DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE
- Sargsyan is the «twin brother» of Chiragov and Others. The procedural reasons for my dissent in the latter case are also valid, in a large measure, in the present case, simply because the flaws in both judgments are similar. As in Chiragov and Others, the present case raises an issue of compatibility of international humanitarian law with the European Convention on Human Rights (the Convention), which the majority avoid. Here again, the majority do not face the thorny questions of the case, both in terms of the evidence presented and the legal questions of the jurisdiction of the respondent State over the ceasefire line and the adjacent area and its «responsibility to protect» civilians within its territory <*>. Having acknowledged that Gulistan is a life-threatening, no-go zone and that the respondent State’s refusal of access by civilians to their alleged homes, property and family graves in the extremely sensitive military area of Gulistan is «justified», the majority nonetheless suggest vague «alternative measures», derived from the Madrid political proposal <**>, without providing specifics. By treating the cases of Chiragov and Others and Sargsyan as a putative inter-State case, and suggesting to the respondent States similar «alternative measures», the European Court of Human Rights (the Court) wants to send a message to the conflicting parties. In general, the pages of the judgment exude discontent, amounting to disapproval of the negotiation procedure. Left unstated, but implicit in the majority’s reasoning, is that the Court will no longer wait for politicians to come to terms with the Nagorno-Karabakh conflict and its human consequences. If need be, the Court is willing to replace diplomacy, in view of the fact, censured by the majority, that the peace negotiations «have not yet yielded any tangible results» (see paragraph 236).
<*> I refer to the rule formulated in the Report of the International Commission on Intervention and State Sovereignty (ICISS), «The Responsibility to Protect», Ottawa, 2001.
<**> I refer here to the Organisation for Security and Co-operation in Europe (OSCE) Minsk Group’s Co-Chairs last articulation of the Basic Principles, of November 2007, in Madrid.
- Non-exhaustion of domestic remedies
- The constitutional and legal framework
- The majority reject the objection of non-exhaustion of domestic remedies on the basis of two arguments: it was not explained how the available constitutional and legal framework would apply in the specific case of the applicant and insufficient data was provided by the respondent Government on the nature and outcome of the civil proceedings brought by ethnic Armenians in Azerbaijani courts. These arguments are not valid. The majority failed to consider that there were no constitutional or legal provisions in the respondent State prohibiting ownership of property by ethnic Armenians or their return to Azerbaijan or depriving them of their property as a result of the Nagorno-Karabakh conflict. Furthermore, the majority denied en bloc the applicability of norms of the Constitution, the Civil Code and the Land Code to the applicant’s claims, implying without any further explanation that the assessment of the facts of the case could not be based on these norms and thus assuming what had to be demonstrated. The logical fallacy incurred is patent. Circulus in demonstrando!
In so doing, the majority imposed their own assessment of domestic law, as if they were sitting as a first-instance court, without giving the domestic courts the opportunity to express their own views on the application of domestic law to a novel legal issue, with possible major systemic legal consequences in view of the estimated number of displaced persons <*>.
<*> I have already referred to this censurable way of proceeding in a case where the persons potentially interested in the outcome of the case were not so numerous (see my separate opinion appended to Vallianatos and Others v. Greece [GC], Nos. 29381/09 and 32684/09, 7 November 2013).
- The available domestic remedies
- Moreover, there is a judicial system functioning in Azerbaijan with abundant case-law regarding civil cases brought by ethnic Armenians in Azerbaijani courts in housing cases. It is highly regrettable that the majority evaded the crucial question raised by the applicant concerning the alleged existence of an «administrative practice» on the part of the Azerbaijani authorities which would prevent the applicant from making use of existing remedies. In other words, the core of the objection was not dealt with. In any case, given the applicant’s ability to instruct a lawyer in the United Kingdom, he could not claim that the judicial system in Azerbaijan was inaccessible to him owing to the lack of a postal service or diplomatic relations between Azerbaijan and Armenia <*>.
<*> See Pad and Others v. Turkey (dec.), No. 60617/00, § 69, 28 June 2007, and International Law Commission (ILC), Third Report on Diplomatic Protection (A/CN.4/523), 2002, §§ 82 — 83.
