The year 2021 will be rich in news in the field of international justice related to the armed conflict in Ukraine. The Office of the Prosecutor of the International Criminal Court recently completed a preliminary assessment of the situation in Ukraine and will initiate the opening of a full-fledged investigation of war crimes and crimes against humanity committed both in the east of Ukraine and in the Autonomous Republic of Crimea.
Since 2014, Ukraine has filed several complaints against Russia with the European Court of Human Rights regarding rights violations committed in the occupied territories. So far, the court has grouped the filings into four cases
In the wake of this news came the report that the European Court of Human Rights (ECHR) has scheduled for September 15, 2021, an oral hearing in the case of the armed conflict in eastern Ukraine. I will dwell in a little more detail on this to show what this will mean for Ukraine and what the implications are.
Since 2014, Ukraine has filed several complaints against Russia with the European Court of Human Rights regarding rights violations committed in the occupied territories. So far, the court has grouped the filings into four cases: human rights violations in Crimea (1) and in eastern Ukraine (2), detention and prosecution of Ukrainian citizens on criminal charges by the Russian Federation (3), and the attack on Ukrainian navy servicemen in the Kerch Strait (4).
Each case goes through several stages before the Court, and an oral hearing is one of the most important, at which each party must present its arguments to the Court. Such hearings are public and broadcast live on the ECHR website. An oral hearing on the Crimea case took place last year. In the Ukraine and the Netherlands v. Russia case, the Grand Chamber of the European Court of Human Rights will hold an oral hearing next year.
Until recently, the case was Ukraine v. Russia, but in July this year the Dutch government filed an interstate complaint against Russia over the downing of a Malaysian Boeing MH17 over Ukraine, where 298 people were killed, including 196 Dutch nationals. Given that the complaint is directly related to the issues brought up in the Ukraine v. Russia case concerning the events in Donbas, the Court decided to combine the two cases into one – Ukraine and the Netherlands v. Russia.
At the oral hearings, one of the most important issues for the Court to clarify is the question of jurisdiction regarding the Russian Federation. That is, can Russia be held responsible for human rights violations that occurred in the territory that is de jure part of Ukraine. The European Court of Justice has already established case law on the issue of government's responsibility outside its own country'sterritory (for example, in cases concerning the Transnistrian, Cypriot, and Nagorno-Karabakh conflicts). Therefore, at the oral hearings in this case, for the Government of Ukraine it's very important to provide the Court with convincing arguments and evidence of the actual presence of Russian military servicemen and Russian weapons, as well as Russia's support for the self-proclaimed "DPR" and "LPR" entities in the military, economic, political and information areas, as well as to be ready to counter Russia's reservations in these matters. After all, Russia strongly denies its participation in the occupation of part of the territory of Ukraine and, thus, declares that the court shall be dismissed as such.
At the oral hearings, one of the most important issues for the Court to clarify is the question of jurisdiction regarding the Russian Federation. That is, can Russia be held responsible for human rights violations that occurred in the territory that is de jure part of Ukraine
Although the oral hearing is far from the final stage in the case against Russia, it is clearly a significant step forward in the process and brings us closer to the Court's final ruling. The case of Ukraine and the Netherlands v. Russia is extremely complex and unprecedented for the ECHR, as it covers numerous human rights violations, such as murder, torture, unlawful deprivation of liberty and the right to a fair trial, committed throughout a long period of armed conflict. Also, very complex legal-wise is the question of determining jurisdiction, which, in turn, requires the Court to process a huge amount of evidence. As an example, in the case of Georgia v. Russia, into the events of August 2008, the European Court is yet to hand down a final judgment next year. That is, it took the court thirteen years to assess the events of the Georgian-Russian conflict, which lasted five days.
The case of Ukraine and the Netherlands v. Russia is extremely complex and unprecedented for the ECHR
And now a few words about the case's implications. Of course, first and foremost, it is about justice for victims of mass and brutal human rights violations, the truth about Russia's responsibility for such crimes. Besides, victims will be able to receive fair compensation. For example, in the Cyprus v. Turkey (1979 armed conflict) case, the Court ordered Turkey to pay EUR 30,000,000 in non-pecuniary damage to the families of 1,456 missing persons and EUR 60,000,000 in non-pecuniary damages to Greek Cypriots living on the Karpas Peninsula.
It should also be borne in mind that the Court is now considering some 7,000 individual allegations of human rights violations committed during the armed conflict in Ukraine. Rulings in these individual cases will be made possible only after the ECHR has considered the interstate case.
Vitalia Lebid is a lawyer with the Center for Strategic Affairs at the Ukrainian Helsinki Human Rights Union