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GRAND CHAMBER

CASE OF GEORGIA v. RUSSIA (II)

(Application no. 38263/08)

JUDGMENT
(Merits)

This version was rectified on 29 January 2021

under Rule 81 of the Rules of Court

STRASBOURG

21 January 2021

This judgment is final.

INDEX

PROCEDURE

I. INTRODUCTION

II. ADMISSIBILITY PROCEDURE BEFORE THE CHAMBER

III. PROCEDURE ON THE MERITS BEFORE THE GRAND CHAMBER

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Overview

B. Chronology of the conflict

II. RELEVANT INTERNATIONAL HUMANITARIAN LAW

A. The Hague Regulations of 1907

B. Geneva Conventions of 1949 and Additional Protocol

III. REQUESTS OF THE PARTIES

A. The applicant Government

B. The respondent Government

THE LAW

I. MAIN ASPECTS OF THE APPLICATION

A. Active phase of hostilities during the five-day war after the intervention by the Russian armed forces (from 8 to 12 August 2008)

B. Occupation phase after the cessation of hostilities (ceasefire agreement of 12 August 2008)

C. Treatment of civilian detainees and lawfulness of their detention

D. Treatment of prisoners of war

E. Freedom of movement of displaced persons

F. Right to education

G. Obligation to investigate

H. Effective remedies

II. PRINCIPLES OF ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS

A. Principles of assessment of the evidence

B. Establishment of the facts

1. Written evidence

2. Additional documentary evidence

3. Hearing of witnesses

III. PRELIMINARY QUESTIONS

A. Jurisdiction

1. The parties’ submissions

2. Third-party comments

3. The Court’s assessment

B. Relationship between the provisions of the Convention and the rules of international humanitarian law

1. The parties’ submissions

2. Third-party comments

3. The Vienna Convention of 1969 on the Law of Treaties

4. Case-law of the International Court of Justice

5. The Court’s assessment

C. Exhaustion of domestic remedies

1. The parties’ submissions

2. The Court’s assessment

D. Concept of “administrative practice”

IV. ACTIVE PHASE OF HOSTILITIES DURING THE FIVE‑DAY WAR (from 8 to 12 August 2008)

Jurisdiction

1. The parties’ submissions

2. Summary of the relevant evidence

3. The Court’s assessment

V. OCCUPATION PHASE AFTER THE CESSATION OF HOSTILITIES (ceasefire agreement of 12 August 2008)

A. Jurisdiction

1. The parties’ submissions

2. Summary of the relevant evidence

3. The Court’s assessment

B. Alleged violation of Articles 2, 3 and 8 of the Convention and of Article 1 of Protocol No. 1

1. The parties’ submissions

2. Third-party comments

3. Summary of the relevant evidence

4. Relevant provisions of international humanitarian law

5. The Court’s assessment

VI. TREATMENT OF CIVILIAN DETAINEES AND LAWFULNESS OF THEIR DETENTION

A. The parties’ submissions

B. Third-party comments

C. Summary of the relevant evidence

1. Written evidence

2. Hearing of witnesses

D. Relevant provisions of international humanitarian law

E. The Court’s assessment

1. Jurisdiction

2. Alleged violation of Articles 3 and 5 of the Convention

VII. TREATMENT OF PRISONERS OF WAR

A. The parties’ submissions

B. Summary of the relevant evidence

1. Written evidence

2. Hearing of witnesses

C. Relevant provisions of international humanitarian law

D. The Court’s assessment

1. Jurisdiction

2. Alleged violation of Article 3 of the Convention

VIII. FREEDOM OF MOVEMENT OF DISPLACED PERSONS

A. The parties’ submissions

B. Third-party comments

C. Summary of the relevant evidence

1. Written evidence

2. Hearing of witnesses

D. Relevant provisions of international humanitarian law

E. The Court’s assessment

1. Jurisdiction

2. Alleged violation of Article 2 of Protocol No. 4

IX. RIGHT TO EDUCATION

A. The parties’ submissions

B. Third-party comments

C. Summary of the relevant evidence

1. Written evidence

2. Hearing of witnesses

D. Relevant provisions of international humanitarian law

E. The Court’s assessment

1. Jurisdiction

2. Alleged violation of Article 2 of Protocol No. 1

X. OBLIGATION TO INVESTIGATE

A. The parties’ submissions

B. Third-party comments

C. Summary of the relevant evidence

D. Relevant provisions of international humanitarian law

E. The Court’s assessment

1. General principles

2. Application of the above principles to the facts of the case

XI. EFFECTIVE REMEDIES

XII. APPLICATION OF ARTICLE 38 OF THE CONVENTION

XIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

FOR THESE REASONS, THE COURT

CONCURRING OPINION OF JUDGE KELLER

PARTLY CONCURRING OPINION OF JUDGE SERGHIDES

PARTLY DISSENTING OPINION OF JUDGE LEMMENS

PARTLY DISSENTING OPINION OF JUDGE GROZEV

JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, PINTO DE ALBUQUERQUE AND CHANTURIA

JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, WOJTYCZEK AND CHANTURIA

PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

PARTLY DISSENTING OPINION OF JUDGE DEDOV

PARTLY DISSENTING OPINION OF JUDGE CHANTURIA

ANNEX

In the case of Georgia v. Russia (II),

The European Court of Human Rights, sitting as a Grand Chamber composed of:

 Robert Spano, President,

 Linos-Alexandre Sicilianos,
 Jon Fridrik Kjølbro,
 Paul Lemmens,
 Yonko Grozev,
 Helena Jäderblom,
 Vincent A. De Gaetano,
 Ganna Yudkivska,
 Paulo Pinto de Albuquerque,
 Helen Keller,
 Krzysztof Wojtyczek,
 Dmitry Dedov,
 Armen Harutyunyan,
 Gabriele Kucsko-Stadlmayer,
 Georgios A. Serghides,
 Tim Eicke,
 Lado Chanturia, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 23 and 24 May 2018, 23 October 2019 and 2 July 2020,

Delivers the following judgment, which was adopted on the last‑mentioned date:

• PROCEDURE
  1.   INTRODUCTION

1.  The case originated in an application (no. 38263/08) against the Russian Federation lodged with the Court under Article 33 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Georgia on 11 August 2008. It was accompanied by a request for the application of Rule 39 of the Rules of Court (interim measures) against the Russian Federation.

2.  The Georgian Government (“the applicant Government”) were represented before the Court by their Agent, Mr Beka Dzamashvili. They had previously been represented successively by their former Agents: Mr David Tomadze and Mr Levan Meskhoradze.