- Preliminary conclusion: deviating from Cyprus v. Turkey
- A comparison of the present case with Cyprus v. Turkey ([GC], No. 25781/94, ECHR 2001-IV) is revealing. In the inter-State case between Cyprus and Turkey, the Turkish Government presented a list of cases brought by Greek Cypriots in Turkish Cypriot courts, which included cases relating to trespass by other persons and unlawful cultivation of land belonging to Greek Cypriot plaintiffs in the Karpas area and where the claims of the plaintiffs were accepted by the competent courts of the «Turkish Republic of Northern Cyprus» («TRNC»). The Cypriot Government argued that any remedies which might exist in Turkey or in the «TRNC» were not practical or effective for Greek Cypriots living in the government-controlled area and that they were ineffective for enclaved Greek Cypriots having regard to the particular nature of the complaints and the legal and administrative framework set up in the north of Cyprus. As regards the case-law of «TRNC» courts referred to by the Turkish Government, the Cypriot Government claimed that it related to situations that were different from those complained of in the application, i.e., to disputes between private parties and not to challenges to legislation and administrative action. The fate that befell the Cypriot Government’s arguments is well known: the Court considered that the Cypriot Government had failed to rebut the evidence laid before the Commission that aggrieved Greek Cypriots had access to local courts in order to assert civil claims against wrongdoers, and held that no violation of Article 13 of the Convention had been established by reason of the alleged absence of remedies in respect of interferences by private persons with the rights of Greek Cypriots living in Northern Cyprus under Article 8 of the Convention and Article 1 of Protocol No. 1 <*>. The same should apply in the present case.
<*> See Cyprus v. Turkey, cited above, § 324. Moreover, the Court concluded that there had been a violation of Article 13 of the Convention by reason of the failure to provide Greek Cypriots not residing in northern Cyprus with any remedies to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1. To reach such a conclusion, the Court proceeded with a thorough analysis of the constitutional framework of the «TRNC». That did not happen in the present case. As shown above, a similar analysis in the present case would have demonstrated that no constitutional restraints existed for restitution of property claims by citizens of Armenian origin.
- The Court should not have double standards, following one line of reasoning with regard to Cyprus and the opposite with regard to Azerbaijan. In the Cypriot inter-State case the Court did not require that the cases dealt with in the occupied part of Cyprus by «TRNC» courts should precisely concern restitution of property claims. It sufficed that civil claims of Greek Cypriots had been entertained by the «TRNC» courts to conclude that these courts had to be regarded as affording remedies to be exhausted. The Azerbaijani Government produced evidence in support of their contention that court remedies were available and highlighted the claims brought by a number of litigants of Armenian origin in Azerbaijani courts in civil cases and specifically in housing cases. This unrebutted evidence should have sufficed for the Government’s objection to be accepted.
I am therefore not persuaded that any attempt to use the available domestic remedies was destined to fail. As the Court has reiterated on many occasions, the existence of doubts as to the efficacy of domestic remedies does not absolve the applicant from the obligation to, at least, try to use them <*>. It is regrettable that this principle is not upheld in the present case. In other words, for the majority, subsidiarity plays no role in this part of Europe.
<*> See, for example, Sardinas Albo v. Italy (dec.), No. 56271/00, ECHR 2004-I, and Brusco v. Italy (dec.), No. 69789/01, ECHR 2001-IX.
III. Lack of victim status
- Victim status with regard to the applicant’s house and plot of land
- The applicant’s victim status is in doubt. With regard to his house and other property, the majority do not know whether, when and by whom they were destroyed. But the majority cannot be unaware of the fact that, in his first submissions of 10 July 2006, the applicant himself had stated that his house had been destroyed during the bombardment of the village in 1994 <*>. It was only in his heirs’ later submissions that it was argued that the walls of the house were still standing, while the roof had fallen in, and the applicant had been referring to his father’s house when he stated, in his first submissions, that the house had been destroyed. These late submissions merit no credence, and the circumstance that the applicant’s heirs even presented to the Court testimonial evidence (Mr Tavad Meghryan’s statement) of the present existence of the standing house shows just how far they were willing to go to put up a case.
<*> See annex 10 to the applicant’s observations dated 31 May 2010, which contains the applicant’s statement dated 10 July 2006.
- At all events, the evidence produced by the applicant and his heirs in support of his property claims is not convincing, as actually admitted by the majority in paragraph 196. The contradictory nature of the applicant’s submissions was not clarified by his explanations. The probative value of the technical passport with no reference to a primary title of ownership, with an empty field entitled «land parcel size according to official documents», such information being required by paragraph 2.2 of the Standard Reporting Forms Instructions <1>, and with the incorrect official stamp for the issuing authority <2> and the incorrect name of the district in the emblem of the stamp <3>, is close to nil. Not even an extraordinary «flexible» assessment of the face value of that evidence can save it from a strong suspicion of having been fabricated. Furthermore, the applicant based his property claims on written statements of witnesses who had not been submitted to cross-examination, as the majority also acknowledge in paragraph 193. The witnesses presented contradictory testimony on crucial points. For example, Mr Ghulyan Yura’s statement that the applicant built his house «on the plot of land provided to him by the collective farm» contradicts that of Mrs Kachatryan, secretary to the board of the village council of Gulistan, who stated that the applicant had been allowed to divide the plot of land that had already been allotted to his father <4>. The chairman of the State Land and Mapping Committee of the Republic of Azerbaijan, Mr Garib Mammadov, himself affirmed that «the village councils referred to in the case had no authority to adopt a decision on allocation of lands adjoining the house» <5>. Mr Yura’s testimony that there were four rooms on the second floor also contradicts the testimony of Mrs Elmira Chirkinyan and Mrs Lena Sargsyan to the effect that there were three rooms on the second floor <6>. Mrs Lena Sargsyan’s testimony that the total area of the plot of land was 1,500 square meters is contradicted by that of Mrs Elmira Chirkinyan, who said that it was a total of 1,000 square meters <7>. It beggars belief that the applicant could not offer more reliable evidence. Drawing plans and photos of a house do not represent binding proof of immovable property.
