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Two hundred and ninety-eight passengers aboard Malaysian Airlines flight MH17 were killed when Ukrainian rebels shot down the commercial airliner in July 2014. Because of the rebels’ close ties with the Russian Republic, the international community immediately condemned the Putin regime for this tragedy. Yet, while Russia is certainly deserving of moral and political blame, what is less clear is Russian responsibility under international law. The problem is that international law has often struggled assigning state responsibility when national borders are crossed and two (or more) sovereigns are involved. The essence of the problem is that under governing legal standards, a state could provide enormous levels of military, economic, and political support to another state or to a paramilitary group in another state – even with full knowledge that the recipient will thereby violate international human rights and humanitarian law standards — but will not share any responsibility for these international wrongs unless it can be established that the sending state exercised near total control over the recipient.
The leading caselaw in this area has been handed down by the International Court of Justice (ICJ) but what adds another layer of complexity to the present situation is that the Ukraine and Russia are both parties to the European Convention; it is possible that the European Court of Human Rights (ECtHR) might well provide a different answer.
To be clear, this article concerns itself only with determining Russian responsibility for the downing of MH17. Following this tragic event, approximately five thousand Russian troops took part in what now appears to have been a limited invasion of areas of the Ukraine. Thus, there are elements of both “indirect” and “direct” Russian involvement in the Ukraine, although only the former will be addressed. The larger point involves the legal uncertainty when states act outside their borders and in doing so contribute to the violation of international human rights standards.
International Court of Justice
The two leading cases regarding transnational or extraterritorial state responsibility have been handed down by the International Court of Justice. In Nicaragua v. United States (1986) Nicaragua brought an action against the United States based on two grounds. One related to “direct” actions carried out by US agents in Nicaragua, including the mining of the country’s harbors, and on this claim the Court ruled against the United States. The second claim was based on the “indirect” actions of the United States, namely, its support for the contra rebels who were trying to overthrow the ruling Sandinista regime. Nicaragua’s argument was that because of the very close ties between the United States and the contras, the former should bear at least some responsibility for the massive levels of human rights violations carried out by the latter.
The Court rejected this position employing an “effective control” standard, which in many ways is much closer to an absolute control test. Or to quote from the Court itself: “In light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States” (par. 106, emphases supplied).
Nearly a decade later, the International Court of Justice was faced with a similar scenario in the Genocide Case (Bosnia v. Serbia). The claim made by Bosnia was that because of the deep connections between the Serbian government and its Bosnian Serb allies, the former should have some responsibility for the acts of genocide carried out by the latter. Yet, as in Nicaragua, the ICJ ruled that Serbia had not exercised the requisite level of control over the Bosnian Serbs. Thus, the Court ruled that Serbia was not responsible for carrying out genocide itself, or for directing genocide, or even for “aiding and assisting” or “complicity” in the genocide that occurred following the overthrow of Srebrenica. However, in a part of its ruling that has received far too little attention, the Court did rule that Serbia had failed to “prevent” genocide when it could have exercised its “influence” to do so, and that it had also not met its Convention obligation to “punish” those involved in genocide due to its failure to fully cooperate with the International Criminal Tribunal for the Former Yugoslavia.
Turning back to the situation involving MH17, while no action has yet been filed with the International Court of Justice (and perhaps never will be filed), according to the Nicaragua-Bosnia line of cases any attempt to hold Russia responsible for the downing of MH17 would appear likely to fail for the simple reason that the relationship between the Russian state and its Ukrainian allies was nowhere near as strong as the relationship between the United States and the contras (Nicaragua) or that between the Serbian government and its Bosnian Serb allies (Genocide Case). The point is that if responsibility could not be established in these other cases it is by no means likely that it could be established in the present situation.
European Court of Human Rights
Because Russia and the Ukraine are both parties to the European Convention of Human Rights, what also needs to be considered is how the European Court of Human Rights (ECtHR) might address this issue if a case were brought either under the inter-state complaint mechanism, or (more likely) by means of an individual complaint filed by a family member killed in the crash.