3.  The Russian Government (“the respondent Government”) were represented by their Representative, Mr Mikhail Galperin. They had previously been represented by their former Representative, Mr Georgy Matyushkin.

4.  The application was allocated to the Fifth Section of the Court (Rule 51 § 1).

5.  On 12 August 2008 the President of the Court, acting as President of Chamber, decided to apply Rule 39, calling upon both the High Contracting Parties concerned to honour their commitments under the Convention, particularly in respect of Articles 2 and 3 of the Convention.

6.  The application of Rule 39 was extended several times.

7.  On 6 February 2009 the Agent of the applicant Government lodged the formal application and annexes with the Registrar of the Court.

8. The applicant Government alleged that – through indiscriminate and disproportionate attacks against civilians and their property on the territory of Georgia by the Russian army and/or the separatist forces placed under their control – the Russian Federation had permitted or caused to exist an administrative practice, resulting in a violation of Articles 2, 3, 5, 8 and 13 of the Convention, Articles 1 and 2 of Protocol No. 1, and Article 2 of Protocol No. 4. They alleged, further, that despite the indication of interim measures the Russian Federation continued to violate its obligations under the Convention and, in particular, was in continuous breach of Articles 2 and 3 of the Convention.

2.   ADMISSIBILITY PROCEDURE BEFORE THE CHAMBER

9.  On 27 March 2009 the President of the Chamber decided to give notice of the application to the respondent Government, inviting them to submit observations on the admissibility of the complaints. After an extension of the time-limit for doing so, the respondent Government filed their observations on 7 October 2009.

10.  On 9 October 2009 the applicant Government were invited to submit their observations in reply. After the time-limit for doing so had been extended, they filed their observations on 10 March 2010. The annexes were received on 22 March 2010.

11.  On 6 September 2010 the President of the Chamber invited the respondent Government to indicate to the Court whether they wished to submit observations in reply. On 12 November 2010 the respondent Government replied that they wished to reserve the possibility of submitting observations at a later date if this were to become necessary in the interests of international justice.

12.  The Court considered the state of the procedure on 25 January 2011 and decided to obtain the oral observations of the parties on the admissibility of the application. It set the date of the hearing for 16 June 2011 and also invited the parties to reply in writing to a list of questions before the date of the hearing.

13.  At the request of the applicant Government, the Court decided on 3 May 2011 to adjourn the date of the hearing on admissibility and that of the submission by the parties of their written observations regarding the questions put by the Court.

14.  On 13 and 15 June 2011 the parties filed their observations.

15.  On 13 December 2011, following a hearing on admissibility questions (Rule 51 § 5) held on 22 September 2011, a Chamber of that Section composed of the following judges: Peer Lorenzen, President, Karel Jungwiert, Anatoly Kovler, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, Nona Tsotsoria, Zdravka Kalaydjieva, and also of Claudia Westerdiek, Section Registrar, declared the application admissible. The Chamber also joined to the merits the objections of incompatibility ratione loci and ratione materiae of the application with the provisions of the Convention and the objection of failure to exhaust domestic remedies.

3.   PROCEDURE ON THE MERITS BEFORE THE GRAND CHAMBER

16.  On 3 April 2012 the Chamber relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).

17.  The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

18.  On 10 October 2013 the President of the Grand Chamber invited the parties to file their observations on the merits of the case in reply to the written questions of the Court. After a number of extensions of the time‑limits fixed for that purpose, the parties submitted their observations, together with annexes, on 30 December 2014 and 5 March 2015 respectively.

19.  In addition, third-party comments were received from the Human Rights Centre, University of Essex, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).

20.  On 29 June 2015 the Court decided to hear further evidence orally, in accordance with Article 38 of the Convention and Rule A1 of the Annex to the Rules of Court. It appointed a delegation of seven judges of the Grand Chamber, composed of Mirjana Lazarova Trajkovska, Nona Tsotsoria, Vincent A. De Gaetano, Helen Keller, Dmitry Dedov, Jon Fridrik Kjølbro and Yonko Grozev.

21.  On 8 October 2015 the President invited each party to submit a list of witnesses (a maximum of twenty) whom they wished the delegation of judges to hear. He also invited additional witnesses chosen by the Court. After several extensions of the time-limit fixed for that purpose, the applicant Government submitted their list of witnesses on 19 February 2016 and the respondent Government submitted theirs on 19 February and 15 March 2016.

22.  On 8 October 2015 the President also invited the parties to submit their observations in reply to the additional written questions of the Court. The questions related in particular to the alleged Russian military operations in the villages of Eredvi, Karbi and Tortiza and the town of Gori in August 2008, which the Court had identified at an earlier stage with a view to examining them as “representative incidents” in relation to the alleged violations. After an extension of the time-limit fixed for that purpose, the parties submitted their observations, together with annexes, on 19 February and 31 March 2016 respectively.

23.  Between 6 and 17 June 2016 the delegation of judges of the Grand Chamber heard witnesses and experts in camera in the presence of the parties’ representatives at the Human Rights Building in Strasbourg.

24.  The delegation heard thirty-three witnesses in total: fifteen had been called by the Government of Georgia, twelve by the Government of the Russian Federation and six directly by the Court.

25.  A list of the witnesses and experts who appeared before the delegation and a summary of their statements are annexed to this judgment. A confidential verbatim record of the statements they gave to the delegation has also been drawn up by the Court Registry and included in the case file.

26.  On 30 September 2016 the President invited the parties to file additional observations on the evidence produced at the witness hearing and the verbatim record of the witnesses’ oral evidence that had been sent to them beforehand (Rule 58 § 1 and Rule A8 § 3 of the Annex to the Rules of Court). After an extension of the time-limit fixed for that purpose, the parties’ observations, together with annexes, reached the Court on 31 January, and on 3, 6 and 8 February 2017. Supplementary observations of the parties, in reply to their respective prior observations, together with annexes, were received on 24 November 2017.

27.  On 3 March 2017 the President decided to obtain the parties’ oral submissions on the merits of the case. He scheduled the date of the hearing for 27 September 2017. On 17 May 2017 he decided to adjourn the hearing to 23 May 2018.

28.  On 27 April 2018, notwithstanding a request from the applicant Government to that effect, the President decided that it was not appropriate to adjourn further the date of the hearing.

29.  A hearing on the merits of the case took place in public in the Human Rights Building, Strasbourg, on 23 May 2018 (Rule 58 § 2).

