Dr. Andrew Forde on the Strasbourg Judgment

"It's Absurd They Didn't Find Jurisdiction in that Specific Period"


As the debate surrounding the controversial ECHR judgement on Georgia vs Russia goes on, the Georgian Institute for Security Policy spoke to a Human Rights expert with 10 years under his belt in the Council of Europe, Dr. Andrew Forde, who gave us his main takeaways on the judgment.

“I was surprised by the court's determination of jurisdiction in that period. I was surprised and I was disappointed, and I don’t think anybody from a human rights legal background can look at that and be pleased. I think it's also very important to contextualize this decision: the court is not the forum to determine questions of sovereignty, or who is the legitimate authority in one place over another, and it's really struggled on this. It struggles on the issue of war and conflict in general. It’s had difficulties in the last 30 years, really. The third part that's difficult is the issue of de facto states, state-like entities, and so on. The problem is in this particular case is that the court found itself in an impossible situation, because on the one hand, if you read the whole judgment clearly, the court didn't want to leave a vacuum of human rights protection, but on the other hand it struggled to establish the evidentiary basis to find jurisdiction during that specific period of hostilities. On a larger scale, the Council of Europe can, and I think must, do more to engage the human rights “gray zones” in Europe. This case again highlights the systemic problem facing the conventional system.”

What prevented the courtfrom establishing jurisdictionand from pointing either at one side oranother?

One factor would be that the court found the evidence presented from the parties involved lacking. Another factor would be that the court has tried to shield itself from questions in the context of active hostilities for quite some time. I think this is wrong, frankly, because the moment that a military power begins to drop bombs or fire weapons on a population is an exercise of power and authority over that population, and it doesn't matter if it happens from the sky, from the hills, from a different jurisdiction, or actively on site. It's an absurdity really that the court didn't find jurisdiction in that specific period, and I think it's a problem not just in the context of Abkhazia and South Ossetia and the 2008 war; it's a problem more generally too, because of the precedent that it sets for other jurisdictions in other conflicts, namely in Eastern Ukraine and Nagorno-Karabakh.  

When you say the evidence was one of the major considerations, does itmean there was a lack of evidence?

The court used very opaque language around that and said that in the chaos of war, it's not in the position to make a determination one way or the other. It may well be that there is evidence, but that it's refuted by the Russians or by others, or that there's evidence presented by Russia that's refuted by Georgia, and for one reason or another the court couldn't decide. So from my from my perspective, it seems that the court really was being quite deliberate to not find jurisdiction, due to the potential implications or precedent of finding jurisdiction in that particular case. Yet it undermines the court's role; effectively saying that the European Convention on Human Rights (ECHR) cannot be assessed in times of war. That dramatically undermines the power and the authority of the ECHR in times of war, at the time when people need it most. This active hostilities aspect of the judgment might have an effect on the infamous MH17 case as well: if the court decides to follow this logic of Georgia-Russia in that case, it will be very difficult to say that any state has jurisdiction, because it's the active phase of hostilities.

How great a leverage is the political and diplomatic weight of the judgment?

I wouldn't overstate this, but apart from the five-day dilemma, ultimately, this case is absolutely damning against the Russian Federation. This case has found extremely serious violations of the ECHR after 12th of August 2008.

That finding was a victory inthe Georgian book,whilethe Russian side presented the reluctance of the court to determine jurisdiction during the war itself as its own victory. Who are the real winners and losers here?  

I'd be very reluctant to speak of winners and losers. There are a lot of losers and I don't know if there are any winners in this, given the fact that 850 people were killed, 100,000 were displaced and 35 or 40,000 still haven't returned home. It's important that we contextualize that, but certainly I think that Russia has come out worse for this because they have been found by the court to have an administrative practice which violated life, property rights, liberty and security, and family life. All of those are extremely serious violations of the ECHR. It's very clear that this does not reflect well on Russia. I'm not sure the fact that the court didn't find jurisdiction for the period of the conflict itself can be classed as a victory for Russia. Perhaps, politically speaking, it is, because Russia has been such a strong critic of the idea of effective control for the past 20 years in the Council of Europe, and continues to be so today. But I would not overstate that. It is a very marginal victory.

A huge step will be made if Russia is actually willing toadmit it, or recognize it, or actuallyprovide reparations, don't you think?

The reparations issue is essential to this process, given the scale and scope of human rights violations. The question of reparation is now deferred for a number of years because the court will only now start to examine that issue, and that could take at least five years. And when it happens, it's almost inconceivable that the court will not insist that Russia pays reparations to the victims and their families. It’s not an option for russia; it’s an obligation, an unconditional obligation, and it's an unconditional obligation of membership of the Council of Europe that just satisfaction or reparations are paid not only in full, but promptly. I would say it is certainly something that needs to happen, but whether it will happen is a different question, and if we look to the experience of the earlier Georgia-Russia case, which has not produced very positive results in terms of payment, one has to really wonder how well this is going to go, and how promptly Russia will pay, if they pay at all.

Interview by Vazha Tavberidze

06 February 2021 18:35