On Thursday (10/29), the European Court of Human Rights (ECtHR) released its ruling on three cases concerning disappearances in Chechnya. In one of the cases, the victim, Mayrudin Khantiyev, had been abducted from his home by a group of masked men. In the other two cases, the victims, Yusup Satabayev and Kazbek Vakhayev, disappeared while in Russian detention. In all three cases, the Court rejected Russia’s arguments that the men had not been under Russian control at their time of disappearance and awarded the victims’ families a combined total of 130,540 euros for Russia’s violations of the victims’ rights under the European Covenant on Human Rights.
These cases fall in a steady stream of petitions to the Court concerning events in Chechnya—by some estimates up to 400. The Court has now issued judgments in 120 of these cases and has developed evidentiary presumptions for the Chechen context, which it applied to the cases at hand.
For example, the Court has before held that it will draw a negative inference from Russia’s refusal to turn over investigative reports—despite the fact that Russia’s domestic law bans the government from doing so. The Court relied on such an inference to reject Russia’s claims that Satabayev and Vakhayev had been released from Russian detention before they disappeared. Furthermore, the Court made reference to factual presumptions arising from Russia’s “exclusive control” of the area from which Khantiyev was abducted—as well as Russian guards’ “blatant passivity” in response to the event—in rejecting Russia’s contention that Khantiyev’s abductors had not been Russian agents.
In analyzing claims relating to the victims’ right to life, the Court referred to a much stronger evidentiary presumption that it first developed in the 2006 case of Imakayeva v. Russia: “[I]n the context of the conflict in the Chechen Republic, when a person is placed in detention without any subsequent acknowledgement of the detention, this can be regarded as life-threatening.” In other words, the Court will presume someone dead when it is established that they disappeared under Russian control.
Ole Solvang, Executive Director of the Russian Justice Initiative, suggests that such victim-friendly evidentiary presumptions have developed in the Chechen disappearance context due to the fact that “[t]he frequent lack of evidence concerning the fate of the victim and the identity of the perpetrators makes it difficult for a court to hold individuals responsible for the disappearance of a person.” The problem is also widespread, with a Human Rights Watch (HRW) report from 2005 already estimating that some 5,000 people had disappeared in Chechnya at the hands of military and security forces since the outbreak of hostilities in 1999—occurrences that in the aggregate HRW calls a crime against humanity.
HRW’s allegations, based not on human rights law but rather on the laws of armed conflict or international humanitarian law (IHL), remind us that the line of Chechen cases before the ECtHR are part of a larger trend of victims of wartime atrocities turning to human rights tribunals to air their claims in the absence of effective enforcement for the laws of war. Last summer’s armed conflict in South Ossetia, for example, has given rise to a flurry of additional cases before the ECtHR as well as a claim by Georgia before the International Court of Justice (ICJ) that Russia’s actions violated the Convention on the Elimination of Racial Discrimination—a case that the ICJ accepted on the bases of the Convention even though it would not have been able to hear it without Russia’s consent had it been brought under IHL.
There are different views on the merits of translating wartime activities into claims under human rights instruments designed for peacetime, but one result of the trend is clear from the ECtHR’s treatment of the Chechnya cases. While IHL generally applies different law to different individuals based on their status as a civilian or member of an armed group, human rights courts seem generally willing to substitute their functional tests that look beyond membership to the individual characteristics of the victim. In the present three cases, for example, the Court made no distinction between Satabeyev, who had been a member of a rebel group, and the other two victims, who had not.
In other cases, the Court has further proved willing to enforce the protections provided by human rights law even when IHL would explicitly have offered lesser protection. For example, in the 1996 case of Bazorkina v. Russia, the Court found that a rebel detained while in active combat enjoyed the extensive procedural rights afforded by the Convention—as opposed to the low level of protection provided to combatants in non-international armed conflicts by Article 3 common to the 1949 Geneva Conventions.
Notwithstanding their legal victories, family members of victims in Chechnya still bemoan Russia’s continued unwillingness to help them locate the bodies of their loved ones, according to a HRW report published last month. Nevertheless, with some 300 cases still pending before the ECtHR on the Chechen conflict alone, as well as new cases from the South Ossetian conflict now on the dockets of the ECtHR and ICJ, it is unlikely we will soon see the end of war victims turning to human rights law for reparation.
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