There appeared before the Court:

(a)  for the applicant Government
Mr G. Lordkipanidze, Deputy Minister of Justice, 
Mr B. Dzamashvili, Agent,
Mr B. Emmerson, QC, 
Mr R. Dixon, QC, Counsel;
Ms T. Rostiashvili,  
Ms M. Bilikhodze,  
Ms N. Tchanturidze,  
Mr G. Nakashidze,  Advisers.

(b)  for the respondent Government
Mr M. Galperin, Deputy Minister of Justice, Representative,
Mr M. Swainston, QC,  
Mr P. Wright, 
Mr R. Blakeley,  
Mr E. Harrison,  
Mr K. Ivanyan,  
Mr V. Torkanovskiy,  
Ms V. Podyukova,  Counsel;
Ms Y. Borisova,  
Mr P. Smirnov,  
Mr A. Gorshkov,  
Mr S. Shkodenko,  Advisers.
 

The Court heard addresses by Mr Emmerson, Mr Galperin and Mr Swainston.

• THE FACTS
  1.   THE CIRCUMSTANCES OF THE CASE

30.  The present application was lodged in the context of the armed conflict that occurred between Georgia and the Russian Federation in August 2008 following an extended period of ever-mounting tensions, provocations and incidents between the two countries.

31.  The facts of the case may be summarised as follows[1].

1.     Overview

32.  In its report of September 2009 the Independent International Fact‑Finding Mission on the Conflict in Georgia[2] (IIFFMCG – hereafter “the EU Fact-Finding Mission”), established by a decision of 2 December 2008 of the Council of the European Union, described the armed conflict in the following terms (p. 5):

“On the night of 7 to 8 August 2008, after an extended period of ever-mounting tensions and incidents, heavy fighting erupted in and around the town of Tskhinvali in South Ossetia. The fighting, which soon extended to other parts of Georgia, lasted for five days. In many places throughout the country it caused serious destruction, reaching levels of utter devastation in a number of towns and villages. Human losses were substantial. At the end, the Georgian side claimed losses of 170 servicemen, 14 policemen and 228 civilians killed and 1 747 persons wounded. The Russian side claimed losses of 67 servicemen killed and 283 wounded. The South Ossetians spoke of 365 persons killed, which probably included both servicemen and civilians. Altogether about 850 persons lost their lives, not to mention those who were wounded, who went missing, or the far more than 100 000 civilians who fled their homes. Around 35,000 still have not been able to return to their homes. The fighting did not end the political conflict nor were any of the issues that lay beneath it resolved. Tensions still continue. The political situation after the end of fighting turned out to be no easier and in some respects even more difficult than before.”

33.  The EU Fact-Finding Mission also summarised the course of the events in question as follows (pp. 10-11):

“On the night of 7 to 8 August 2008, a sustained Georgian artillery attack struck the town of Tskhinvali. Other movements of the Georgian armed forces targeting Tskhinvali and the surrounding areas were under way, and soon the fighting involved Russian, South Ossetian and Abkhaz military units and armed elements. It did not take long, however, before the Georgian advance into South Ossetia was stopped. In a counter-movement, Russian armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia, cutting across the country’s main east-west road, reaching the port of Poti and stopping short of Georgia’s capital city, Tbilisi. The confrontation developed into a combined inter-state and intra-state conflict, opposing Georgian and Russian forces at one level of confrontation as well as South Ossetians together with Abkhaz fighters and the Georgians at another. Such a combination of conflicts going on at different levels is particularly prone to violations of International Humanitarian Law and Human Rights Law. This is indeed what happened, and many of these instances were due to the action of irregular armed groups on the South Ossetian side that would not or could not be adequately controlled by regular Russian armed forces. Then another theatre of hostility opened on the western flank, where Abkhaz forces supported by Russian forces took the upper Kodori Valley, meeting with little Georgian resistance. After five days of fighting, a ceasefire agreement was negotiated on 12 August 2008 between Russian President Dmitry Medvedev, Georgian President Mikheil Saakashvili and French President Nicolas Sarkozy, the latter acting on behalf of the European Union. An implementation agreement followed on 8 September 2008, again largely due to the persistent efforts of the French President.”

2.     Chronology of the conflict

34.  In the light of all the material in the Court’s possession, the chronology of the conflict may be summarised as follows.

35.  In the night of 7 to 8 August 2008, after an extended period of ever‑mounting tensions and incidents, Georgian artillery attacked Tskhinvali (administrative capital of South Ossetia[3]).

36.  From 8 August 2008 Russian ground forces penetrated into Georgia by crossing through Abkhazia and South Ossetia before penetrating into the neighbouring regions in undisputed Georgian territory. They were assisted by the Russian air force and the Black Sea fleet.

37.  Armed fighting essentially took place in the area of Tskhinvali in South Ossetia, and in the area of Gori, situated in the “buffer zone” in undisputed Georgian territory, to the south of South Ossetia.

38.  From 10 August 2008, the Georgian armed forces withdrew from the Tskhinvali region and then from the Gori district.

39.  The Russian armed forces progressively invaded the following Georgian territories:

(i)  all of Abkhazia, including Upper Abkhazia (upper Kodori Valley), formerly under Georgian control;

(ii)  all of South Ossetia, including the Akhalgori district, formerly under Georgian control; that district was occupied from 16 August 2008;

(iii)  the village of Perevi (Sachkhere district), situated in undisputed Georgian territory, to the west of South Ossetia;

(iv)  the “buffer zone”, including the zones bordering South Ossetia and Abkhazia, situated in undisputed Georgian territory, after the Russian armed forces had withdrawn from the town of Gori on 22 August 2008.

40.  A ceasefire agreement was concluded on 12 August 2008 between the Russian Federation and Georgia under the auspices of the European Union, providing, inter alia, that the parties would refrain from the use of force; immediately end hostilities; provide access for humanitarian aid; and that Georgian military forces would withdraw to their usual bases and Russian military forces to the lines prior to the outbreak of hostilities.

41.  By a decree of 26 August 2008 the Russian President, Dmitry Medvedev, recognised South Ossetia and Abkhazia as independent States following a unanimous vote of the Russian Federal Assembly to that end. That recognition was not followed by the international community.

42.  Owing to the delay by the Russian Federation in applying that agreement, a new agreement implementing the ceasefire agreement (Sarkozy-Medvedev agreement) was signed on 8 September 2008. It provided, inter alia, that the Russian Federation would withdraw its troops from the zones bordering Abkhazia and South Ossetia within 10 days of deployment of the EU observation mission on 1 October 2008.

