1. The problem and a proposed solution
One of the most significant outcomes of the armed conflict in Ukraine is the influx of displaced citizens from the Donbass region and the Crimean Peninsula. Internally displaced persons (IDPs) are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised state border (Art. 2/Guiding Principles on Internal Displacement, Representative of the Secretary-General of the United Nations, 1998).
The problem of internally displaced persons in Ukraine may be approached from two perspectives. Firstly, there is a wide range of problems those people face while fleeing from conflict-affected areas. Having moved to government-controlled territories, people often face unemployment, financial difficulties, and lack of housing. Secondly, the influx of displaced Ukrainians, which as of February 5, 2018 amounts to 1,493,057, places a burden on the Ukrainian economy and also creates social tensions in addition to the existing conflict in the above-mentioned regions of the country (The Ministry of Social Policy of Ukraine, Press-Release dated February 5, 2018).
Nowadays, the problem of IDPs is being dealt with, yet it leaves much to be desired. In order to cope with the problem Ukraine has adopted a law on protecting IDPs and pays social assistance at the rate of 1,000 Ukrainian hryvnas (approximately 32 euros) per month. Also, a wide range of international organisations and donor states supply funds to Ukraine for the IDPs’ needs. However, such measures are inadequate: neither social assistance, due to its small amount, nor donors’ funds, due to their misallocations, reach the needs of Ukrainian IDPs. For instance, the employment situation for IDPs deteriorates. In June 2018, 42% of the IDPs surveyed by the International Organisation for Migration (IOM) were employed, which reflects a 6% drop from March 2018. Also, the average income for an IDP has continued to fall since December 2017. By June 2018 it had fallen to less than UAH 2,100, or USD 77, per month. (National Monitoring System Report on the Situation of Internally Displaced Persons). In terms of misallocations of donors’ funds, there is a striking example with hostels for IDPs in Sloviansk and Kramatorsk. Thus, the EU provided funds to Ukraine for the reconstruction of hostels for internally displaced persons in Sloviansk and Kramatorsk, but the funds have not been properly used and now the EU demands to return the money (Interview of David Stulik, the EU delegation to Ukraine). Finally, and more importantly, all these measures are aimed at dealing with the consequences rather than the causes.
It is clear that the current state of affairs is not satisfactory for all the sides involved: for IDPs because of lack of real protection and support, for the state of Ukraine because of its inability to pay more, and for donors because of their tiredness of misallocations of their funds. It appears that the only feasible and logical solution would be to address these issues to Russia, whose wrongdoings are the root cause of IDPs’ problems. Furthermore, such a solution will provide not only material satisfaction, but also a moral one, for the victims of Russia’s misconduct. Another argument, and probably the most important, is that there is an effective tool for solving this problem: the European Court of Human Rights.
2. A new approach to solving the problem
It must be said that addressing this issue to Russia is not an easy task, for it did not directly force displaced people to leave. Still, there is no doubt that if Russia, even after the occupation of Crimea or engineering the conflict in Donbass, would have refrained from persecution and violation of human rights, such a large number of people would not have chosen to relocate. This is particularly true of harassment and discrimination against ethnic Ukrainians, Crimean Tatars, representatives of religious minorities, minority groups in general, and activists who opposed the March 16 ‘referendum’ in Crimea (Report on the human rights situation in Ukraine, July 2014).
Thus, there is an element of forcibility in this situation, which needs to be developed. There are also other elements which may collectively demonstrate Russia’s fault and could be chronologically described as follows: (i) the atmosphere of disregard and massive violations of human rights lead to (ii) reasonable fear that similar events ‘may happen to me’ in case of not leaving (iii) which leads to the forced character of the displacement (iv) which falls within the scope of the right to freedom of movement. While the link between the third and the fourth components does not raise any questions, the link between the first three is the main problem in proving Russia’s responsibility.
Another challenge is the absence of binding provisions in instruments of international law defining the notion of forced displacement. In this regard, the only feasible solution would be to refer to soft-law and case-law. In terms of soft-law, quite a powerful argument for the forced character of the displacement may be found in the above-mentioned notion of the term IDP contained in the Guiding Principles on Internal Displacement (hereinafter referred as to Guiding Principles). Thus, according to the Guiding Principles, the decision to flee in order to avoid the effects of armed conflict, situations of generalised violence or violations of human rights fall within the scope of forced displacement.
In terms of case-law, it must be said that in spite of having many actions relating to the right to freedom of movement, the European Court of Human Rights (ECtHR) does not provide relevant judgments for the specific topic analysed in this article. For example, in the case of Timishev v. Russia, the Court established the violation of the right to freedom of movement, however, there had been a direct decision of the traffic police to refuse the applicant to cross the border between two subjects of the Russian Federation (ECtHR, Timishev v. Russia, 2005). In the case Tatishvili v. Russia, the Court found a violation of Protocol No. 4, Article 2 (the right to freedom of movement), but again a direct decision, namely a denial of registration of the applicant’s flat in Moscow took place (ECtHR, Tatishvili v. Russia, 2007).