Although the European Court of Human Rights has increasing dealt with cases with an extraterritorial element, in nearly every instance the claim has been based on European states carrying out “direct” actions in other states – whether it be NATO forces dropping bombs in Serbia and killing civilians on the ground (Bankovic), or Turkish officials arresting a suspected terrorist in Kenya (Ocalan), or British troops killing civilians in Iraq (Al-Skeini) – rather than instances where the Convention states have acted “indirectly.” The most pertinent ECtHR case is Ilascu v. Russia and Moldova where the applicants (Moldovan citizens) claimed they were arrested at their homes in Tiraspol by security personnel, some of whom were wearing the insignia of the former USSR. Unlike the ICJ’s “effective control” standard, the ECtHR ruled that Russia had exercised what it termed as “effective authority” or “decisive influence” over paramilitary forces in Moldova and because of this they bore responsibility for violations of the European Convention suffered by the applicants. Thus, on the basis of Ilascu, there is at least some possibility that due to the “effective authority” or the “decisive influence” that Russia appeared to exercise over its Ukrainian rebel allies, the ECtHR, unlike the ICJ, could assign responsibility to Russia for the downing of MH17.
Conclusion
Notwithstanding the immediate international condemnation of the Putin regime following the MH17 tragedy, international law seems to exist in a totally removed from international opinion and consensus. Under the caselaw of the International Court of Justice, Russia would appear not to be responsible for the downing of MH17 on the basis that it would be difficult to establish that the Russian government had exercised the requisite level of “effective control” over its Ukrainian rebel allies. On the other hand, if a case were brought before the European Court of Human Rights, there is at least some chance of establishing Russian responsibility on the basis of the Court’s previous ruling in Ilascu, although it should be said that this is not a particularly strong precedent.
The larger point is to ask why state responsibility is so difficult to establish when international borders are crossed and states act in another country, at least indirectly, as in the present situation. The key element ought to be the extent to which a state has acted in a way that leads to violations of international human rights and humanitarian law standards. Employing such a standard, it would be eminently clear – would it not? – that Russia would be at least partly responsible because of its strong relationship with Ukrainian rebels that were both armed (by Russia) and dangerous, and which had already shown a complete disregard for international law.
What are the ties that bind us together? How can we as a global community share the same ideals and values? In celebration of Human Rights Day, we have asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses.
* * * * *
“My area of research is complementary forms of international protection, which is where international refugee law and international human rights law merge. Since the beginning of time, there has been an element of compassion in customary and religious norms justifying the acceptance of and assistance to persons banned from their communities or forced to leave their homes for reasons of poverty, natural disasters, or other reasons outside their control. Based on a general conviction that the alleviation of suffering is a moral imperative, many industralized countries included in their domestic migration practice the possibility to grant residence permits to certain categories of persons, who seemingly fall outside their international obligations, but who they considered to deserve protection and assistance because of a sense that this is what humanity dictates. In the past twenty years, many of these categories have become regulated and categorized as beneficiaries of protection, either through a broad interpretation of the refugee concept or through the adoption of new legislation confirming the domestic practice of States, such as the EC Qualification Directive. I find this to be a fascinating area of international law because, it shows how human rights and the notion of ‘humanitarianism’ (i.e. reasons of compassion, charity or need) have generated legal obligations to protect and assist aliens outside their country of origin.”
“My work focuses on the forms and functions of the law when faced with contemporary mass crimes and their traces (testimony, archives, and the (dead) body). It questions the relationship between law, memory, history, science, and truth. To do so, I call into question the various legal mechanisms (traditional/alternative, judicial/extrajudicial) used in the treatment of mass crimes committed by the State and their heritage, especially at the heart of criminal justice (national and international), transitional justice, international human rights law, and constitutional law. In this context I have explored the close relationship between international criminal law and international human rights law. These two branches of law, that have distinct objects and goals, are linked by what they have in common: the protection of the individual. Their interaction culminated in the 90s when international criminal law, and in a larger sense transitional justice, boomed: an actual human rights turn took place with the strong mobilization of human rights in favour of the ‘fight against impunity’ of the gravest international crimes. At the heart of this human rights turn lays the consecration of a new human right, namely, the ‘right to the truth’, which is the object of my current research.”