<1> See annex 32 to the respondent Government’s submissions of 3 July 2012.
<2> See in the technical passport the erroneous reference to «The State Republic — Azerbaijan SSR» instead of the correct reference to «The Republic of Azerbaijan».
<3> See in the technical passport the erroneous reference to «Shahumyan district» instead of the correct reference to the «Goranboy district».
<4> Compare Mr Yura’s statement in annex 13, dated 15 May 2010, the applicant’s observations dated 31 May 2010, and paragraph 5 of Mrs Kachatryan’s statement.
<5> See annex 34.
<6> See annex 12 to the applicant’s observations dated 31 May 2010, § 7, and annex 14 to the applicant’s observations of the same date, § 11.
<7> See annex 12 to the applicant’s observations dated 31 May 2010, § 8.
Accordingly, the majority’s assumption that the house «still exists though in a badly damaged state» is pure speculation, based on an inadmissible reversal of the burden of proof which exonerates the claimant from proving the existence of the claimed fact and imposes on the respondent party the obligation to prove its non-existence (see paragraph 197: «In the absence of conclusive evidence that the applicant’s house was completely destroyed before the entry into force of the Convention»). The same criticism applies to the land of which the applicant claims to be the owner.
- Victim status with regard to the family graves
- The more complex question of the applicant’s complaint regarding his right of access to his relatives’ graves would have merited the Court’s attention. Had it been proven that the applicant did indeed live and had his family graves in the area of Gulistan, that claim would have been arguable in the light of Poluhas Dodsbo <*>. But no sufficient evidence of the applicant’s residence and no evidence at all of the existence, location and ownership of the alleged family graves were ever added to the file, thus definitively undermining these claims. On top of these deficiencies, the video evidence produced to the Court is that the two cemeteries in Gulistan have been damaged, but the Court ignores the question of who did it or when the damage was caused. The satellite images did not even show the locations of the cemeteries in the village. To accept the applicant’s alleged residence on the basis of incomplete copies of the applicant’s former Soviet documents and the alleged existence, location and ownership of his family graves in Gulistan on the sole basis of his own word shows, once again, the measure of unlimited flexibility with which the majority approached the evidence produced by the applicant. Finally, the alleged «right to return to the village» as a facet of the applicant’s «private life» widens the ambit of Article 8 well beyond its known borders <**>.
<*> See Poluhas Dodsbo v. Sweden, No. 61564/00, § 24, ECHR 2006-I.
<**> Compare and contrast paragraph 257 of the present judgment with the statement in Loizidou v. Turkey (merits), 18 December 1996, § 66, Reports of Judgments and Decisions 1996-VI, where the Court found, when interpreting the concept of «home» in Article 8: «Nor can that term be interpreted to cover an area of a State where one has grown up and where the family has its roots but where one no longer lives».
- Preliminary conclusion: the limits of the Pinheiro Principles
- When judicial authorities are confronted with undocumented property restitution claims from refugees and displaced people, a certain degree of flexibility may be required, according to the Pinheiro Principles <*>. Indeed, in situations of forced, mass displacement of people it may be impossible for the victims to provide the formal evidence of their former home, land, property or even place of habitual residence. Nonetheless, even if some flexibility may be admitted in terms of the Court’s evidential standards in the context of property claims made by especially vulnerable persons, such as refugees and displaced persons, there should be reasonable limits to the flexible approach of the Court, since experience shows that mass displacement of people fosters improper property claims by opportunists hoping to profit from the chaos. Unlimited flexibility will otherwise discredit the Court’s factual assessment. Having failed to meet his burden of proof, the applicant relied on the Court’s flexibility, which in this case exceeded all reasonable limits, as it accepted clearly contradictory testimonial and documentary evidence as being sound and reliable. Such blatant contradictions would strongly suggest a fabricated version of the facts, thus undermining the applicant’s victim status. In view of these inconsistencies and uncertainties, I can only conclude that this is an artificial case, built on a shaky evidential basis, which was cherry-picked as a convenient mirror image of Chiragov and Others.
<*> See principle 15.7 of the Pinheiro Principles, invoked in the judgment. The considerable degree of the Court’s flexibility enjoyed by the Court can be seen in paragraphs 140, last sentence, and 141 of the judgment.
