ukraine’s Donetsk and Luhansk oblasts).
Russia also accuses Ukraine of shooting down MH17, in particular, relying on the fact that Ukraine did not close its airspace and, further, did not conduct an effective investigation into the circumstances of non-closure of the relevant airspace.
The accusation is not new, but one detail attracts attention.
Based on information currently released by the prosecutor general's office, Russia does not accuse Ukraine of directly shooting down MH17 and, thus, does not question the fact that the plane was shot down by its proxies. It must be recalled to this end that the criminal court of the Netherlands is in a trial against "DNR Defense Minister" Igor Girkin (Strelkov), GRU Colonel of the General Staff of the Russian Armed Forces, DNR GRU Chief Serhiy Dubinsky, GRU Lieutenant Colonel Oleh Pulatov and Leonid Kharchenko.
In any case, the arguments of the Russian Federation in no way affect the prospects of bringing it to justice for the downing of MH17. But even before consideration of the Russian complaint on merits, the ECtHR must establish the extraterritorial jurisdiction of the Russian Federation and, subsequently, its responsibility for shooting down MH17 from territory controlled by Russia.
Russia also accuses Ukraine of a so-called "civil war," in particular, of shelling civilians in Donetsk and Luhansk oblasts, roads, medical and educational institutions, which Russia believes is a violation of Article 2 (right to life), Article 3 (prohibition of torture), 8 (right to respect for private and family life) and Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
In this context, it will be important how the Russian Federation will prove these violations, in particular what evidence it will provide and what law it will invoke.
After all, in this situation, the Russian Federation will face a dilemma, which has already been mentioned above: to refer to international humanitarian law, in particular to the Geneva Conventions, or not. This is because, the international humanitarian law distinguishes between international armed conflicts and non-international armed conflicts. The above-mentioned Geneva Conventions (with the exception of General Article 3) apply to international armed conflicts, and therefore, if Russia refers to them, it will recognize the existence of an international armed conflict, i.e. the conflict between Russia and Ukraine.
This will obviously deny Russian rhetoric about the so-called "civil war" that underlies Russian propaganda.
On the other hand, if the application of the Russian Federation is declared admissible and the ECtHR proceeds to its consideration on the merits, it will be impossible for Russia not to operate with the international humanitarian law on international armed conflicts, as the latter will be applied by the Court.
Why all this?
The application of the Russian Federation may also have a different, tactical goal.
It is possible that Russia's real aim is to delay the public hearings of the Inter-State application of Ukraine and the Netherlands against Russia scheduled for November this year. In 2019, albeit with the help of other instruments, it managed to postpone similar hearings on Crimea for more than six months. However, in the end, it did not stop the process.
Finally, despite the scepticism about the Russian complaint, which is also heard from the Government of Ukraine, it should be recognized: Russia uses all possible channels of influence in this lawfare.
Right now, the Council of Europe is developing proposals to reform the mechanism of Inter-State applications before the Court. Russia itself and ten other CoE members are actively involved in this process - but Ukraine is not. Despite the fact that this working group has been working since last year and is open to all Council of Europe member states, the Ukrainian government has not yet joined it.
With the hope that this situation can be changed in the near future, we state: Russia's lawfare continues. And we must not underestimate the enemy in it.
Illia Chernohorenko is the Founder of the Ukrainian Centre of the Efficiency of Justice. As a former Director-General for the Rule of Law Directorate at the Ministry of Justice of Ukraine (2018-2019) and the Council of Europe Observer for the Commission on Legal Reform for the President of Ukraine (2019-2020), Illia Chernohorenko is also currently acting as an external consultant for the international organisations on justice sector reforms in Ukraine.
Illia graduated from the Queen Mary University of London, LL.M in International Dispute Resolution, and currently is obtaining a MSt in International Human Rights Law at the University of Oxford.
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