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Lighting the Shade: Effective Application of the ECHR in Areas of Conflict in Europe

“Where politics – and arms – stand between people and their rights.”
Galway 1 september 2022
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As delivered by Bjørn Berge, Deputy Secretary General of the Council of Europe

 

Dear Professor Mullally, director of the Irish Centre for Human Rights,
Distinguished participants,
Dear friends,

 

“And now I'm drinking wine in France,
The helpless child of circumstance.

Tomorrow will be loud with war,
How will I be accounted for?

It is too late now to retrieve,
A fallen dream, too late to grieve.

A name unmade, but not too late
To thank the gods for what is great;

A keen-edged sword, a soldier's heart,
Is greater than a poet's art.

And greater than a poet's fame,
A little grave that has no name.”

 

These were the telling words of the Irish poet, Francis Ledwidge, over a hundred years ago, during the First World War.
Often referred to as the Great War. This war was anything but great. What was great – bordering incomprehensible – was the scale of people’s suffering, the outrageous number of people killed, and the many more who suffered injuries that they then carried with them throughout their lives. From Ireland alone, if I am not mistaken, nearly 37,000 soldiers were killed.

Today, Europe is sadly suffering from a major war in the midst of our Continent.

Some of us thought, maybe naively, that conquest of other countries by military means was something from the distant past. Something that had no place in a developed and modern Europe. Our hope was that through trade, investment and co-operation we would all gain. Europe would flourish. And that this would be a “win-win” situation for everyone. 

Evidently, we were wrong. 

The old ghosts of previous world wars – of aggressive nationalism, flavoured with populism, hatred and manipulation –
are again haunting Europe. 

It is a paradox, in particular for the Council of Europe, since after two bloody world wars, our Organisation was established in 1949 to help ensure that such violent political forces should never again dominate European countries, but to no avail, it regretfully seems. 

The Russian invasion of Ukraine has cast a dark shadow over all of Europe, causing pain and suffering, affecting millions of people.

Here, let me quickly add that, immediately after the Russian invasion of Ukraine, the Council of Europe and its member States took firm and resolute action. Within 24 hours the Russian Federation was suspended as a member. It only took a few more weeks before the Russian Federation was expelled from the Organisation. The Italian Presidency of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General all provided leadership in that process.

Our thoughts are first and foremost with the brave Ukrainian people and their leaders, but this war affects us all in some way or another.

Parts of Eastern and Southern Ukraine have now been occupied, in addition to the illegal occupation of Crimea in 2014. In a sense, these are not “grey zones”, but illegally occupied areas that must warrant our concern, including with regard to the human rights situation of the people that live there.

More broadly, over the years, if not decades, we – as an Organisation, as well as our member States – have struggled to cope with the failure to fully implement the European Convention on Human Rights in several parts of Europe, whether we call them “grey zones,” “frozen conflicts” or “disputed areas.” 

Certainly, Ministerial meeting after Ministerial meeting has emphasised over and over again the importance of securing access to these areas and of protecting the people who live there – be that Transnistria, Nagorno-Karabakh, Abkhazia and South Ossetia, or elsewhere. 

At the Ministerial meeting in Helsinki just three years ago, member States underlined that they remained “concerned about unresolved conflicts that still affect certain parts of the continent, putting at risk the security, unity and democratic stability of member States, and threatening the human rights of populations concerned.

But still, very little progress has been achieved.

Why is that so? 
Why is this so complicated? 
And why is it close to impossible to have any real progress? 

I will try to point out a few possible considerations that might be relevant in this regard. 

But let me first of all state what may seem obvious to many – but which is regrettably not always evident for all. 
As parties and member States of the Council of Europe, there is a clear responsibility to ensure that the European Convention on Human Rights and the judgements of the Court are respected and implemented throughout the European continent. This is an undisputable, legal obligation –not a kind or gentle request.

Which brings me to my first point – political will.
The Russian Federation has been and is central to several of Europe’s current “frozen conflicts,” and during its membership in the Council of Europe it did not play a particularly helpful role when it came to improving the human rights situation, whether in South Ossetia and Abkhazia in Georgia, or Transnistria in Moldova. 

Following Russia’s expulsion from the Council of Europe and in light of the ongoing war in Ukraine, is it likely that we will see a more constructive and pragmatic Russian role in this regard? 

Probably not. 

But this should not be an excuse for us to do less. 

On the contrary, we should see how we can support Ukraine and other countries directly affected - such as Georgia and the Republic of Moldova - even more.

Secondly, it would be a mistake to generalise too much about the various “grey zones” or “frozen conflicts”.

Each has its own particular and unique characteristics. 
And on this I think that we can all agree – both governments and international organisations, including those with a special role in trying to negotiate political settlements – the OSCE and its Minsk Group among them.

Equally, that same group of countries and organisations – and all of us here today – could probably agree that the populations living in these areas are – as a matter of principle – under the protection of the Convention and our Court. 
But, regrettably, our experience is that in nearly all of these areas of conflict, we have far too often seen a deterioration of the human rights situation, including a persistent lack of effective access to our monitoring mechanisms. 

It remains essential that we are able to be on the ground, to observe, assess and monitor – as required and in line with our mandate. 

Our presence in such situations should never be seen as any form of endorsement of any parties, in particular the de-facto authorities, but simply the implementation of the Convention to help verify the human rights situation – and, in some cases, give a voice to the voiceless.