- Jurisdiction over the ceasefire line and the adjacent area
- The time frame of the Court’s assessment
- Gulistan is located between two frontlines of opposing military forces from Azerbaijan and the «Nagorno-Karabakh Republic». The village and the Azerbaijani military positions are on the north bank of the river Indzachay, which constitutes not only a natural dividing line, but also the ceasefire line drawn up at the end of the war. Both the Azerbaijani and Armenian maps show the village as being situated on the line of contact between the two armies as frozen by the Bishkek Protocol of May 1994. The «Nagorno-Karabakh Republic» military positions are on the south bank of the river. The village was almost entirely destroyed, supposedly during battlefield engagements. Agricultural equipment destroyed during the war remains in that state. The place is surrounded by landmines. Every so often wild animals trigger mines. Snipers are actively at work. There are frequent incidents of shooting from both sides, causing casualties. In short, anyone attempting to reach the village or to use the adjacent field risks death or serious injury from the mines or live fire from the opposing armies.
- The location of the exact positions of the two armies is crucial in determining the issue of jurisdiction. The applicant and the Armenian Government have submitted that the Azerbaijani army is in control of the village, and in particular that it has military positions in the village and on its outskirts, while the «Nagorno-Karabakh Republic» forces are stationed on the other side of the river Indzachay. The respondent State categorically denies this, stating that the Armenian military positions are closer to the village, which is within their shooting range, and positioned on a steep slope, providing them with a military advantage <*>. On the two diverging points of fact, namely the presence of the «Nagorno-Karabakh Republic» army in the southern part of the ceasefire line and the presence of the Azerbaijani army in the village of Gulistan, the majority affirm that the forces placed south of the river are those of the «Nagorno-Karabakh Republic» army, and not those of Armenia (see paragraphs 134 and 136), and that «there are a number of elements which indicate a presence of Azerbaijan positions and thus of Azerbaijan soldiers in the village», although they add that they do not know whether there have been Azerbaijani forces in Gulistan from 15 April 2002 until the present time (see paragraphs 137 and 138).
<*> See the various testimonies of Azerbaijani officers in Annexes 2 — 8 to the submissions of the respondent Government of 3 July 2012.
In the circumstances of the present case, the Court had to ascertain whether Azerbaijan in fact had effective control over Gulistan and its surrounding area at least after June 1992, i.e., when the applicant, his family and many other Armenians of the Shahumyan region were allegedly attacked by Government military forces and expelled, and until the date of delivery of the present judgment <*>. As in , the military actions in the area of Gulistan at the relevant time (June 1992) did not constitute «the source of the dispute»; instead, they were «the source of the rights claimed» by the applicant, and to that extent come under the jurisdiction ratione temporis of this Court <**>.
<*> In and Others v. Moldova and Russia [GC], No. 48787/99, §§ 330 and 392, ECHR 2004-VII, the Court assessed the effective control until the date of delivery of the Grand Chamber judgment. This approach was confirmed in Catan and Others v. Moldova and Russia [GC], Nos. 43370/04, 8252/05 and 18454/06, §§ 109 and 111, ECHR 2012.
<**> See v. Slovenia [GC], No. 71463/01, §§ 159 — 163, ECHR 2009. For my interpretation of the Court’s ratione temporis jurisdiction, see my separate opinion in Mocanu and Others v. Romania [GC], Nos. 10865/09, 45886/07 and 32431/08, ECHR 2014.
- The assessment of evidence
- Basically, the evidence referred to by the majority in support of their conclusions on the jurisdiction issue are the results of the American Association for the Advancement of Science (AAAS) report, which refers to satellite images taken in 2005, 2009 and 2012, and the DVD submitted by the applicant in 2008 (see paragraph 137). I have serious doubts about the use of this evidence.
In a letter of 16 December 2013, the President of the Grand Chamber decided to grant the respondent Government’s request, on national security grounds, not to disclose to the Government of Armenia images 6 — 11, 13 and 14, as contained in the report provided by the AAAS in November 2013 at the Court’s request. Accordingly, only those parts of the report to which no objections had been made were sent to the applicant and the third-party Government for information. Since there was no legal basis for this request, the applicant and the third-party Government were deprived of relevant information without legal grounds <*>. The Court should therefore have refused that request in the absence of a precise legal framework allowing for non-disclosure of secret evidence to the parties. Equality of arms oblige.
<*> Rule 33 of the Rules of Court provides for the possibility of restricting public access to certain documents in the interests of public order or national security. It omits any rule on restriction of disclosure of evidence to one party. The General Instruction for the Registry on treatment of internal secret documents approved by the President of the Court in March 2002 does not apply to the evidence provided by the parties either. Finally, the Practice Direction on Written Pleadings issued by the President of the Court in November 2003 and amended in 2008 and 2014 («Secret documents should be filed by registered post») is manifestly insufficient.