43.  On 17 September 2008 Russia signed “friendship and cooperation” agreements with South Ossetia and Abkhazia in respect of a number of areas. Those agreements provided for the establishment of military bases and the stationing of up to 3,800 Russian soldiers in each of those two regions. The two agreements were unanimously ratified by the State Duma on 29 October 2008 and by the Federation Council on 11 November 2008.

44.  On 10 October 2008 Russia completed the withdrawal of its troops stationed in the “buffer zone”, except for the village of Perevi (Sachkhere district), situated in undisputed Georgian territory, from which the Russian troops did not withdraw until 18 October 2010.

2.   RELEVANT INTERNATIONAL HUMANITARIAN LAW[4]
   1.     The Hague Regulations of 1907

45.  The Hague Regulations concerning the Laws and Customs of War on Land of 18 October 1907[5] contain, inter alia, relevant provisions in situations of occupation.

2.     Geneva Conventions of 1949 and Additional Protocol

46.  The Conventions and Additional Protocol relevant to the present case are the following:

(i)  the First Geneva Convention – Convention (I) – for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted in 1864 and revised in 1906, 1929 and 1949)[6];

(ii)  the Third Geneva Convention – Convention (III) – relative to the Treatment of Prisoners of War (adopted in 1929 and revised in 1949)[7];

(iii)  the Fourth Geneva Convention – Convention (IV) – relative to the Protection of Civilian Persons in Time of War of 12 August 1949[8]; and

(iv)  the Additional Protocol to the Geneva Conventions – Protocol (I) – relating to the Protection of Victims of International Armed Conflicts, adopted on 8 June 1977[9].

47.  Article 1 of each of these Conventions requires the Contracting Parties to “undertake to respect and to ensure respect for the present Convention in all circumstances”.

3.   REQUESTS OF THE PARTIES
   1.     The applicant Government

48.  The applicant Government submitted that on the basis of the available evidence:

“a.  The violations of the Convention fall within the jurisdiction of the Russian Federation under Article 1 of the Convention because it exercised effective authority and control over the relevant areas where the violations took place and/or exercised jurisdiction through state agent authority and control.

b.  The violations form part of a repetitive pattern of acts and omissions that amount to an administrative practice incompatible with the Convention, which have been perpetrated by Russian authorities or the subject of official tolerance by Russian authorities and that in any event, no effective remedies exist having regard to the approach adopted by the Russian authorities to investigation of the violations at issue.

c.  Russia has violated Articles 2, 3, 5, 8 and 13 of the Convention, Articles 1 and 2 of Protocol 1 to the Convention and Article 2 of Protocol 4 to the Convention and has failed to carry out investigations into the incidents forming the basis of these violations.”

Having regard to the evidence relied upon, the applicant Government asked the Court to acknowledge that Russia had infringed the above‑mentioned provisions and had failed to carry out an investigation into the incidents giving rise to those infringements. The applicant Government also sought “just satisfaction for these violations, including Convention compliant investigations, remedial measures and compensation to the injured parties”.

2.     The respondent Government

49.  The respondent Government challenged Georgia’s application for the following reasons:

“1.  Georgia’s allegations relate to alleged events that took place outside the jurisdiction of the Russian Federation and outside Russia’s effective control. Accordingly, Georgia’s complaints, aside from being specious and contrived, relate to matters outside the jurisdiction of the Court.

2.  Georgia’s case relates substantially to alleged conduct of Russian armed forces in an armed conflict and the immediate aftermath of an armed conflict which Georgia started by its attack upon South Ossetia and Russian peacekeepers and nationals in South Ossetia.

3.  Russia’s military response was legitimate under public international law and IHL [international humanitarian law]. In the international armed conflict that resulted, Russia’s obligations were defined and governed exclusively by IHL, and the Court has no jurisdiction over the relevant questions of Russia’s compliance with IHL. Without prejudice to that position, Russia complied fully with IHL.

4.  Georgia’s allegations of human rights abuses and Russian responsibility for them are false on the facts and lack evidential support. The limited evidence that has been put before the Court by Georgia is not a proper basis for the serious charges levelled against Russian forces. ...

5.  To the extent that Georgians were injured or their property damaged outside areas of active conflict (and Georgia vastly exaggerates the instances), the perpetrators appear to have been South Ossetians including rogue militia members, disaffected South Ossetian civilians and criminals. ...

6.  As regards Georgia’s complaints of inconvenience to Georgian nationals from the maintenance of border controls, those controls are the exclusive responsibility of the South Ossetian and Abkhazian governments. ...

7.  Georgian nationals have remedies in South Ossetia and Abkhazia. They also have capacity to bring cases in Russia. However, Georgia has failed consistently to engage with or provide assistance to criminal investigations in South Ossetia, Abkhazia and Russia.”

The primary submission of the respondent Government was that the Court should reject Georgia’s application because

“(1)  It is premised on Russia having effective control over areas of conflict and subsequent civil disorder, where it should be apparent even at this stage that Russia did not have effective control;

(2)  It is premised upon alleged breaches of Convention law where IHL, exclusively, applied.

If the Court is minded to go yet further, the Russian Federation respectfully submits that it will be necessary for the Court to make arrangements to receive evidence and for the evidence to be appropriately tested, including by cross-examination. It will also be necessary to take into account evidence from individual applications which bears on the facts in dispute.”

In view of the foregoing, while reconfirming its objections on jurisdiction and admissibility in the present case, the respondent Government alternatively respectfully requested that the application be “dismissed on the merits in full”.

• THE LAW
  1.   MAIN ASPECTS OF THE APPLICATION

50.  The Court notes that the present application contains the following main aspects.

1.     Active phase of hostilities during the five-day war after the intervention by the Russian armed forces[10] (from 8 to 12 August 2008)

51.  Alleged attacks (bombing, shelling, artillery fire) by the Russian armed forces and/or South Ossetian forces, starting on 8 August 2008 and ending on 12 August 2008 – complaints under Article 2 of the Convention.

2.     Occupation phase after the cessation of hostilities (ceasefire agreement of 12 August 2008)

52.  Allegations of killings, ill-treatment, looting and burning of homes by the Russian armed forces and South Ossetian forces in South Ossetia and in the adjacent “buffer zone”, occurring in particular in the period after 12 August 2008 – complaints under Articles 2, 3 and 8 of the Convention, and under Article 1 of Protocol No. 1.

