Commentary

June 4, 2019

Halya Coynash

        On the same day that Russia challenged the jurisdiction of a second UN tribunal whose orders it is flouting, the Council of Europe’s Rules Committee adopted a draft resolution which could open the door to removing the sanctions imposed after Russia’s invasion and annexation of Crimea.  The resolution has yet to be voted on by the Parliamentary Assembly of the Council of Europe (PACE), and it is a ‘compromise’ which may still not satisfy Russia, however the message sent by any such compromise is disastrous.  If you are a big country, and can blackmail with lost revenue to PACE, and potential withdrawal from the European Court of Human Rights, measures will be found to waive or at least weaken entirely warranted sanctions.

        PACE reacted to Russia’s invasion and occupation of Ukrainian territory in 2014 by suspending Russia’s voting and other rights.  The Russian delegation remained free to attend sessions and engage in dialogue, however it chose not to do so, and then in 2017, Moscow stopped paying its annual payment to PACE.  The Russian Foreign Ministry referred to the sanctions as being “an attempt to ‘punish’ the Russian delegation” for what it claimed to have been, not the invasion and annexation of Ukrainian Crimea, but the “free expression of the will of the Crimean people to join the Russian Federation”.

        The key elements of blackmail were two: the loss to the Council of Europe of Russia’s €33 million annual fee, and the threat that Russia would withdraw from participation in the European Court of Human Rights.  The latter would, undoubtedly, be a blow for Russians who can find no justice in domestic courts.  Russia has, however, already violated Article 46 of the European Convention on Human Rights by adopting a lawwhich allows the Constitutional Court to decide that ECHR judgements are ‘unconstitutional’ and can therefore be flouted.

        Attempts to remove the sanctions began in 2017, with these heavily supported by Secretary General Thorbjorn Jagland.  Since not one of the conditions for the reinstatement of Russia’s rights had been fulfilled, and with the human rights situation steadily deteriorating, attempts were made to present the removal of sanctions in a more palatable light.  New rules were proposed, which would make it much more difficult to reimpose sanctions.  Since these need to be renewed each year, the chances of this happening would be reduced.

The last attempt to pass a resolution with the deceptively innocent title: ‘On strengthening the decision-making process of the Parliamentary Assembly concerning credentials and voting’ failed at the PACE session in October 2018. 

        On 3 June 2019, however, the Rules Committee adopted a draft resolution based on a decision by the Committee of Ministers from 17 May.  This will enable the Russian Federation  to present their credentials during the June 2019 part-session. “The Committee also proposes to supplement its Rules of Procedure to clarify that in the context of a challenge to or reconsideration of credentials, members’ rights to vote, to speak and to be represented in the Assembly and its bodies shall not be suspended or withdrawn.”

Russia was seeking full removal of any possibility to impose sanctions, and this only makes them harder to impose, but it is, nonetheless, an attempt to give in to Moscow’s blackmail.

        An Open Letter, endorsed by many prominent European politicians, political analysts, academics, rights activists and journalists, has warned against any such measures aimed at weakening the Council of Europe’s power to sanction countries that violate human rights, democracy and the rule of law.

        The authors point to the grave consequences for human rights of Russia’s annexation of Crimea, and to its ongoing major role, including military, in Donbas and Georgia.

        One can, and should, recall the over 100 Ukrainian political prisoners whom Russia is illegally holding in occupied Crimea and Russia, and the clear moves over recent months to use fabricated ‘terrorism’ charges to crush the Crimean Solidarity civic initiative, and its work in supporting political prisoners and their families, and in reporting on human rights violations.

        There are also well over 100 civilian hostages and prisoners of war in occupied Donbas, with their release also dependent on directives from Moscow.

        Moves to reinstate Russia’s position in the Council of Europe comes at a time when the country is directly blocking or obstructing the work of international judiciary and investigative bodies.

        Russia used its power of veto in the UN Security Council to block an international investigation into the downing by a Russian Buk missile on 17 July 2014 of Malaysian airliner MH17.  It used propaganda and other methods to obstruct the work of the Joint Investigative Team, which concluded in May 2018 that  “the Buk missile which downed Malaysian airliner MH17 on 17 July 2014 came from the 53rd Anti-Aircraft Missile brigade which is a unit of the Russian army from Kursk in the Russian Federation”.

        Russia’s response to the International Criminal Court Chief Prosecutor’s conclusion that its occupation of Crimea constitutes an international armed conflict (falling with the ICC’s jurisdiction) was to declare that it wanted nothing to do with this Court.

        It has repeatedly flouted orders from the European Court of Human Rights under Rule 39, with respect to Ukrainian political prisoners.  Over a year and a half after the Russian FSB abducted Ukrainian teenager Pavlo Hryb from Belarus and imprisoned him, it has still not complied with the ECHR order to allow the gravely ill young man to be examined by Ukrainian doctors.

        On 25 May 2019, the International Tribunal for the Law of the Sea ordered Russia to immediately release the 24 Ukrainian seamen whom it took prisoner on 25 November 2018, and to also return the three Ukrainian naval vessels it seized in its attack.  Russia is thus far continuing to claim that this UN Tribunal does not have jurisdiction over its act of aggression against Ukraine and to say that it will not comply.

        Russia’s general position in all international disputes appears to be to deny the particular court’s jurisdiction.  It tried this with respect to the International Tribunal for the Law of the Sea, and, earlier, over Ukraine’s suit against Russia before the UN’s International Court of Justice.  On 19 April 2017, ICJ  not only accepted prima facie jurisdiction, but also imposed the provisional measures which Ukraine had requested with respect to discrimination against Crimean Tatars and ethnic Ukrainians in occupied Crimea.  Russia has flouted the Court’s direct order to withdraw its ban on the Mejlis, or representative assembly, of the Crimean Tatar people and to ensure the availability of the Ukrainian language in Crimean schools.

        Instead it is still arguing that the Court does not have jurisdiction.  At the hearings which began on 3 June 2019, the Russian delegation arrived with one of the few Crimean Tatars who has collaborated with the occupation regime, presumably in the hope that he could convince the Court that the ongoing persecution of Crimean Tatars that has been noted by the UN General Assembly, PACE, OSCE, all democratic countries and rights NGOs, is merely ‘Ukrainian disinformation’.

        Do the honourable members of the Parliamentary Assembly of the Council of Europe really wish to ignore such overt violation of fundamental principles of international law and denial of the authority of international judicial bodies?  The signal this will send is devastating and would appear to undermine the Council of Europe’s commitment to the values it purportedly upholds.