- Neither can I accept, as evidence of the presence of Azerbaijani military personnel in Gulistan, the video recording of the village which constitutes annex 3 to the applicant’s observations of 21 February 2008. According to the Government of Armenia, the video includes footage of an Azerbaijan soldier walking among the ruins of Gulistan. In fact, the man appearing in the video cannot be identified as a serviceman, since he is not in military uniform and is unarmed. The origin of the smoke rising from the chimneys of some houses is unknown. It is not impossible that this smoke came from fires lit by the shepherds seen in the DVD submitted in July 2012. Assumptions are always tempting, and sometimes convenient, but should be avoided when a court of law is establishing facts.
- Finally, I regret that the Court did not consult the results of the October 2006 OSCE mission monitoring the border between the «Nagorno-Karabakh Republic» and Azerbaijan near Gulistan. There is no reliable alternative witness evidence. The testimonies of the «Nagorno-Karabakh Republic» officials and former villagers of Gulistan, as well as the testimonies of Azerbaijan military officers, officials and villagers from neighbouring villages, were collected in circumstances unknown to the Court, without being submitted to cross-examination. The DVDs, which contain footage of Gulistan and the surrounding area, do not provide a clear picture of the exact military positions of the two armies. Finally, regardless of the legal issue of their admissibility, the satellite images of the «trenches», «revetments», «military buildings» and «military vehicles» in and around the village are dubious. The construction and replacement of military buildings was noted «in the region north of Gulistan» (page 13 of the AAAS report). The military vehicles were also noticed in the «areas north and west of Gulistan», vehicle tracks having been spotted 2.5 km north of Gulistan (page 16 of the same report). The «trenches and revetments», «earthworks» and «earthen barriers» noted were located mostly outside Gulistan. There are no images of «military buildings» or «military vehicles» in Gulistan, and the only images of «trenches and revetments» in Gulistan refer to 2005 and 2009, but the «visual signature of these trenches fades due to disuse through 2012» (page 7 of the same report). One thing is clear: there are no traces of cemeteries in the satellite images (pages 7 and 22 of the same report). In any case, in view of the significant limitations of the AAAS report, which included «insufficient imagery, cloud cover, spectral properties of the imagery, physical geography of the region, and general difficulties in conducting multi-year assessments» (page 22 of the same report), the accuracy and credibility of the report are greatly undermined.
- In my view, it is imprudent to sustain, solely on this doubtful evidential basis, that one of the armies controls the territory of the village and its surrounding area. In view of these doubts, it would be wiser to proceed by establishing the facts agreed on by both parties, if any, and checking them against objective evidence. Comparison of the parties’ maps of the area and their respective readings of those maps would seem to show a military position located on the south of the riverside on a height just opposite the village, which would allow servicemen there not only to survey the village and its surrounding area but also to shoot at any moving or static target in the village. On the north bank of the river to the east and north-east of the Gulistan settlement, there seem to be various Azerbaijani army positions, situated in the lowlands, at distances of between 1 and 3 km from the village. Careful assessment of the available evidence admits of no other conclusion.
- Preliminary conclusion: Assanidze distorted
- On the basis of legally controversial and factually contradictory evidence, the majority put forward a typical argument ad consequentiam, drawing the conclusion that the respondent State’s responsibility is not «limited» from the fact that no other Convention State has «full responsibility under the Convention» for the events occurring in Gulistan (see paragraph 148). Despite the obvious fact that the area is rendered inaccessible by the military circumstances obtaining in the field, the majority accept the «full responsibility» of the respondent State simply because there is no one else to blame for any possible breaches of the Convention in that territory.
- The fallacious conclusion drawn by the majority is supported by one single argument, namely the comparison with the Assanidze type of situation, on which the majority rely in paragraph 150 of the judgment. The analogy of the two situations is manifestly forced, because in Assanidze the Georgian Government accepted that the Ajarian Autonomous Republic was an integral part of Georgia and that the matters complained of were within the jurisdiction of the Georgian State. Moreover, apart from the case of Mr Assanidze, with its strong political overtones, there was no problem of judicial cooperation between the central authorities and the local Ajarian authorities. Hence, it is rather artificial to compare the situation of direct military confrontation in Sargsyan with the situation of the Ajarian Autonomous Republic, which never had separatist aspirations and was not a source of conflict between different States.