3.     Treatment of civilian detainees and lawfulness of their detention

53.  Alleged illegal detention in dire conditions of some 160 civilians (mostly women and elderly people) for approximately fifteen days (they were all released on 27 August 2008) by South Ossetian forces; some of them were also allegedly ill-treated – complaints under Articles 3 and 5 of the Convention.

4.     Treatment of prisoners of war

54.  Alleged ill-treatment and torture of more than thirty prisoners of war by Russian and South Ossetian forces in August 2008 – complaints under Article 3 of the Convention.

5.     Freedom of movement of displaced persons

55.  Alleged prevention by the Russian Federation and the de facto authorities of Abkhazia and South Ossetia of the return to those regions of about 23,000 forcibly displaced Georgians[11] – complaints under Article 2 of Protocol No. 4.

6.      Right to education

56.  Alleged looting and destruction of public schools and libraries by Russian troops and separatist authorities and intimidation of Georgian pupils and teachers – complaints under Article 2 of Protocol No. 1.

7.    Obligation to investigate

57.  Alleged lack of investigations into the circumstances surrounding the events giving rise to the alleged violations regarding Article 2 – complaints under the procedural limb of Article 2 of the Convention.

8.     Effective remedies

58.  Alleged lack of effective remedies in respect of the violations alleged – complaints under Article 13 of the Convention taken in conjunction with Articles 3, 5 and 8 of the Convention and with Articles 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4.

2.   PRINCIPLES OF ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
   1.     Principles of assessment of the evidence

59.  The Court refers in this connection to the general principles which were recently summarised as follows in Georgia v. Russia (I) ([GC], no. 13255/07, ECHR 2014):

“93.  In assessing evidence the Court has adopted the standard of proof ‘beyond reasonable doubt’ laid down by it in two inter-State cases (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25, and Cyprus v. Turkey [GC], no. 25781/94, § 113, ECHR 2001‑IV) and which has since become part of its established case-law (see, inter alia, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 26, ECHR 2004‑VII, and Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 158, 1 July 2010).

94.  However, it has never been its purpose to borrow the approach of the national legal systems that use that standard in criminal cases. The Court’s role is to rule not on guilt under criminal law or on civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the High Contracting Parties of their engagements to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, inter alia, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII, and Mathew v. the Netherlands, no. 24919/03, § 156, ECHR 2005‑IX).

95.  In establishing the existence of an administrative practice, the Court will not rely on the concept that the burden of proof is borne by one or other of the two Governments concerned, but will rather study all the material before it, from whatever source it originates (see Ireland v. the United Kingdom and Cyprus v. Turkey, both cited above). In addition, the conduct of the parties in relation to the Court’s efforts to obtain evidence may constitute an element to be taken into account (see Ireland v. the United Kingdom; Ilaşcu and Others; and Davydov and Others, all cited above).

...

138.  [Furthermore], the Court would reiterate that, as ‘master of its own procedure and its own rules ..., [it] has complete freedom in assessing not only the admissibility and relevance but also the probative value of each item of evidence before it’ (see Ireland v. the United Kingdom, cited above, § 210 in fine). It has often attached importance to the information contained in recent reports from independent international human rights protection associations or governmental sources (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 131, ECHR 2008; NA. v. the United Kingdom, no. 25904/07, § 119, 17 July 2008; M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 227 and 255, ECHR 2011; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 118, ECHR 2012). In order to assess the reliability of these reports, the relevant criteria are the authority and reputation of their authors, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and whether they are corroborated by other sources (see, mutatis mutandis, Saadi, cited above, § 143; NA. v. the United Kingdom, cited above, § 120; and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 230, 28 June 2011).”

60.  Having adopted the above approach in a recent inter-State case involving the same two High Contracting Parties, the Court considers that it would not be appropriate to alter this approach in the present case.

2.     Establishment of the facts

61.  The Court observes at the outset that it is particularly difficult to establish the facts in the context of an inter-State case such as the present one, which concerns an armed conflict and its consequences, involving thousands of people and taking place over a significant period of time across a vast geographical area.

62.  In the present case, the Court has relied on, inter alia, the observations of the parties and the many documents submitted by them.

1.    Written evidence

63.  It has also had regard to the following reports by international governmental and non-governmental organisations[12]:

(i)  Report of the EU Fact-Finding Mission (see paragraph 32 above), published in September 2009;

(ii)  “Human Rights in the war-affected areas following the conflict in Georgia” (report by the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) of 27 November 2008);

(iii)  “Human Rights in Areas affected by the South Ossetia Conflict” and “Human Rights Issues following the August 2008 Armed Conflict” (reports by the Commissioner for Human Rights of the Council of Europe of 8 September 2008 and 15 May 2009);

(iv)  “Civilians in the line of fire: the Georgia-Russia conflict” (Amnesty International report of November 2008);

(v)  “Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia” and “A Dying Practice: Use of Cluster Munitions by Russia and Georgia in August 2008” (Human Rights Watch reports of January 2009 and April 2009);

(vi)  “South Ossetia: The Burden of Recognition” and “Abkhazia: the Long Road to Reconciliation” (International Crisis Group reports of 7 June 2010 and 10 April 2013);

(vii)  “August Ruins” (report published by a number of Georgian non‑governmental organisations – Georgian Young Lawyers’ Association, “Article 42 of the Constitution”, Human Rights Centre, “21st Century” and Centre for the Protection of Constitutional Rights in 2009).

64.  The Court has attached importance to the report by the EU Fact‑Finding Mission, whose mandate was specifically to establish the facts concerning the conflict in Georgia (particularly from 7 August to 7 September 2008)[13].

65.  That mission was composed of about twenty legal and military experts, historians and political analysts. It worked intensively for nine months, consulted all the parties to the conflict and the most representative international organisations, and carried out numerous field visits.

66.  The Court has also referred to the report “High-Resolution Satellite Imagery and the Conflict in South Ossetia” published by the American Association for the Advancement of Science (AAAS) on 9 October 2008, finding that the satellite imagery analysis in the report constitutes objective evidence. The report was produced by the Geospatial Technologies Project as part of the Scientific Responsibility, Human Rights and Law Program of the AAAS, an American international non-profit organisation with the aim of promoting the advancement of science throughout the world. The AAAS is also one of the oldest federations of scientific organisations and perhaps the largest, with more than 275 affiliate bodies in more than ninety-one countries.