“I decided early on to focus in my work on how rights perform when they are put under some kind of strain. That could be panic and fear emerging from a terrorist attack, or resource limitations at national or international level, or political structures that make effective enforcement of rights (un)feasible, for example. It seemed to me to be important to think about the resilience of the language and structures, as well as the law, of human rights because in the end of the day we rely on states to deliver rights in a meaningful way and this raises all sorts of challenges around legitimacy, will, embeddedness, international relations, domestic politics, legal systems, constitutional frameworks, and so on. These are factors that have to be accounted for when we think about what makes human rights law work as a means of ensuring human rights in practice; as a means of limiting the power of states to do as it wishes, regardless of the impact on individual and group welfare, dignity, and liberty. Thus, rather than specialise in any particular right per se, my interest is in frameworks of effective rights protection and understanding what makes them work, or makes them vulnerable, especially in times of strain or crisis.”
“I have always been interested in the protection of individual rights from undue interference by executive authority. So, my scholarly roots arguably originate in classic social contractarianism. In my work, I have been mostly focusing on civil and political rights, whether in the context of constitutional law, criminal justice, or international (human rights) law. An important part of my research examines the (alleged) tension between ‘liberty’ and ‘security’ and explores how this tension plays out in both domestic and international contexts, often addressing the interface between the two dimensions. National security issues, such as terrorism, have featured prominently in my scholarship, but my human rights-related work also extends to the field of preventive justice, including questions relating to the post-sentence detention of ‘dangerous’ individuals for public safety purposes. A fascinating development that has captured my attention recently concerns the expansion of executive power of international organisations. International bodies such as the UN Security Council have become increasingly active in the administration and regulation of matters that once used to be the exclusive domain of States. This shift in governance functions, however, has not been accompanied by the creation of mechanisms to restrain or review the exercise of executive power. I suspect that it is in this area that much of my research will be carried out in the years ahead.”
“I specialize in the interaction between international financial markets and human rights, both in relation to (a) understanding international legal obligations relating to socio-economic rights in the context of financial processes and dynamics; and (b) the business and human rights debate as it applies to financial institutions. My focus on these areas resulted from an awareness that as the world economy globalised over the last twenty years, the financial markets changed beyond all recognition to become a predominant force shaping economic processes. Therefore, although they are generally seen as remote from immediate human rights impacts, they set the context of socio-economic rights enjoyment. The practical challenges involved in realising these rights can only be fully understood by accepting the way financial markets shape economic and policy making options, and outcomes for individuals. As this is a huge field of enquiry and many of the connections have not so far been extensively explored from a human rights point of view, my focus tends to be determined by (a) a desire to bring new areas of the financial markets into a human rights framework, and (b) a desire to respond to issues of importance as they arise, such as financial crisis and austerity.”
— Mary Dowell-Jones, Fellow, Human Rights Law Centre, University of Nottingham, and author of ‘Financial Institutions and Human Rights’ in the Human Rights Law Review
* * * * *
“My research covers a variety of human rights issues, however I have a particular interest in the analysis of domestic violence as a human rights issue. Domestic violence affects vast numbers of people in every state around the globe. The practice of domestic violence constitutes a breach of internationally recognised rights such as the right to be free from torture and inhuman or degrading treatment; the right to private and family life; and, in some circumstances, the right to life itself. However it is only relatively recently that domestic violence has been analysed through the lens of human rights law. For example, it is only since 2007 that judgments of the European Court of Human Rights have been issued which directly focus on domestic violence. Nevertheless, there is now an ever-increasing awareness of domestic violence as a human rights issue, and there have been a number of important recent developments, such as the adoption of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014.”