- I would adopt a different approach, for two reasons: firstly, the facts are not clear to me, since the file contains insufficient evidence to ascertain the composition and size of the military forces in confrontation, their respective firepower and, more importantly, their exact geographical positioning with regard to Gulistan. Secondly, even accepting the parties’ maps of the area at face value and assuming that the existence of the physical barrier of the river between Gulistan and the Nagorno-Karabakh army facilitates the Azerbaijani army’s access to Gulistan, I do not consider this fact alone sufficient to conclude that the respondent State holds jurisdiction over Gulistan and its surrounding area and that the alleged deprivation of the applicant’s rights under the Convention is attributable to Azerbaijan. Apparently, the Nagorno-Karabakh army is closer to the village and in a more favourable strategic position, with the village within firing distance. In fact, Gulistan is situated midway between two armies, neither of which exercises effective control of the area. That is exactly what makes the area so dangerous. For these reasons, therefore, the respondent State lacks jurisdiction.
- Responsibility for human rights breaches on the ceasefire line and the adjacent area
- The majority’s position: exceeding Oruk
- Having established jurisdiction of Azerbaijan over Gulistan, the majority proceed to assess the respondent Government’s justification for the deprivation of the applicant’s rights under the Convention. According to the Azerbaijani Government, permitting civilian access and circulation in such a hazardous and volatile area would most likely amount to a violation of Article 2 of the Convention. In addition, international humanitarian law should heighten considerations of protecting civilians against the risks prevailing in the area. That is why, the Government further explain, they prohibited civilian access to Gulistan, by means of a secret unpublished order. The Court knows nothing about the date or the details of that order <*>. Nonetheless, its compatibility with the Convention is assessed by the majority in view of the patent dangerousness of the local military situation.
<*> See letter of 27 August 2013 from the Azerbaijani Ministry of Defence, annex 3, and § 18 of the respondent State’s submissions of 18 September 2013. Here again, without a rule for the protection of confidential evidence, the respondent party cannot be blamed for not having provided the Court with the sensitive evidence.
- The majority find that the respondent Government’s conduct was, and still is, justified, extending the case-law of Oruk v. Turkey (No. 33647/04, 4 February 2014) to the present case (see paragraph 233 of the judgment). The analogy is improper, since the underlying factual situations are not at all comparable. In the Turkish case, the victims lived near a military firing zone, the fatal accident having been caused by the careless conduct of military personnel who had left unexploded ammunition on the ground after their training. Accordingly, there is no similarity to the facts in the present case, whether in terms of space (non-conflict, populated zone), time (peacetime), result (death of a person), or even mens rea (negligence on the part of soldiers). Needless to say, this unfortunate analogy merely served as a pretext for avoiding the central issue of the case. Even assuming the majority’s factual premise regarding the effective control of Gulistan by the Azerbaijan army, which I in fact do not, the case should have been argued on the basis of the restrictions which Article 1 of Protocol No. 1 itself sets out, when read in conjunction with the international humanitarian law obligations, including the obligation to protect civilians (POC), and the broader international-law «responsibility to protect» (R2P) of the respondent State. The effect of such a renvoi is to render the application of Article 1 of Protocol No. 1 conditional upon the way the Court interprets incidenter tantum international humanitarian law and the responsibility to protect <*>.
<*> This principle was set out in Varnava and Others v. Turkey ([GC], No. 16064/90, § 185, ECHR 2009) with regard to Article 2 of the Convention, but is applicable to all Convention provisions: «Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict». This interpretation results from the need to avoid fragmentation of international law, since the «internal rules» of the Court (the Convention and its protocols) must be applied coherently with «external rules» (see on this topic my separate opinion appended to Valentin Campeanu v. Romania [GC], No. 47848/08, ECHR 2014). If international humanitarian law provides a higher degree of protection than the Convention, the States parties to the Convention cannot invoke it in order to avoid compliance with international humanitarian law (Article 53 of the Convention). This provision has major potential for the enforcement of international humanitarian law by this Court, which is in line with Article 31-3 (c) of the Vienna Convention on the Law of Treaties. Unfortunately, in the present case, the majority admitted the applicability of international humanitarian law but concluded that it did not provide a «conclusive answer» (paragraph 232).
For the sake of completeness, I will further argue the case on the basis of the majority’s factual premises and taking into account the State’s international humanitarian law obligations, including the obligation to protect civilians, and its responsibility to protect.
- Responsibility to protect in international law
(i) Formation of the customary rule
(a) United Nations practice
- Article 2 § 4 of the United Nations Charter on prohibition of the use of force is a jus cogens rule, which applies in both inter-State and intra-State cases. This rule may be restricted only by another rule of similar nature (see Article 53 of the Vienna Convention on the Law of Treaties). The targeting of a population by their own government, which perpetrate, seek to perpetrate or allow the perpetration of genocide, crimes against humanity or war crimes, directly or through private agents acting under their direction or with their connivance, constitutes criminal conduct under treaty and customary law. The prevention and punishment of such crimes is a jus cogens obligation of a non-derogable, imperative nature, in times of both peace and war. In case of the deliberate selection of a part of the population on the basis of a racial, ethnic, religious or other identity-based criterion as a target of a systematic attack, the unlawfulness of the conduct is compounded by the discriminatory intent, which also calls for mandatory prevention and punishment <*>. Thus, the jus cogens prohibition of the use of force may be restricted for reasons of protecting a population from the commission of jus cogens crimes, the application of Article 103 of the Charter being excluded in this conflict of norms.