67.  It should also be pointed out that on 13 October 2015 the Prosecutor at the International Criminal Court submitted to that court a “Request for authorization of an investigation into the Situation in Georgia covering the period from 1 July to 10 October 2008, for war crimes and crimes against humanity allegedly committed in and around South Ossetia”. In a decision of 27 January 2016, Pre-Trial Chamber I of the International Criminal Court “authorize[d] the Prosecutor to proceed with an investigation of crimes within the jurisdiction of the Court, committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008”. Both the Prosecutor’s Request and the Pre-Trial Chamber’s decision contain relevant elements concerning the events in question and the investigations carried out by the national authorities. It should be noted, however, that the standard of proof is lower than the standard of “beyond reasonable doubt” applied by the Court. The Pre-Trial Chamber phrased it as follows:

“24.  At this point, the Chamber provides its conclusions on the question of whether, in light of the facts alleged by the Prosecutor as supported by the material presented together with the Request, there is a reasonable basis to believe that a crime within jurisdiction of the Court has been committed.

25.  It has been observed previously by other Chambers acting under article 15 of the Statute that in order to satisfy the requirements, the material provided by the Prosecutor ‘certainly need not point towards only one conclusion’, nor does it have to be conclusive. All that is required is that there ‘exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court ‘has been or is being committed’.”

2.    Additional documentary evidence

68.  In a letter of 8 October 2015, the Court asked the parties to produce their respective “combat reports” on the armed conflict of 2008 in Georgia.

69.  In letters of 3 and 15 December 2015 and 4 February 2016 it drew the respondent Government’s attention to Rule 33 § 2 of the Rules of Court, which provides that public access to a document or to any part of it may be restricted and to the fact that sensitive passages may also be removed and/or a summary of the relevant passages submitted.

70.  By a letter of 19 February 2016, the applicant Government submitted extracts of their “combat reports”. The respondent Government, for their part, sent letters of 15 December 2015 and 1 February 2016 refusing to submit their “combat reports” on the grounds that they were classified and highly sensitive documents and that the Court’s procedures for preserving their confidentiality were inadequate.

71.  In a letter of 8 April 2016, the Court also asked the applicant Government to produce their observations in the proceedings under way between them and Elbit Systems Limited before the Commercial Court of England in London. In a letter of 3 May 2016, it also drew the applicant Government’s attention to Rule 33 § 2 (see paragraph 69 above).

72.  The applicant Government initially refused to submit these observations, on the grounds that they were classified “top secret” by the Georgian authorities and that, in the agreement signed between the parties, the latter had undertaken not to reveal the information in those documents.

In a letter of 30 November 2017, the applicant Government finally submitted a redacted version (without the sensitive passages) of these observations, requesting the Court to treat them as confidential in accordance with Rule 33 §§ 2 and 3.

73.  The applicant Government also submitted several demining reports in 2017 and 2018, in particular from the HALO Trust, a British demining company.

3.    Hearing of witnesses

74.  The Court also had regard to the statements of witnesses and experts during the witness hearing held in Strasbourg from 6 to 17 June 2016. As well as the establishment of the facts, the purpose of the hearing was to test the veracity of the evidence submitted by the parties and the evidence set out in the reports by international organisations concerning some of the aspects of the application outlined above (see paragraphs 51-55 above). The Court heard a total of thirty-three witnesses: fifteen had been called by the applicant Government, twelve by the respondent Government and six directly by the Court (see paragraph 24 above, and also the list of witnesses and experts and the summary of their statements in the annex to the judgment).

3.   PRELIMINARY QUESTIONS

75.  In its admissibility decision (Georgia v. Russia (II) (dec.), no. 38263/08, 13 December 2011), the Court dismissed the respondent Government’s objections regarding the six-month time-limit and the similarity between the present application and the one lodged with the International Court of Justice (ICJ), and joined to the merits the objections of incompatibility ratione loci and ratione materiae of the application with the provisions of the Convention and the objection of failure to exhaust domestic remedies.

76.  In order to facilitate the handling of the present application, the Court will start with a general overview of the preliminary questions, such as those relating to jurisdiction and the relationship between the Convention and international humanitarian law, and to those regarding exhaustion of domestic remedies and the concept of administrative practice. It will then continue with an examination of these preliminary questions in relation to each of the above-described aspects of the application (see paragraphs 50-58 above).

1.     Jurisdiction

77.  The first question which the Court must address is whether the victims of the alleged violations fell within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention.

1.    The parties’ submissions
   1.    The applicant Government

78.  The applicant Government submitted that the violations of the Convention of which they complained fell within the jurisdiction of the Russian Federation within the meaning of Article 1 of the Convention.

They alleged, firstly, that during all the periods in question the regions of Tskhinvali/South Ossetia and Abkhazia had been under the effective authority and control of the Russian Federation. Prior to the conflict, the Russian Federation had already controlled the majority of those regions, both directly, through its armed forces, and indirectly, by controlling and supporting the de facto South Ossetian and Abkhazian authorities, including the separatist troops. During the period between 7 to 8 August and 22 August 2008 the Russian forces had invaded the rest of South Ossetia and Abkhazia, arriving from the north via the Roki Tunnel, and from the west via Abkhazia. They had taken effective control of the last parts of South Ossetia and Abkhazia that had still been under Georgian control, and which remained under Russian control today.

They alleged, secondly, that during the conflict Russia had taken effective control of other regions, including the “buffer” zone, namely, (a) the majority of the Gori district, including the town of Gori; (b) part of the Kareli district; and (c) part of the Sachkhere district. The Russian forces had crossed the Abkhazian administrative border to take control of the towns of Zugdidi, Senaki and Poti. On 22 August Russia had withdrawn from the town of Gori but had kept control of the territory to the south of the administrative border (the “buffer zone”), not withdrawing its forces until 8 October. During that period the Russian Federation had also exercised effective control over those other territories, both directly by means of its armed forces, and indirectly through the agents placed under its control, which had been comprised of separatist forces and irregular troops.

Cumulatively with or alternatively to the exercise of effective control of the above-mentioned territories, the criterion of State agent authority and control supported the claim that the Russian Federation’s responsibility was engaged on account of the acts and omissions of its armed forces and of all the agents over whom it exercised authority and control, including the militia and separatist forces. In particular, Russia had been responsible for the bombing of Georgian territory between 8 and 12 August 2008 and for the attacks on civilian convoys and vehicles attempting to flee the bombs.

The applicant Government’s position was confirmed by the Court’s well‑established case-law regarding the extraterritorial application of the Convention (they referred to Loizidou v. Turkey (merits), 18 December 1996, §§ 52 and 56, Reports of Judgments and Decisions 1996-VI; Cyprus v. Turkey [GC], no. 25781/94, § 77, ECHR 2001‑IV; Issa and Others v. Turkey, no. 31821/96, § 74, 16 November 2004; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 383-85, ECHR 2004‑VII; Al‑Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 138, ECHR 2011; and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 122-23, ECHR 2012 (extracts)).