“Human rights discourse has been proliferating. Yet I feel that the proliferation of the discourse of human rights does not contribute to the success of implementing human rights on the ground. Perhaps one reason is that human rights scholarship and activism has great appeal to idealists and while idealists whom I admire are good in articulating ideals, they are less capable of carrying out these ideals. I believe that a major difficulty in implementing human rights is the costs of implementation. Human rights organizations may be justifiably appalled by police brutality and urge states to restructure their police forces, but such a restructuring is not costless and it may be detrimental to other urgent concerns including human rights concerns. The good intentions of activists and the scholarly work of theorists (to which I have been committed in the past) may ultimately turn out to be detrimental to the protection of human rights. What I think is urgently needed in order to carry out the lofty ideals is not more human rights scholarship but scholarship which will focus its attention on the best ways to implement the most urgent and basic humanitarian concerns. This is not what I have been doing in my own work but I am convinced it is what needs at this stage to be done. In doing so one ought to constrain idealism in favor of modest pragmatism. Ironically those who can most effectively pursue modest pragmatism are not human rights activists or theorists.”
— Alon Harel, Professor in Law, Hebrew University Law Faculty and Center for Rationality, and author of ‘Human Rights and the Common Good: A Critique’ in the Jerusalem Review of Legal Studies
* * * * *
“It had long been assumed that the best protection of human rights was a strong, Western-style democracy – if it came to the test, the people would always decide in favour of human rights. Recent developments, however, have challenged this assumption: human rights restrictions introduced after 9/11 in the United States and other Western democracies had strong popular support; the current British government’s plans to weaken (or even withdraw from) the ECHR system seem primarily designed to gain votes; Swiss voters have approved several popular initiatives that conflict with international human rights guarantees. Is the relationship between democracy and human rights not as symbiotic as it is often thought? Do direct democratic systems lend themselves more to tyranny of the majority than representative democracies? What is needed so that the human rights of those in the minority can be effectively protected? These, I believe, are among the most pressing questions that human rights lawyers must confront today.”
On Saturday, 8 March, we celebrate International Women’s Day. But is there really anything to celebrate?
Last year, the United Nations declared its theme for International Women’s Day to be: “A promise is a promise: Time for action to end violence against women.” But in the United Kingdom in 2012, the government’s own figures show that around 1.2 million women suffered domestic abuse, over 400,000 women were sexually assaulted, 70,000 women were raped, and thousands more were stalked.
In a nutshell, this means that men’s violence against women is simply the most extreme manifestation of a continuum of male privilege, starting with domination of public discourse and decision-making, taking the lion’s share of global income and assets, and finally, controlling women’s actions and agency by force if necessary.
Throughout history and in most cultures, violence against women has been an accepted way in which men maintain power. In this country, the traditional right of a husband to inflict moderate corporal punishment on his wife in order to keep her “within the bounds of duty” was only removed in 1891. Our lingering ambivalence over the rights and wrongs of intervening in the face of domestic violence (“It’s just a domestic” as the police used to say) continues more than a century later. An ICM poll in 2003 found more people would call the police if someone was mistreating their dog than if someone was mistreating their partner (78% versus 53%). Women recognise this culture of condoning and excusing violence against them in their reluctance even today to exert their legal rights and make an official complaint. The most recent figures from the Ministry of Justice show that only 15% of women who have been raped report it to the police. And when they do, they’re likely to be disbelieved: the ‘no-crime’ rate (where a victim reports a crime but the police decide that no crime took place) for overall police recorded crime is 3.4%; for rape it’s 10.8%. All this adds up to a culture of impunity in which violence can continue.
And it’s exacerbated by our media. When the End Violence against Women Coalition, along with some of our members, were invited to give evidence to the Leveson Inquiry, we argued that:
“reporting on violence against women which misrepresents crimes, which is intrusive, which sensationalises and which uncritically blames ‘culture’, is not simply uninformed, trivial or in bad taste. It has real and lasting impact – it reinforces attitudes which blame women and girls for the violence that is done to them, and it allows some perpetrators to believe they will get away with committing violence. Because such news reporting are critical to establishing what behaviour is acceptable and what is regarded as ‘real’ crime, in the long term and cumulatively, this reporting affects what is perceived as crime, which victims come forward, how some perpetrators behave, and ultimately who is and is not convicted of crime.”