<*> Article 1 of the Genocide Convention and Article 89 of the Additional Protocol I to the Geneva Conventions. See also on jus cogens crimes, Human Rights Committee, General Comment 29, States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11 (2001), § 11 («States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence»), International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Article 26, p. 85 («Those peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination.»), and Rules 156 to 161 of the ICRC Study on Rules of customary international humanitarian law.
- Shortly after the end of the Second World War, the General Assembly expressed the view that «it [was] in the highest interests of humanity to put an immediate end to religious and so-called racial persecution and discrimination», and that therefore governments should «take prompt and energetic steps to that end» <*>. In the context of the fight against colonialism, bolder statements were made expressing the same principle. In paragraph 3.2 of the Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, approved by General Assembly Resolution 2621 (XXV) of 12 October 1970 (A/RES/2621 (XXV), see also A/8086), it was affirmed that States «shall render all necessary moral and material assistance» to the oppressed population of another State «in their struggle to attain freedom and independence» <**>. The Basic Principles of the legal status of the combatants struggling against colonial and alien domination and racist regimes, approved by General Assembly Resolution 3103 of 12 December 1973 (A/RES/3103 (XXVIII)), even declared that «(t)he struggle of peoples under colonial and alien domination and racist regimes for the implementation of their right to self-determination and independence [was] legitimate and in full accordance with the principles of international law», stating that «[a]ny attempt to suppress the struggle against colonial and alien domination and racist [was] incompatible with the Charter of the United Nations, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to Colonial Countries and Peoples and constitute[d] a threat to international peace and security».
<*> General Assembly Resolution 103 (I), of 19 November 1946, on «Persecution and Discriminations».
<**> A notable example is General Assembly Resolution ES-8/2, of 14 September 1981 (A/RES/ES-8/2) on the question of Namibia, which «calls upon Member States, specialized agencies and other international organizations to render increased and sustained support and material, financial, military and other assistance to the South West Africa People’s Organization to enable it to intensify its struggle for the liberation of Namibia».
More recently, the «right» of peoples forcibly deprived of the right to self-determination, freedom and independence, «particularly peoples under colonial and racist regimes or other forms of alien domination», to struggle to that end and to seek and receive support was reiterated in paragraph 3 of the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, approved by General Assembly Resolution 42/22, of 18 November 1987 (A/RES/42/22).
Step by step, the Security Council has enshrined this same «right» to use force in a non-colonial context as well. On the one hand, it referred to grave human rights violations as a threat to international peace and security, since the seminal Resolution 688 (1991), of 5 April 1991 (S/RES/688 ), later confirmed by many others, such as Resolutions 733 (1992) of 23 January 1992 (S/RES/733 ), and 794 (1992) of 3 December 1992 (S/RES/794 ), on the situation in Somalia, and 1199 (1998), of 23 September 1998 (S/RES/1199 ), on the situation in Kosovo. On the other hand, it authorised the use of «all necessary means» or the taking of «all necessary measures», including military measures, to put an end to human rights violations, ensure humanitarian aid and restore peace, e.g. in Resolutions 678 (1990) of 29 November 1990 (S/RES/0678 [(1990]), 770 (1992) of 13 August 1992 (S/RES/770 ), 794 (1992) of 3 December 1992 (S/RES/794 ), 940 (1994) of 31 July 1994 (S/RES/940 ), and 1529 (2004) of 29 February 2004 (S/RES/1529 ).
General Assembly Resolution 43/131 of 8 December 1988 (A/RES/43/131), considering that «the abandonment of the victims of natural disasters and similar emergency situations without humanitarian assistance constitute[d] a threat to human life and an offence to human dignity», Resolution 45/100 of 14 December 1990 (A/RES/45/100), with the first reference to «humanitarian corridors», and Resolution 46/182 of 19 December 1991 (A/RES/46/182), approving the «guiding principles» on humanitarian assistance, and stating that each State ha[d] the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory, reinforced that trend.