2.    The respondent Government

79.  The respondent Government submitted that Russia’s military intervention had been an urgent response to Georgia’s aggression, which had brought Russia into armed conflict with an aggressor equipped with substantial military resources.

The overall conflict had been hard fought, and Georgia had repeatedly attempted to regroup its forces and to counter-attack. Russia’s forces had rushed to Tskhinvali and engaged Georgian forces there, and had fought hard to expel them from surrounding Georgian villages which Georgian forces had used as artillery positions, muster points for counter-attacks and defensive positions to resist the Russian advance. For a long time there had been a confused and oscillating front line, and even after the ceasefire brokered by President Sarkozy, concern about a potential renewal of hostilities and a counter-attack had kept Russian forces at the front line and guarding their supply routes. In Abkhazia, Russian forces had not been involved in the conflict, but had been stationed there by way of deterrence, against the background of Georgia’s plans to invade Abkhazia too.

The result was that there had never been a time when the Russian Federation had consolidated “effective control” over South Ossetia or Abkhazia through its armed forces. On the contrary, the situation had been very different from that in Loizidou ((merits), cited above, §§ 52 and 56) where Turkey had been found to have effective control over more than 3,400 sq. km of territory with 30,000 Turkish troops with no active conflict or ethnic violence. The Russian contingent in South Ossetia and Abkhazia had never risen above 12,000 personnel at the height of the conflict, covering an area of 12,500 sq. km. In South Ossetia, Russian forces had been faced with a well-equipped Georgian army, the threat of reinforcements flown in by the United States of America, and massive inter-ethnic hostility unleashed by Georgia’s aggression. Moreover, as was clear from the case file, Russia had not had any State agent authority over the individuals concerned, who were not its agents.

Furthermore, the Russian Federation had not had any effective control through the South Ossetian and Abkhazian governments or through support for those governments, which had legitimate status as independent decision‑makers which were not “subordinate” in any way. In reality the Russian Federation had not occupied or administered South Ossetia or Abkhazia, but carried out a military operation that had been entirely justified under public international law and limited in time (from 8-20 August 2008), in order to protect Russian peacekeeping forces and the civilian population.

The respondent Government also reiterated the distinction between the concepts of jurisdiction and attribution (State responsibility) in public international law, referring to the Court’s case-law (Loizidou v. Turkey (preliminary objections), 23 March 1995, §§ 61 and 64, Series A no. 310, and Jaloud v. the Netherlands [GC], no. 47708/08, §§ 154-55, ECHR 2014), and to the judgments of the ICJ in the cases of Nicaragua v. United States of America[14] and Bosnia and Herzegovina v. Serbia and Montenegro[15].

2.    Third-party comments

80.  In its third-party comments, the Human Rights Centre, University of Essex, observed that it was important to distinguish between the fact of the exercise of jurisdiction outside national territory and the scope of the jurisdiction exercised. Whether or not a State had lawful grounds to act in a foreign territory was virtually immaterial to the applicability of human rights obligations regarding its actions. The deciding matter for the applicability of obligations was the factual exercise of jurisdiction, whether lawful or not.

The third party pointed out that under the Court’s case-law the key concept in determining whether an act or omission outside the national territory was within the jurisdiction of the respondent State was the question of control. It described the various different situations in which control was exercised, be this physical control over an individual, the State’s control over its agents, or the State’s control over territory through the presence of its security forces or through a subordinate administration. While there were situations in which the State had an obligation to protect an individual from acts perpetrated by an agent of the State, in some circumstances the State could have an obligation to protect an individual from the acts of third parties. The third party added: “In certain circumstances, the State may be directly responsible for the acts of non-State agents. If the State exercises ‘effective control’ over the acts of an organised armed group, those acts will be attributable to the State, under general principles of state responsibility[16]. This is independent of the question of control exercised through a subordinate administration.”

In the present case, in order to determine whether the alleged violations were within the jurisdiction of the Russian Federation, the third party submitted that the Court needed to ask itself the following questions:

“1.  What was the nature of the control, if any, exercised by Russia in South Ossetia and Abkhazia prior to the armed conflict? In particular, was it in occupation or did it exercise a decisive influence over the local authorities? 2.  Did the nature of the control exercised by Russia in South Ossetia and Abkhazia change upon the outbreak of hostilities? Did it exercise ‘effective control’ over the local militia? 3.  In undisputed Georgian territory, was the nature of the control exercised during the armed conflict confined to the first three types of control discussed above? 4.  After the end of the active hostilities, what was the nature of the control exercised by Russia in areas outside South Ossetia and Abkhazia (i.e. the ‘buffer zones’)? 5.  After the end of the active hostilities, what was the nature of the control exercised by Russia within South Ossetia and Abkhazia? In particular, what was the nature of its relationship with the local authorities in control of those areas?”

3.    The Court’s assessment
   1.    General principles relating to the concept of jurisdiction under Article 1 of the Convention

81.  The general principles have been laid down in, among other cases, Al-Skeini and Others (cited above):

“130.  Article 1 of the Convention reads as follows:

‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.’

As provided by this Article, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’ (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161, and Banković and Others [v. Belgium and Others (dec.) [GC], no. 52207/99], § 66[, ECHR 2001‑XII]). ‘Jurisdiction’ under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others, cited above, § 311).

(α)  The territorial principle

131.  A State’s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković and Others, cited above, §§ 61 and 67; and Ilaşcu and Others, cited above, § 312). Jurisdiction is presumed to be exercised normally throughout the State’s territory (see Ilaşcu and Others, cited above, § 312, and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases (see Banković and Others, cited above, § 67).

132.  To date, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts.

(β)  State agent authority and control

133.  The Court has recognised in its case-law that, as an exception to the principle of territoriality, a Contracting State’s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory (see Drozd and Janousek [v. France and Spain, 26 June 1992], § 91[, Series A no. 240]; Loizidou (preliminary objections), cited above, § 62; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI; and Banković and Others, cited above, § 69). The statement of principle, as it appears in Drozd and Janousek and the other cases just cited, is very broad: the Court states merely that the Contracting Party’s responsibility ‘can be involved’ in these circumstances. It is necessary to examine the Court’s case-law to identify the defining principles.

134.  Firstly, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others (see Banković and Others, cited above, § 73; see also X. v. Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158; X. v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977, [Decisions and Reports (DR)] 12, p. 73; and M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193).

