Foreign Relations & International Law

Oral Argument in Georgia v. Russia (II): The Fake News Era Reaches Strasbourg

Jeffrey Kahn
Thursday, May 31, 2018, 12:00 PM

On May 23, two distinguished Queen’s Counsel squared off before a Grand Chamber of the European Court of Human Rights in a rare inter-state case on the court’s docket, Georgia v. Russia (II).

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On May 23, two distinguished Queen’s Counsel squared off before a Grand Chamber of the European Court of Human Rights in a rare inter-state case on the court’s docket, Georgia v. Russia (II). Over the course of a more than three hours, Ben Emmerson QC for Georgia and Michael Swainston QC for Russia (with a short intervention by the Russian representative to the court, Mikhail Galperin) engaged in legal combat over the relationship between international humanitarian law and international human rights law, in particular the European Convention on Human Rights that the court interprets and applies.

I was present in the court’s hearing room in Strasbourg. This summary is from my handwritten, contemporaneous notes. (Quotes attributed to the lawyers are as I heard them; there is no transcript available against which to check them. The court’s video of the event is available here.)

A Grand Chamber hearing is an unusual event in Strasbourg. And most cases are brought by individuals alleging a violation of the European Convention on Human Rights by their own or another Member State of the 47-member Council of Europe. So this hearing is doubly rare: an inter-state case brought by one member of the Council of Europe against another. The tension was heightened by the fact that Russia has stopped paying its dues to the Council of Europe— more than €33 million and a sizeable chunk of the council’s budget—due to tensions following Russia’s occupation of Crimea. Russia has also refused to pay an almost €2 billion judgment the court issued against it in the hyper-sensitive Yukos case, in which the court found numerous violations of the Convention in the use of various retroactive tax assessments to force Russia’s biggest private oil company into bankruptcy (leading to its subsequent fire sale to a state-owned company). Could today’s case break the camel’s back, leading Russia to repudiate the European Convention on Human Rights and leave the Council of Europe?

Independent of European politics, this case is also important for the legal question it raises. The allegations concern the war Georgia and Russia fought in August 2008. Georgia alleges conduct that sounds both in international humanitarian law (IHL)—e.g. indiscriminate targeting of civilians, mistreatment of prisoners of war, and failure to protect civilians—and international human rights law (IHRL)—e.g. torture and arbitrary punishment. Georgia claims that the European Court is well-placed, indeed obligated, to decide all these issues. Russia warns that Strasbourg jeopardizes the European Convention human rights system (as well as the “universality” of IHL) by involving itself in matters in which it lacks competence and resources as a fact-finding body.

The Case in Brief

Seventeen judges along with three substitute judges and a jurisconsult heard argument. The Russian team was flanked with dozens of binders and boxes of papers while the Georgian side had relatively clean desks with nothing on the floor beside them, a curious juxtaposition given that the thrust of Russia’s argument was that Georgia’s claims amounted to fake news.

The short August 2008 war began with a preemptive, nighttime artillery attack by Georgia on Tskhinvali. This small town sits on the southern edge of South Ossetia, a region within Georgia in which ethnic Ossetian separatists have engaged in internal clashes with Georgian armed forces for years, leading Russia to deploy soldiers it identifies as peacekeepers. The Georgian armed forces were quickly overwhelmed by Russian air and ground forces. The aftermath, described as a Russian occupation by Georgia and a defensive repositioning of its peacekeepers by Russia, led to Georgia’s claims against Russia under the European Convention. Georgia lodged its application to the court days after the fighting started, raising issues under Convention Articles 2 (right to life), 3 (prohibition against torture, inhuman and degrading treatment), 5 (right to liberty and security), 8 (right to respect for family life) and 13 (right to an effective remedy). Georgia’s application also raised issues under Protocol No. 1 to the convention (concerning the right to property and an education) and Protocol No. 4 (freedom of movement).

