Russia and Crimea: What Role for the European Court of Human Rights?

The last week of February, before ousted President Victor Yanukovych surfaced in Russia and before Russian troops moved in on Crimea, the Ukrainian Parliament voted to send Yanukovych, the former minister of the interior and the former prosecutor general to the ICC.   Members of Parliament wanted the three men tried for crimes against humanity for the violence committed against civilians during the previous weeks of protests.  Of course, getting cases to the ICC doesn’t work quite like that.

That said, there is a potential role for an international court here, particularly the European Court of Human Rights.   Not too surprisingly, Russia and the European Court of Human Rights have not enjoyed an easy relationship.  Russia’s failure to comply with the Court’s measures of non-repetition mean that clone and repeat cases stemming from Russian violations have flooded the Court.  But, as I argue here, so have clone cases from Italy, Turkey, and yes, Ukraine.  In many ways, Russia has been an easy—if justifiable—scapegoat for some of the Court’s problem.

Thus far, the allegations of an anti-Russian bias have been indirect.  By that I mean that Western European member states could very well push harder on Russia than on other states in the political organs associated with the execution of judgments, such as the Committee of Ministers.  Now, though, there is a real possibility for Western member states to use the Court directly, through an interstate complaint, to chide Russia for its bad behavior.

Interstate cases represent a tiny percentage of the ECtHR’s caseload and for good reason.  When states bring interstate complaints to the Court, they run the risk of retaliation.  That fear, as well as arguments about state sovereignty that persist despite the fully functioning individual petitioning mechanism, curb the number of interstate petitions.  Here is an opportunity to invest the interstate dispute mechanism new relevance and vigor.   Russia’s move into Crimea and the Ukraine’s reaction to domestic protests before that will undoubtedly prompt a flurry of individual petitions.  Russia’s actions in Crimea should also prompt an interstate petition. It would be a shame if, in this instance when the grounds for an interstate petition seem pretty clear, Western European member states missed their chance.

An interstate petition at the ECtHR will obviously not solve the crisis in Crimea.  What it can do, however, is two-fold.  First, such a petition can (re-)insert human rights concerns into the narrative of the crisis that has thus far skewed toward geopolitics and away from humanitarianism.  Second, it can revitalize the interstate dispute mechanism as a political and judicial tool that, when used sparingly, can send a clear signal about the member states’ commitment to human rights, even when geopolitical concerns get thorny.

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