- In other words, a government’s treatment of the population living under its authority is no longer an issue which lies within the reserved domain of States. As the also wrote, in his lesser-known Article 15 of the du Droit des Gens, «Les entreprises contre la d’un peuple sont un attentat contre tous les autres» (an assault on the freedom of one people is an attack against all peoples). States cannot remain indifferent in the face of situations of systematic discrimination and human rights violations. Having been introduced by the International Commission on Intervention and State Sovereignty (ICISS) <*>, advocated in the Secretary-General’s note presenting the report of the High-level Panel on Threats, Challenges and Change <**> and adopted in the 2005 World Summit Outcome Document, the rule concerning the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity was formally enshrined in General Assembly Resolution 60/1 of 24 October 2005, which adopted the Document in question (A/RES/60/1), and Security Council Resolution 1674 of 28 April 2006 on the protection of civilians in armed conflict, which endorsed paragraphs 138 and 139 of the World Summit Outcome Document (S/RES/1674 ) <***>. In undertaking to provide a «timely and decisive» response, the political leaders of the world affirmed their determination to act not only when the crimes in question were already occurring but also when they were imminent, by using all the permissible and necessary means, including those of a military nature, to avert their occurrence. Conceptually and practically, this responsibility entailed the prevention of such crimes, including incitement to commit them, as the normative statement of paragraph 138 clarified, reinforced by the statement of political support to the Special Advisor for the Prevention of Genocide in paragraph 140. The nature of the requisite response was not left indefinite, since it must be all-inclusive in order to be «decisive», and obviously to encompass the full range of coercive and non-coercive enforcement actions available to the Security Council, as shown by the express reference to Chapters VI, VII and VIII of the Charter. Needless to say, the requirements of proportionality were applicable to the international community’s response.
<*> ICISS, «The Responsibility to Protect», cited above, 2001, §§ 2.24, 4.19 — 4.36 («emerging guiding principle»). In the Commission’s view, military intervention for human protection purposes is justified in order to halt or avert «large-scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or large-scale «ethnic cleansing,» actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape» (§ 4.19).
<**> «A More Secure World: Our Shared Responsibility», 2 December 2004, A/59/565, §§ 201 — 208 («an emerging norm of collective international responsibility to protect»). In the Panel’s view, «There is a growing recognition that the issue is not the «right to intervene» of any State, but the «responsibility to protect» of every State when it comes to people suffering from avoidable catastrophe — mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease» (§ 201).
<***> It should be noted that Resolution 1674 contains the first official reference by the Security Council to the responsibility to protect and that this reference is made in connection with the protection of civilians in armed conflict. Thus, the responsibility to protect and the protection of civilians have mutually reinforced their respective legal dimensions. The protection of civilians in armed conflict was first promoted by the Security Council under a comprehensive package of measures approved by Resolutions 1265 (1999), of 17 September 1999 (S/RES/1265 (1999)) and 1296 (2000) of 19 April 2000 (S/RES/1296 (2000)). This latter Resolution underscored, for the first time, the Council’s responsibility to take «appropriate steps» for the protection of civilians during armed conflict, since «the deliberate targeting of civilian populations or other protected persons and the committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security». The same position of principle was affirmed in Resolution 1894 (2009) of 11 November 2009 (S/RES/1894 ), which reiterated the Security Council’s «willingness to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed, including through the consideration of appropriate measures».
With this degree of specificity, the Outcome Document established not only an unambiguous political commitment to use those powers, but set a universally binding obligation to protect populations from the most atrocious human rights violations. This protection extended to all «populations» within the territory of the State, including refugees, migrants, displaced persons and minorities, and not only to «groups», «civilians» or «citizens» <*>. The indissoluble link between international human rights law, the rule of law and responsibility to protect was confirmed by placing the latter issue under the heading «IV. Human rights and the rule of law» in the Outcome Document. The apparent casuistic approach («on a case-by-case basis») referred to the individual assessment of the adequate and necessary means of addressing each specific situation, and evidently not to the legal rule set out in the Document, whose normative language («responsibility») reflected that of Article 24 of the Charter. After imposing an affirmative duty on the Security Council to react to the catalogued international crimes, the Outcome Document omitted to mention the consequences of any Security Council failure to respond. But that omission is highly significant in legal terms. Having regard to the preparatory materials for the Vienna meeting, namely the ICISS and High-level Panel reports, as well as the previous practice of international organisations in Africa, the silence of the Outcome Document left the door open to the possibility of regional or individual enforcement alternatives if the Security Council failed to act. Such regional or individual enforcement measures could, in any event, not be excluded in view of the cogent nature of the international crimes at stake. Finally, by stressing the need for the General Assembly to continue its consideration of the responsibility to protect populations, the Outcome Document enhanced its subsidiary role in this field in the light of the Charter principles and, more broadly, of the general principles of international law and customary international law.
<*> These less inclusive expressions were used by the ICISS Report, cited above, «A More Secure World», cited above, and «In Larger Freedom: Towards Development, Security and Human Rights for All», Report of the Secretary-General, A/59/2005, 21 March 2005. The word «populations» avoided the exclusion of non-civilians from the ambit of beneficiaries of responsibility to protect. The emphasis on «its populations» envisaged the inclusion of all permanently or temporarily residents within the national territory and the territories over which the State had effective control.