When do states become responsible for private acts of violence against women?
The UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) says in its General Recommendation No. 19 that states may be responsible for private acts “if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence.”
Due diligence means that states must show the same level of commitment to preventing, investigating, punishing and providing remedies for violence against women as they do other crimes of violence. Arguably, our poor rates of reporting and prosecution suggest that the UK is not fulfilling this obligation.
What are some possible policy solutions to eliminate violence against women?
The last Government developed a national strategy to tackle this problem and the current Government has followed suit, adopting a national action plan that aims to coordinate action at the highest level. This has had the single-minded backing of the Home Secretary, Theresa May — who of course happens to be a woman. Under this umbrella, steps have been taken to focus on what works — although much more needs to be done, for example on the key issue of prevention –changing the attitudes that create a conducive environment for violence. Research by the UN in a number of countries recently showed that 70-80% of men who raped said did so because they felt entitled to; they thought they had a right to sex. Research with young people by the Children’s Commissioner has highlighted the sexual double standard that rewards young men for having sex while passing negative judgment on young women who do so. We need to rethink constructions of gender, particularly of masculinity.
What will the End Violence Against Women Campaign focus on this year?
End Violence Against Women welcomes the fact that the main political parties now recognize that this is a key public policy issue, and we’ll be using the upcoming local and national elections in 2014 and 2015 to question candidates on their practical proposals for ending violence against women and girls. We need to make sure that women’s support services are available in every area. And we’ll be working on our long-term aim of changing the way people talk and think about violence against women and girls — starting in schools, where children learn about gender roles and stereotypes — much earlier than we think. We hope Michael Gove will back our Schools Safe 4 Girls campaign. We also look forward to a historic milestone in April, when the UN special rapporteur on violence against women makes a visit to the UK to assess progress.
On International Women’s Day this year, what is the most urgent issue for the world to focus on?
As Nelson Mandela said: “For every woman and girl violently attacked, we reduce our humanity. Every woman who has to sell her life for sex we condemn to a lifetime in prison. For every moment we remain silent, we conspire against our women.” While women across the world are raped and murdered, systematically beaten, trafficked, bought and sold, ending this “undeclared war on women” has to be our top priority.
Janet Veitch is a member of the board of the End Violence against Women Coalition, a coalition of activists, women’s rights and human rights organisations, survivors of violence, academics and front line service providers calling for concerted action to end violence against women. She is immediate past Chair of the UK Women’s Budget Group. She was awarded an OBE for services to women’s rights in 2011.
On 22 March 2014, the University of Nottingham Human Rights Law Centre will be hosting the 15th Annual Student Human Rights Conference ‘Mind the Gender Gap: The Rights of Women,’ and Janet Veitch will be among the experts on the rights of women who will be speaking. Full details are available on the Human Rights Law Centre webpage.
Human Rights Law Review publishes critical articles that consider human rights in their various contexts, from global to national levels, book reviews, and a section dedicated to analysis of recent jurisprudence and practice of the UN and regional human rights systems.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
The sentences of those who murder more than one person, or who kill in particularly gruesome circumstances are naturally the stuff of headlines. So it was again on 18 February when a specially constituted bench of the Court of Appeal, headed by the Lord Chief Justice, ruled that there is no legal bar on whole life orders for particularly heinous offences. In such cases, judges can continue to order that offenders deserve to remain in prison for the rest of their lives.