In June 2016, the European Court conducted a fact-finding session in Strasbourg during which it took evidence from 33 witnesses: 16 summoned by Georgia, 11 by the Russian Federation, and six by the court. The evidence gathered, like the documentary and other evidence submitted by the parties, is not available to the public. This makes assessment of a central feature of the argument before the Grand Chamber on Wednesday particularly difficult. As if mirroring the current zeitgeist of life in a “post-truth” political era, each side accused the other of deliberate lies and sinister cover-ups—language that one might expect more in an airing of Alex Jones’s notorious “Infowars” programs than from British barristers in an international court.

(Credit: Andrei Nacu/Wikimedia)

Ben Emmerson QC for Georgia

Ben Emmerson began the proceedings for Georgia as the applicant state. He painted a vivid picture of 31,000 Russian ground forces—“the largest and most powerful army in Europe”—engaged in a “concerted campaign to make Georgian villages uninhabitable.” He described aerial attacks by the Russian air force and violence against civilians by ground forces that was clearly “not the actions of peacekeepers.” Emmerson recounted witnesses who identified Russian forces as the perpetrators of violence against civilians by their uniforms, flags, weaponry, and accents. Once Russian forces withdrew from their forward-most positions, Ossetian and Abkhazian separatist military forces then engaged in summary executions, interrogations using torture, and detention in squalid conditions. Emmerson said that thirty Georgian prisoners of war were killed while hors de combat and also described horrific torture with lighters, bayonets, teeth removed with pliers, electrocution and asphyxiation. While each act described was an independent violation of the Convention, Emmerson argued that they amounted to an “administrative practice” by Russia when taken collectively, a doctrine articulated in Ireland v. United Kingdom in 1978. (A request for revision of this judgment was dismissed by the court in March 2018.)

This was “ethnic cleansing,” Emmerson said, and his first legal point was that these acts showed Russia to be the responsible party in default of its obligation under Article 1 of the Convention (to “secure to everyone within their jurisdiction” the rights and freedoms defined in the Convention). But was a battlefield in Georgia within Russian jurisdiction? Relying on Al-Skeini v. United Kingdom, Emmerson asserted that the test of “effective control” was clearly met by evidence of Russia’s substantial military force, establishment of its military bases, appointment of local political officials, issuance of passports, and even the creation of electoral constituencies for voting in Russian elections. It was simply occupation: “not merely effective [control], but absolute.” In short, “Russia had a positive obligation to protect the lives of people within its jurisdiction from the homicidal actions of private actors” as well as violations of the Convention by its own military forces.

The European Convention applied, he emphasized, because Georgia’s position was that international human rights law continues to apply during armed conflict. Russia never made a derogation under Article 15 of the Convention (which permits a state to depart from some of its Convention obligations “in time of war or other public emergency threatening the life of the nation”). So the crimes described in Georgia’s application violate both bodies of law. In fact, Emmerson argued, they posed no material conflict in this case.

What Emmerson characterized as the “most remarkable” part of the case concerned the question of proof. At a minimum, the evidence established that Russian forces failed to distinguish between civilians and military targets. The evidence is strong enough, he said, to infer that Russia was deliberately targeting civilians. Munitions were dropped directly on houses, town squares, and churches. Russia, Emmerson said, had not given any justification for such violence, not even attempting to identify legitimate military targets in the area. Rather, Russia claims that no bombing even occurred or, worse, that Georgia bombed its own villages in order to frame the Russians with their own crime.

Emmerson pointed to an attack on the Gori town center with an Iskander, SS-26, rocket that released cluster munitions, killing Dutch journalist Stan Storimans and many Georgian civilians. Emmerson’s tone was particularly accusatory when he stated that the “Russian Federation deliberately set out to mislead this court.” He expressed astonishment that Russian authorities denied any responsibility for the attack and claimed falsification of the chain of custody for the evidence presented by Georgia. “This, then, was the quality of the Russian response. … They can’t even be bothered to make up” believable lies. Why, Emmerson asked rhetorically, should Russia offer up a defense of plausible deniability when implausible deniability will do?