There have however been some positive developments.

Our Human Rights Commissioner’s visits to Abkhazia and South Ossetia, and more recently to Transnistria, were very important.

And our Secretary General’s consolidated reports on the conflict in Georgia, as well as the human rights situation in Crimea and the City of Sevastopol, serve as a basis for our Committee of Ministers to adopt relevant decisions.

Further, and importantly, we have worked on Confidence Building Measures (CBMs) that help divided communities to come together and build trust through dialogue on issues of common importance. 

In doing so, they also aim to promote human rights standards in post-conflict or frozen-conflict regions, and hopefully can be seen as constructive in paving the way to political progress.

A case in point is the meeting that we organised in May between civil society representatives from Armenia and Azerbaijan to discuss peace-building and reconciliation in light of a conflict that has affected both countries. This was a good exchange during which participants agreed to continue their dialogue and to work on possible joint initiatives.

Other relevant activities include registering attacks on media workers, including in areas of conflict, via the Platform to Promote the Protection of Journalism and Safety of Journalists.

And I also want to highlight the importance of the various reports, resolutions and recommendations by our Parliamentary Assembly – and in particular the emphasis that it has placed the “presumption of access principle.” The principle that our monitoring mechanisms should assume that they have access to all European territories, and that where access is denied, the reasons for that decision must be made explicit to the Committee of Ministers. 

Overall, all of the things I have mentioned have in some way made a positive difference, and we can build upon it to go even further.

And we must, because they still fall short of providing the standard of protection that should be assured in the territory of our member States. Something that we are obliged to ensure in the interests of all their people.

Thirdly, I must also mention the crucial role of our Court, as it deals both with individual cases, as well as inter-state applications, linked to areas of conflict.

From these applications, the Court has developed case law on the application of the Convention in regions outside the control of the territorial State.

These cases certainly involve many complex legal problems – including whether jurisdiction can be presumed and how such a presumption can be rebutted – or for that matter – whether jurisdiction can be limited to certain positive obligations under the Convention. And how the concept of jurisdiction interacts with the notion of accountability and the substantive obligations under the Convention.

In some instances, there have been rulings that if one state has effective control or decisive influence over part of another’s territory, it is responsible for violations there. Such cases have arisen from situations in Northern Cyprus, Transnistria, Nagorno-Karabakh, Abkhazia and South Ossetia, and other territories.

And there are currently many cases concerning Crimea and Eastern Ukraine pending before the Strasbourg Court.

All of these examples do have legal and political significance. But it is important to be clear: the Court’s process does not imply international recognition of de facto regimes or occupying powers. 

Fourthly, we must start to put citizens’ rights above politics and conflict, as the Convention always intended – and ensure that these rights are a reality for people who live in these territories.

Throughout our Organisation, and over the years, we have tried to take a proactive and pragmatic approach to achieving this. 

But, as I have already stated, it has not been enough. 

In practical terms, our monitoring activities could be further expanded and replicated where possible, and the role of our Human Rights Commissioner could also be very important. 

And here, I could also mention that our Steering Committee for Human Rights (CDDH) will present a report to the Committee of Ministers, this autumn, with proposals on the effective processing and resolution of inter-state cases by the Court.

And at last year’s Ministerial Session in Hamburg, our member States restated the importance of examining how to enhance the Committee’s tools for supervising cases of non-execution, including the persistent delay to execute the Court’s final judgments – as well as questions arising from the execution of judgments in cases relating to inter-state disputes.

Moving forward with these and other measures will of course require political will – and, ultimately, it is for member States themselves to help us push for progress.

Last, but not least, I have no doubt that this issue will be on the radar of our Organisation’s High-level Reflection Group, under the able leadership of the former President of Ireland; Ms Mary Robinson, and the group will no doubt reflect on the Council of Europe’s future in light of the current political situation.

I also believe that these matters will be relevant to a possible 4th Council of Europe Summit of Heads of State and Government, though its agenda will of course be set by the member States themselves, and the priorities and action will be theirs to decide.

Dear friends,

What is certain and unchanging are the words of the European Convention itself.

So, at this crucial – and very challenging – moment in European history, where the task of ensuring fundamental rights in areas of conflict in Europe threatens to become even more complex – we very much need conferences like this, that provide for an open and frank exchange of views on what more we can and should do. And I very much look forward to reading the conclusions from your deliberations.

But already now, I congratulate the Irish Centre for Human Rights at the National University of Ireland, Galway, for organising this important event, and I salute the Irish Presidency of the Committee of Ministers for its leadership, vision and determination.

I may add, that it is also highly relevant that the European Convention on Human Rights has played a very significant part in Northern Ireland's pathway to peace, in particular through its privileged status in the Good Friday Agreement.

Dear friends,
Yes, a major war is taking place in the midst of Europe.

Yes, we have suffered a major set-back.

And yes, the situation in which we now find ourselves will be demanding, difficult and tough for quite some time.

We must never compromise on the fact that the European Convention on Human Rights remains the ultimate benchmark for protecting human rights in Europe – throughout all of our member States, without any exception.
But let us never forget that Europe is a source of immense hope, which must not be destroyed by territorial ambitions, or the resurgence of aggressive nationalism, or the perpetuation of spheres of influence, intolerance or totalitarian ideologies.

With unity, will and determination – and the ability to discuss and negotiate - we will no doubt succeed in our joint efforts.

 

Thank you for your attention.