The European Court of Human Rights (“The Court”), based in Strasbourg, granted urgent interim measures in application concerning Russian military operations in the territory of Ukraine, another Member State of the Council of Europe on 2 March, 2022. The Court was established in Strasbourg by the Council of Europe Member States in 1959 to deal with human rights violations protected under the European Convention of Human Rights. (“The Convention”). The Court is the guardian of rights guaranteed under the Convention.

The Court has decided to indicate to the Government of Russia 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, 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 was acting under Rule 39 of the Rules of the Court, according to which, the Court may interim indicate interim measures to any Sate Party to the European Convention on Human Rights. Interim measures are urgent measures which, according to the Court case-law, apply only where there is an “imminent risk of irreparable harm.”

The background is that, on 28 February 2022, the European Court of Human Rights received a request from the Ukrainian Government to indicate urgent interim measures to the Government of the Russian Federation, under Rule 39 of the Rules of Court, in relation to “massive human rights violations being committed by the Russia troops in the course of the military aggression against the sovereign territory of Ukraine”.

The request was registered under application number 11055/22, Ukraine v. Russia (X), and has been examined by the President of the Court, Guido Raimondi.

What is the order of the Court?

In the interim order, the Court requested the Russian Federation to inform the Court of the measures taken to ensure that the Convention is fully complied with.

The strength of inter-State proceedings in Strasbourg lies with the objective ascertainment of the facts. The Court is not a political actor, it is an international court. Interim measures of the Court can help, at least one can hope, to contain the worst of the worst human rights violations.

What is the background of the case?

The Court recalls the interim measures indicated on 13 March 2014, which remains in force in the context of the case Ukraine and the Netherlands v. Russia (nos. 8019/16, 43800/14 and 28525/20) concerning the events in eastern Ukraine calling upon the Governments of both the Russian Federation to comply with their engagements under the Convention.

The Court had to examine the current military action which started on 24 February 2022 in various parts of Ukraine and considered that it gave rise to a real and continuing risk of serious violations of the rights protected under the European Convention of Human Rights of the civilian population, in particular under Article 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) and Article 8 (right to respect for private and family life).

With a view to preventing such violations and pursuant to Rule 39 of the Rules of Court (Case law: Georgia v. Russia (II) (no. 38263/08), interim measure, 12 August 2008, Ukraine v. Russia (no. 20958/14), interim measure, 13 March 2014, Armenia v. Azerbaijan (no. 42521/20), interim measure, 29 Sep), September 2020, and Armenia v. Turkey (no. 43517/20) interim measure, 6 September 2020), the Court has decided, in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of Russia 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.

Are stakes high?

Kushtrim Istrefi and Antoine Buyse have argued with respect to the interim measures ordered in the context of the Nagorno Karabakh conflict, between Azerbaijan and Armenia, that “[t]he wider the scope of an interim measure, it seems, and the higher the stakes for states, the less likely that the measures will be complied with. And as a consequence of that same wide scope, it will be also much more contentious at a later stage to assess whether the interim measure has been complied with.”

While I agree that the stakes are high and the likelihood of compliance is minimal, I would like to underline that the decision on interim measures does not introduce a new legal obligation on the Russian Federation. Interim measures are declaratory in character. From the point of view of the Court, the yardstick for the actions of all Member States of the Court involved is and remains the Convention. Thus, the (future ex-post) assessment whether the Court’s interim measures decision has been complied with is in reality the question whether the States have complied with the very core of their Convention obligations.

What are the earlier cases where interim measures were requested in inter-State proceedings?

An analysis of the previous inter-State case law and the use of interim measures indicate that interim measures were largely complied with. However, the old case-law does not comprise situation of ongoing armed conflict.

The very first set of inter-State proceedings was Greece v. the United Kingdom in the 1950’s. The United Kingdom honoured the request even though at that time, there was no legal basis for interim measures whatsoever.

In the case of Ireland v. the United Kingdom, Ireland had, in March 1972, requested from the Commission, “to seek from the respondent government: first, an undertaking that all such treatment of persons in custody as has been complained of in the application as constituting a breach of Art. 3 should be discontinued”. In addition, Ireland further had requested observers to be nominated by the Commission to monitor the undertaking. However, the Commission declined the request and argued that “it did not have the power, consistent with its functions under the Convention, to meet the request.”