Mikhail Galperin

Galperin, the Representative of the Russian Federation before the European Court, spoke briefly between the two British lawyers. Helping to drop the tone of the argument further, Galperin observed that South Ossetia was placed within Georgian territory in 1922 by then-Minister for Nationalities Joseph Stalin—Georgian by ethnicity—without bothering to ask the Ossetians.

Galperin argued that this case represented the first time the European Convention was applied to such an interstate and intra-state armed conflict, and that it was very wrong to do so. Russia had no effective control, he argued, and thus its jurisdiction (and the application of the Convention) did not apply. He sought briefly to distinguish two Grand Chamber judgments from 2014, Hassan v. United Kingdom, and Jaloud v. the Netherlands.

More generally, he warned the court against extending the Convention to situations of armed conflict, arguing that it would be impossible to apply the Convention on the battlefield. The Court should not spoil the clarity of IHL, he further warned, or civilians would suffer. Galperin described legal theories of the interplay between IHL and IHRL as confused and confusing (specifically giving a shout out to academic work by Professor Oona Hathaway and a third-party intervention in this case by law students at the University of Essex). Rather, he argued, a political solution to the conflict between states would be the better course of action.

If the court proceeded, however, Galperin noted that Georgia had failed to exhaust the domestic remedies it must pursue before pursuing its claims before the court. Russian investigators sought and needed Georgian assistance to pursue criminal cases that these allegations demanded be opened for possible prosecution, but this was rejected without good explanation. In short, any alleged crimes should be submitted for consideration within the Russian criminal justice system.

Michael Swainston QC for the Russian Federation

Swainston began his presentation by emphasizing the “alleged” nature of the violations, all of which were firmly denied by Russia. This conflict on the facts, he said, raised the substantial question of the court’s very ability to resolve disputes occurring within an international armed conflict. It was Georgia, he argued, that started the conflict by launching an indiscriminate attack on a sleeping Tskhinvali and Russian peacekeepers. And Georgia was now pursuing a propaganda campaign before this court. “This case,” he declared, “really does show the fog of war.”

This was the central theme of Russia’s presentation: the impossibility of even determining the facts that would support any application lodged under the Convention. Observing that he and his client “prefer evidence to invective,” Swainston expressed the need to make clear the true position on who started the conflict. “It is almost sickening to hear Georgia complain” today about indiscriminate targeting given the premeditated, nighttime artillery attack on Tskhinvali.

Swainston accused the Georgian government of submitting fake evidence. Tapes of telephone intercepts were false, he said. Radar plots were doctored, and very badly so: they contained the most basic mistakes, for example, about the altitude of the Caucasian mountains. As a result, they showed Russian planes flying where in fact they would have been “flying through rock.” Georgian witnesses presented “made-up” stories and were easily confused about basic facts that would not have befuddled genuine witnesses. It was unclear to Swainston whether some witnesses even came from the places they said they were from.

Russia did not bomb Georgian villages, he argued. Georgia struck its own villages with cluster bombs purchased from Israel. The only question was whether this attack was accidental or deliberate. Asserting lack of time to deal with every piece of evidence, Swainston focused on the Iskander missile attack on Gori discussed by Emmerson. Mr. Swainston highlighted inconsistent initial reports about the death of Mr. Storimans to cast doubt as to who actually was responsible.

Pictures and video submitted by Georgia were false or doctored, Swainston argued, insinuating. that at least one expert and one photographer had ties to U.S. intelligence. But these efforts to create evidence, in Swainston’s telling, were ham-fisted and easily caught out. In one example, Swainston made mocking references to a picture of the tail of an Iskander SS-26 missile on a sofa in an upper-floor apartment. The picture, he said, was physically impossible, since the tail section of a real Iskander missile weighs many hundreds of kilograms and comes down vertically at several times the speed of sound. It would have wound up in the cellar. Referring to another picture showing a town square with a statute of Stalin seemingly undamaged, Swainston sardonically observed: “A real Iskander missile would not have shown any such cultural sensitivity.” And noting pictures and video of missile parts “nestled in grass” and resting “gently on [a] sofa,” Mr. Swainston declared: “There is no answer to Isaac Newton in my learned friend’s case.”