The case arose because in July 2013, the Grand Chamber of the European Court of Human Rights found in Vinter and others v United Kingdom that even offenders on whom whole life orders had been imposed had to have a prospect of release. To deny them this hope meant that the punishment was inhuman and degrading, thus infringing the prohibition of such punishments in Article 3 of the European Convention of Human Rights. It had to be clear to offenders at the time of sentencing that if circumstances changed and there was no further justification for continuing their imprisonment, there was an appropriate procedure in place for reconsidering continued detention. English legislation allowing for the release of prisoners facing whole life sentences only on compassionate grounds was deemed insufficient to give prisoners hope as the Secretary of State for Justice had stated in the ‘lifers’ manual’ that he would only consider the release on compassionate grounds of prisoners who were terminally ill or seriously incapacitated. In the view of the European Court, allowing someone out of prison only when they are at death’s door was not ‘release’ in the full sense of the term. This judgment left some English courts uncertain about whether they should impose whole life sentences, particularly as the UK government declared that it was reluctant to change the law or policy in terms of which it should be applied.
The Court of Appeal’s finding was presented by a large section of the press as a ruling that prisoners subject to life orders could be denied all prospect of release. Even the BBC led with ‘Court of Appeal upholds whole-life principle’.
The reality is far more complex. The European Court of Human Rights never held that courts could not sentence someone to whole life imprisonment. The confirmation that judges could continue to impose this sentence was therefore unsurprising. What the European Court had established was the principle that, even where such sentences were imposed, there still had to be a prospect of release for the offender who could demonstrate that his continued detention was no longer justified, because, for example he no longer posed a risk to society.
Close reading of the judgment shows that the Court of Appeal accepted this principle. It disagreed with the European Court only on whether the powers of the Secretary of State for Justice were so limited that he might not be able to release someone when required to do so. According to the Court of Appeal, the European Court had been misled by the lifers’ manual, which wrongly purported to limit the release powers of the Secretary of State. The Court of Appeal explained that as a matter of law, the Secretary of State was required to exercise his powers in conformity with the European Convention on Human Rights and the common law. This meant that in every case where a prisoner claims that there are exceptional circumstances that justify his release from a whole life sentence, the Secretary for State will have to consider the claim and give a reasoned decision for allowing or rejecting it.
This outcome is rich in irony. Chris Grayling, the Secretary of State for Justice, has been scathingly critical of the European Court of Human Rights’ decision in the Vinter case, and saw the decision of the Court of Appeal as restoring whole life sentences. He will now be responsible in his official capacity for the procedure which is designed to ensure prisoners subject to whole life orders retain a prospect of release, something which he resisted by declining to amend the lifers’ manual. Nor will the Secretary of State be able to allow his antipathy to the release of such prisoners to influence his decisions, which, the Court of Appeal emphasised, will be subject to the rigours of judicial review as required by the common law.
Together with Pete Weatherby QC and Simon Creighton, I argued in a recent article in the Human Rights Law Review that the consequences of the European Court’s judgment in the Vinter case are far-reaching. In order to ensure that prisoners serving whole life sentences have a hope of release, prison regimes will have to provide them with opportunities to prepare themselves to lead a crime free life; they must have an opportunity to rehabilitate.
Moreover, these release procedures must meet the requirements of due process. We recommend that the Secretary of State refer the release applications of prisoners serving whole life sentences to the Parole Board. Although current law, as interpreted by the Court of Appeal, would allow him to take the final decision in such cases, we propose that he should give the Parole Board the power to decide for it is fundamentally wrong for a politician to have the final say over whether someone should be released.
Finally, we suggest that the Secretary of State announces as a matter of urgency when whole life sentences will be reconsidered routinely. We suggest that this should happen after no more than 25 years have been served and at regular intervals thereafter.
In the end, what matters is that even the worst and most reviled offenders are treated fairly. Justice requires that regard be had for their rights too. It should not have required Europe to spell out that it was necessary to do so. The Court of Appeal has now gently reminded the Secretary of State of his common law duties in this regard too. One can only hope that misplaced opposition to European intervention does not lead to a failure to act.
Human Rights Law Review promotes awareness, knowledge, and discussion on matters of human rights law and policy. The Review publishes critical articles that consider human rights in their various contexts, from global to national levels, book reviews, and a section dedicated to analysis of recent jurisprudence and practice of the UN and regional human rights systems.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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acts of violence against women?
