Russia has not only continued to veto possible ways of holding the Syrian government accountable for its atrocities, it has also taken an active role in the Syrian conflict. A recent 200-page report by Russian activists details the various human rights violations and international crimes that the parties to the conflict, among them Russia, have been committing. Despite repeated calls by the United Nations and other states, Russia made no attempts to investigate the numerous instances and to hold the perpetrators in its own ranks accountable. Instead, Russia denied committing war crimes in Syria. This begs the question how victims of Russia’s military involvement in Syria can achieve justice and accountability.
Individual criminal liability is not an option as Russia is not a member of the International Criminal Court (ICC) and prosecutions under universal jurisdiction have focused on extremist groups and lower-ranking employees of the Syrian government (see ANNEX I of SJAC’s annual report 2021). However, as a member of the Council of Europe and ratifier of the European Convention on Human Rights (Convention) and relevant protocols, Russia is subject to the jurisdiction of the European Court of Human Rights (ECtHR). Compared to SJAC’s last assessment of the prospects of bringing a case against Russia at the ECtHR, recent cases at the Court raise new hope that such a case would be admissible. SJAC assessed the prospects of bringing a case at the ECtHR concerning Russia’s engagement in the Syrian conflict. Recent cases at the Court raise new hope in this regard. Nonetheless, there are still concerns about Russia’s lack of compliance with the ECtHR judgements, questioning the practical impact of such a strategy.
(Extraterritorial) Jurisdiction of the ECtHR
While the ECtHR cannot take cases upon its own initiative, it can receive applications for human rights violations from Contracting States, individuals, groups of individuals, or NGO’s. According to the Convention, an individual filing a complaint does not have to be a citizen or resident of one of the Contracting States. He/She can be a direct victim or indirectly affected, for example as family member of a deceased or missing person. The only requirement is that the alleged violation of his/her rights was committed by a Contracting State. According to Art. 56 ECHR, the Court only has jurisdiction when the alleged violation happened on the territory of a Contracting State.
The Court has expanded its jurisdiction outside of Contracting States in a number of specific situations. For example, where the Contracting State exercised “effective control” over the victim, or the region were the alleged violation occurred. In Jaloud v. The Netherlands, the Court found the Netherlands exercised effective control in a region in Iraq by operating a checkpoint. In Al-Skeini and Others v. the United Kingdom, the Court found the UK acted as occupying power in Iraq from May 2003 to June 2004, therefore had effective control. According to the Court, running a detention facility abroad is another means of exercising effective control thereby implicating extraterritorial jurisdiction by a Contracting state, as found in Al-Jedda v. the United Kingdom.
The ECtHR may also exercise extraterritorial jurisdiction in cases evoking “special features.” In Hanan v. Germany, an Afghani who lost his relatives in 2009 during an airstrike by German military on a truck near Kunduz, claimed that Germany had violated his obligation to conduct an effective investigation into the incident (Art.2 ECHR). When deciding on the admissibility of the case, the Court found that due to the grave nature of the alleged violations, Germany’s sole jurisdiction over its troops, and a lack of other available means for an effective investigation, Germany exercised jurisdiction over its troops in Afghanistan. Therefore, a claim could be made at the ECtHR that Russia’s violations – such as targeting of medical facilities in Syria by Russian planes – constitute special features justifying the exercise of extraterritorial jurisdiction by the ECtHR.
However, there are certain limitations to this approach. One, “special features” are not well defined, as the court noted in Güzelyurtlu and Others v. Cyprus and Turkey there is neither a set of special features nor a policy on how to weigh the features against each other, making it difficult to know when the court would grant such review. Two, the “special features” approach may be limited to procedural obligations under Art. 2 ECHR for failures to investigate alleged breaches of the right to life. Nonetheless, one could reasonably argue that Russia’s attacks on civilian objects constitute grave breaches of international humanitarian law and that Russia failed to conduct effective investigations into these acts. Russia therefore exercises jurisdiction abroad, binding it to the obligation under Art. 2 ECHR to investigate alleged breaches of the Convention and allowing for extraterritorial jurisdiction of the ECtHR.
Exhaustion of Local Remedies
Just like the ICC, the ECtHR acts as a ‘court of last resort’, meaning the Court only steps in when the complainant exhausted all local remedies (Art.35(1) ECHR). Based on the principle of complementarity, the Court only accepts cases of complainants who have undergone all judicial instances, either civilian or criminal, in the Contracting State against whom the complaint is filed. However, this rule is applied in a flexible manner at times. For example, in Aksoy v. Turkey and Georgia v. Russia I, the Court acknowledged that an exhaustion of remedies is not mandatory when organs of the Contracting State applied an “administrative practice” in violation of rights under the Convention. “Administrative practice” was thereby defined as a repetition of acts, tolerated by other authorities of the state.
Since Russia intervened in the Syrian conflict in 2015, the UN Independent International Commission of Inquiry on the Syrian Arab Republic (COI), human rights activists, investigative journalists, and various NGOs provided detailed documentation of how Russia’s military is repeatedly committing war crimes in Syria. The repetitive nature of Russian war crimes in Syria – spanning over a period of almost six years now – clearly qualifies as “repetition of acts”. In Georgia v. Russia I, the ECtHR also found that to assess a repetition of acts, it can consider “cases that have been brought to its attention”. This formulation might include other complaints brought before the Court – like Al-Awad v. Russia – as well as ‘cases’ mentioned in the complaint itself, either in form of detailed description of instances or reference to cases before other courts.
Russia is not only continuously denying its involvement in war crimes in Syria, Russian authorities also made no efforts to document or effectively investigate such instances. This omission and active denial can be considered as “official tolerance”. In conjunction with the well-documented “repetition of acts” one can argue that there is indeed an administrative practice on Russia’s side concerning not only violations of Art. 2 ECHR (right to life) but many others as well.
Effects of Positive Judgment
If the ECtHR admitted a case as outlined above, and rendered a positive judgment of the merits, this would not mean that any members of the Russian military would spend time in prison. ECtHR judgements come in the form of fines that the state must pay as compensation to the victims of the violations. If the Court further finds legislative, administrative, or other structures within the state which foster violations, it can order the state to make necessary structural changes. Although both judgments are binding on the state, Russia is becoming increasingly noncompliant with ECtHR judgments. According to a 2015 law, the Russian Constitutional Court must approve every ECtHR judgment before any compensations are paid, let alone structural changes. President Putin’s much criticized constitutional amendment in 2020 went even further, providing that domestic law overrules international law. It is therefore unlikely that a positive ECtHR judgement would lead to any compensation being paid to the victims of Russia’s atrocities in Syria, nor would Russia change its behavior in this regard.
In legal terms, the ECtHR appears to be a realistic option to hold Russia accountable for its atrocities in Syria. Nonetheless, political and practical realities are such that the benefits of such a case would be relatively small. Despite legal amendments to increase the ECtHR’s efficiency in dealing with individual complaints, the Court are still drawn-out affairs. In Hannan v. Germany, it took five years from initial complaint until a judgment by the Grand Chamber was rendered. In the end, a ECtHR judgment against Russia likely would not lead to monetary compensation for the victims, nor a change in Russia’s behavior in Syria. The only thing remaining would be a written judgment from a regional human rights court, affirming that Russia is committing atrocities in Syria and failing to hold the perpetrators accountable. Before initiating this type of endeavor, any complainant should weigh whether this type of symbolic victory is worth pursuing or whether other avenues of justice are more promising.