Concluding, he noted, “when my learned friend makes accusations of false evidence … [Georgia] has the temerity to say false evidence put forward on the Russian side.” Ten years after the events in question, it is impossible to know where various pieces of missile evidence even came from. On their provenance we know nothing, Swainston said.

Turning to Emmerson’s legal argument about “effective control,” Swainston urged the court not to adopt a formulaic approach based on the presence of a large number of Russian soldiers. These soldiers were fully occupied by many more Georgian troops. Russia tried to prevent criminal attacks on civilians where and when it could with roving patrols, but with 150 villages, each with many routes of approach, this was very difficult. Georgia was not trying to restore democracy or the rule of law; it was trying to rain down destruction on sleeping villages. Its attacks in the past and in this instance made clear that it would do so again if Russia did not protect the borders of Abkhazia and South Ossetia. In any event, criminals are not state agents, and Russia bore no responsibility for the Ossetian criminality that Georgia itself brought about by destroying civil society that Russia tried to protect.

Swainston concluded by warning that IHL is incompatible with IHRL. If these are melded into different human rights regimes around the planet, he warned, commanders would not know what to do. For this as well as the evidentiary reasons, the European Court should not deal with IHL.

The evidence in this case was manipulated, he argued, and deciding this case on the merits on the basis of this evidence would only encourage similar cheating by other states. He pointed to one expert witnesses’s comments that fake videos and other evidence are used to great effect on social media and even turned into evidence there. “This Court cannot hope to see through the fog of war or deliberate smokescreens thrown up by the Georgian side.”

“There is no basis for the charges put up against Russia,” Swainston said. “This case is not put forward to serve the Convention.” Rather, he said, it was put forward in a “cynical way” to undermine the Convention.

Ben Emmerson QC for Georgia

The president of the court asked if any of his colleagues wished to ask questions, but none did. The judges then took a short recess. The Court reconvened and counsel made their closing arguments.

Emmerson pointed to the “paranoid rambling of CIA, stealing weapons, … all the absurdity” of the Russian case. He argued that the Russian strategy was to “generate as much dust as possible” and “then complain about the fog of war.” As an example, Emmerson claimed that the arguments from physics put forward by Swainston, not by any expert, about “what he thinks Isaac Newton would say” was simply “advocacy posing as evidence.” It was “hard to imagine that a Council of Europe state would embarrass this institution” with such submissions.

Emmerson pointed out that this case was not a jus ad bellum case about how the conflict began, but a jus in bello case about how it was fought—so the question of who started the war does not matter. Since Russia made no counterclaims against Georgia, Russia cannot now claim Georgian responsibility for starting the war as some sort of excuse for its own egregious conduct. In any event, claims about Georgian cluster munitions were “made up” by Swainston, who, Emmerson argued, was twisting a footnote in a Human Rights Watch report rather than relying on any actual evidence.

Emmerson then defended the relationship between IHL and IHRL. Human rights treaties remain in force but are shaped through the prism of armed conflict when IHL also applies, he said. Contra exaggerated claims of hyper-legalization out of place on a battlefield, military commanders have the basic requirement of understanding IHL and they are able to do so. As to the facts of this case, there is nothing very complicated about not shooting unarmed civilians, or bombing churches, or pulling teeth out with pliers. So there was no significant divergence between what was required under Convention standards versus the requirements of IHL. That would perhaps have been the case if Russia had admitted to bombing a village but then claimed there was a military target in the middle of it. But there were no such proportionality issues to resolve here—Russia has simply denied its involvement in the face of evidence to the contrary.