Nevertheless, applicable cases may be found in the case-law of the Inter-American Court of Human Rights (hereinafter referred to as IACHR). There are three cases which need to be taken into account: Ituango Massacres v. Colombia (2006), Mapiripán Massacre v. Colombia (2005), and Moiwana Community v. Suriname (2005). The factual background in all of the cases is similar: the fleeing was preceded by a massacre or a military operation accompanied by murders; the victims of displacements were not the victims of massacres, but being afraid for their safety, they decided to leave. While the reasoning of the Court is generally similar in all three cases, they have their own peculiarities and approaches to determine the situation of the violation of human rights as a cause of forced displacement. In all of the cases, the Court found the violation of Article 22 (freedom of movement) of the American Convention on Human Rights.
3. Relevant case-law in support of the approach
3.1. ’Mapiripán Massacre’ v. Colombia
Through the judgement in the ‘Mapiripán Massacre’ v. Colombia case, the IACHR emphasises that in order to define the content and scope of Article 22 of the American Convention on Human Rights (freedom of movement) in the context of domestic displacement, the content of the Guiding Principles on Internal Displacement issued in 1998 by the Representative of the Secretary-General of the United Nations is especially significant (IACHR, ‘Mapiripán Massacre’ v. Colombia, 2005, § 171). Also, in its decision, the Court mentioned that the fear of similar events happening again to the next of kin should be regarded as a situation when people were forced into displacement.
Additionally, in order to apply the notion of forced displacement, as set in the Guiding Principles, another argument of the Court is relevant, especially bearing in mind the possibility of individual claims to the ECtHR. Thus, the Court mentioned that human rights treaties are live instruments, whose interpretation must be adjusted to the changing times and, specifically, to current living conditions (Ibid., § 187). The importance of such an approach consists in the existence of the principle of dynamic interpretation in the practice of the ECtHR, which makes it possible for the Court, while interpreting treaties, not to adhere to the strict interpretation of the right to freedom of movement in case of an individual complaint against Russia.
3.2. ‘Ituango Massacres’ v. Columbia
In this case, the Court upheld the forcibility of displacement as a result of massive violation of human rights and again emphasised the importance of current living conditions and changing times while interpreting the provisions of Article 22 (right to freedom of movement). Unlike the decision in ‘Mapiripán Massacre’ v. Colombia, where the situation of violation of the most fundamental rights is mentioned as a cause of forced displacement, this decision may be characterised as the one decreasing the degree of gravity for fleeing. In particular, the Court mentioned that theft of livestock by the United Self-Defense Forces of Colombia, among other things, was the reason for fleeing (IACHR, Ituango Massacres v. Colombia, 2006, § 234). Such an example appears to be important in the light of the so-called ‘bloodless seizing’ of Crimea and the high probability of Russia’s arguing that the Colombian cases are not applicable in the case of Crimea, for there were not any massacres.
3.3. Moiwana Community v. Suriname
This is the richest case in terms of developing the notion of forced displacement. In support of our previous statement regarding the difficulty of linking the atmosphere of violation of human rights and forced character of displacement, the Court, having used the iura novit curia principle, which means that the court may decide a case without being limited to the legal arguments advanced by the parties, found a violation of Article 22, in spite of the fact that the violation had not been alleged in the case’s pleadings. It was stated that the Court has the duty to apply all appropriate legal standards – even when not expressly invoked by the parties – with the understanding that parties had the opportunity to express their respective positions in regard to the relevant facts (IACHR, Moiwana Community v. Suriname, 2005, § 107). This example may, on one hand, prove the non-obviousness of the alleged violation, but on the other hand, the very fact of the Court’s interference underlines the significance and importance of dealing with such hidden violations.
Another peculiarity of the case is the arguments of the State of Colombia presented during the proceedings, which the Court did not find to be relevant. The State argued that IDPs move freely throughout the country and that no communications have thereby ever reached the Government of Suriname regarding the fact that the rights of those persons were violated or that they were intimidated (Ibid., § 106). Such dismissal may be quite useful in showing Russia’s responsibility, for there is a high probability that Russia will deny the fact of forced displacement based on the physical ability of the victims to leave the Crimean Peninsula and argue that that relocation was their own choice.
Also, in the case of Moiwana Community v. Suriname, the Court provides some useful notions, which could be used while proving Russia’s accountability. Particularly, the Court introduces the term ‘de facto restriction’ in relation to the situation of massive disregard for human rights making people flee their places of habitual residence.
Before drawing any conclusions, it is necessary to emphasise that the present article keeps its focus on the possibility of individual claims against Russia, not inter-states ones. Still, the inter-states claims, both at the level of International Court of Justice and ECtHR, may be relevant and effective as well. Summarising the above-mentioned data and arguments, it appears to be without doubt that the raised question and proposed solution are important and feasible, respectively. Also, agreeing with the proposed approach to solving the problem of IDPs, it may be concluded that there is a need for popularising individual claims against Russia among the victims of internal displacement. Another conclusion is that the international legal framework for the protection of IDPs is in need of further development, especially taking into account the absence of any binding sources concerning the rights of IDPs.
By Hordii Rumiantsev
This article was originally published in issue 6.2 of the magazine, which can be accessed here. All references used can be found at the end of that issue.