“This litigation represents a significant challenge to the court,” Emmerson concluded. Russia has threatened to de-ratify the Convention and to starve the court of funding. But Emmerson lauded “this Court’s well-deserved reputation for fearless and objective adjudication” and urged the judges to show that the European Convention was not just about western European law but also about “gross human rights violations in the eastern reaches of the continent.”

Michael Swainston QC for Russia

“My learned friend mischaracterizes evidence or pretends it isn’t there,” Swainston said in reply, pointing to an expert’s report on the weight, velocity, and details of Iskander missiles as part of his response.

But the focus of his rebuttal was a warning. Swainston told the court that it was very important that it consider its role carefully. Is it feasible, he asked, for the court to determine these questions of IHL? How would it be possible to get to the bottom of evidentiary questions on which there was so much disagreement, so little time, and so few resources? If the court got involved, there would be an incentive for states to infiltrate NGOs in order to manipulate evidence— in much the way that Swainston had insinuated expert reports by NGOs submitted as evidence in this case had been manipulated.

The Court’s involvement would have consequences for the law, too. The universality of IHL is vital, he said. The same rules must apply across the planet or civilians and soldiers will suffer. “Even if this court comes up with its version of how to amalgamate the rules,” universality would be lost when some other court adds its gloss based on enforcing some other regional human rights system. “Clarity and universality of IHL must be paramount,” or there will be a great cost if it is lost. The current case, he argued, is a political application designed to take this court outside its usual jurisdiction.

Concluding Thoughts From An Observer

I was seated directly behind counsel for the Russian Federation, though this was an entirely random occurrence. Two thoughts entered my head as I heard these distinguished and experienced members of the British bar strain to reach each other’s jugulars.

The first thought was that the arguments presented about the intersection vel non of international humanitarian law and international human rights law were not particularly new at all. In any event, cases presenting such conflicts seem unlikely to weigh down the European Court’s docket. Inter-state cases are rare birds, and Russia is the only member state in the Council of Europe now occupying territory in, or engaged in armed conflict with, other member states. To be sure, frozen conflicts are capable of heating up, such as the one between Armenia and Azerbaijan—both of which are also members of the Council of Europe. But it seems more likely that case law developed by the court would affect long-term members such as the United Kingdom or France engaged in armed conflicts outside the territory of any member state. The law in those cases is already being developed and cases brought by individuals (not states) have already been heard by the court.

More disconcerting was the intensity of controversy about the very core facts in this case, and the very strong language that these distinguished silks used against each other’s clients and against each other. It was surprising, and disturbing, to hear claims of “lies,” and “paranoid rambling,” among other accusations. Georgia’s counsel was not halfway through his presentation when he told the judges that Russia “deliberately set out to mislead this court.” Reaching his crescendo, Emmerson observed that “the last refuge of the desperate advocate is to call everyone else a liar.” Swainston took as his theme the “fog of war,” but not just in the usual way this term is used to depict battlefield confusion. He emphasized at least as much a fog-making exercise years after the conflict to generate “made-up” stories of witnesses and manipulation of video, audio, and technical evidence. This was all put forward in a “cynical way” to undermine the Convention, he argued.

Of course, the public has no access to the annexes and evidence cited by the lawyers. So there is no possibility of exploring these claims further; it will be up to the court to comment on the lawyers’ accusations. This staid court, sensitive to its unique judicial role in a delicate human rights system, will probably avoid doing so if it is at all possible to avoid the matter. But one side, at least, was dissembling.

The assault on truth seemed strangely familiar these days, but it was surreal to hear two Queen’s Counsel hurling such accusations in the brightly lit, glass-and-steel encased, circular hearing room of the European Court of Human Rights. And sad to think that Alex Jones QC might be in our future.

Jeffrey Kahn is a Professor of Law at Southern Methodist University Dedman School of Law where he teaches and writes on American constitutional law, Russian law, human rights, and national security law. He is currently a Fulbright Research Scholar in residence at PluriCourts, a Centre of Excellence in the Faculty of Law at the University of Oslo.

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