135.  Secondly, the Court has recognised the exercise of extraterritorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government (see Banković and Others, cited above, § 71). Thus, where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, 14 May 2002; and X. and Y. v. Switzerland, nos. 7289/75 and 7349/76, Commission decision of 14 July 1977, DR 9, p. 57).

136.  In addition, the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan ([v. Turkey [GC], no. 46221/99, § 91, ECHR 2005‑IV]), the Court held that ‘directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory’. In Issa and Others (cited above), the Court indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In Al‑Saadoon and Mufdhi v. the United Kingdom ((dec.), no. 61498/08, §§ 86-89, 30 June 2009), the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Lastly, in Medvedyev and Others v. France ([GC], no. 3394/03, § 67, ECHR 2010), the Court held that the applicants were within French jurisdiction for the purposes of Article 1 of the Convention by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.

137.  It is clear that, whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘divided and tailored’ (compare the decision in Banković and Others, cited above, § 75).

(γ)  Effective control over an area

138.  Another exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration (see Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey, cited above, § 76; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; and Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Cyprus v. Turkey, cited above, §§ 76‑77).

139.  It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94).

140.  The ‘effective control’ principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, ‘with due regard ... to local requirements’, to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term ‘jurisdiction’ in Article 1. The situations covered by the ‘effective control’ principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections), cited above, §§ 86-89, and Quark Fishing Ltd [v. the United Kingdom (dec.), no. 15305/06, ECHR 2006‑XIV]).

(δ)  The legal space (‘espace juridique’) of the Convention

141.  The Convention is a constitutional instrument of European public order (see Loizidou (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86).

142.  The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘legal space of the Convention’ (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States. The Court has not in its case-law applied any such restriction (see, among other examples, Öcalan; Issa and Others; Al-Saadoon and Mufdhi; and Medvedyev and Others, all cited above).”

2.    Methodology followed in the present case

82.  As indicated in the same judgment, “the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts” (ibid., § 132).

83.  In the present case the Court considers that a distinction needs to be made between the military operations carried out during the active phase of hostilities and the other events which it is required to examine in the context of the present international armed conflict, including those which occurred during the “occupation” phase after the active phase of hostilities had ceased, and the detention and treatment of civilians and prisoners of war, freedom of movement of displaced persons, the right to education and the obligation to investigate.

84.  It will therefore examine in respect of each of these aspects of the application whether they fell within the jurisdiction of the Russian Federation, before examining them on the merits (see paragraphs 106-44, 146-75, 238-39, 268-69, 292-95, 312 and 328-32 below).

2.     Relationship between the provisions of the Convention and the rules of international humanitarian law
   1.    The parties’ submissions
      1.    The applicant Government

85.  The applicant Government submitted that in Hassan v. the United Kingdom ([GC], no. 29750/09, ECHR 2014) the Court had made it clear that, in accordance with international law, the Convention continued to apply during international and non-international armed conflict. In that judgment the Court had also found that it could take into account the provisions of international humanitarian law when interpreting Article 5 even in the absence of a derogation under Article 15. That conclusion was subject to the Court being able to interpret Article 5 § 1 in line with international humanitarian law in a way that was “in keeping with the fundamental purpose of Article 5 § 1, which was to protect the individual from arbitrariness” (ibid., § 105).

According to the applicant Government, there was no conflict in this case between the requirements of international humanitarian law and human rights law. As such, it did not raise any difficulty for the Court in relation to it “seeking to ensure that the Convention so far as possible be interpreted in harmony with other rules of international law of which it formed part, including international humanitarian law” (ibid., §§ 77 and 102).

2.    The respondent Government

86.  The respondent Government submitted, as their principal argument, that “Russia’s military response was legitimate under public international law and IHL [international humanitarian law]. In the international armed conflict that resulted, Russia’s obligations were defined and governed exclusively by IHL, and the Court has no jurisdiction over the relevant questions of Russia’s compliance with IHL. Without prejudice to that position, Russia complied fully with IHL.” In support of that position, they argued as follows:

“In the respectful submission of the Russian Federation, it would be wrong for an approach in favour of dual application of IHL and HRL [international human rights law] to gain momentum from cases [such as Hassan and Jaloud] which on their facts, in the issues addressed and upon the Court’s analysis, do not begin to grapple with the issues of jurisdiction, law and justiciability presented by this case.

Russia respectfully submits that the Court adopted a wrong approach when, in effect, it assumed that it was possible to use IHL to interpret Convention law in both cases. It may be that it was invited down this inappropriate path by the concession of one State – the United Kingdom – that it could do so in Hassan.

On any view, however, it is one thing to say that the Convention applies, and that IHL can be used to modify Convention rights in a situation of detention, or in relation to soldiers performing a policing role in an area where they have effective control. It is quite another to suggest that the Convention applies in armed conflict and the chaos that follows, or to say that the Court can mould the Convention to match IHL on a general basis and so assume jurisdiction over alleged breaches of IHL in a conflict situation. That would not be permissible, practical, or desirable for the reasons developed below.

(A)  The Ultra Vires Issue

...

States have not agreed that the Court should adjudicate on matters of IHL. The European Court of Human Rights is only empowered by Article 32 to address ‘... all matters concerning the interpretation and application of the Convention and the Protocols thereto’. Those do not include matters of interpretation and application of the Geneva Conventions.

On the contrary, the States Parties to the Convention are also States Parties to the Geneva Convention, and in that context, they specifically rejected a suggestion that the International Court of Justice should have jurisdiction over IHL.

On the contrary none of the core instruments of IHL give any jurisdiction to any court in respect of contraventions of IHL.

...

Moreover, this is not an area where a living instrument can grow. On the contrary, if a living instrument grows too far from its roots, it may die, or be pruned. The confinement of the Convention away from armed conflict could not be clearer from the overt conduct of the States who subscribe to it.

Finally on this point, and pace the obligations of the Court in Hassan [at 101] which perhaps again flow from the United Kingdom’s concession, States do not derogate from the application of HRL in zones of conflict because of recognition that, even without derogation, HRL will be read in the light of IHL. They do not derogate because they do not anticipate that HRL will apply in such cases at all.

(B)  The Inconsistency Issue

The Convention is not designed for conflict. It only mentions war once, and that is to recognise that it may be necessary to abrogate Convention protections domestically, in time of war. Nothing in the Convention purports to regulate war.

Moreover, Convention rights do not sit well with IHL rules. Many of them are completely irreconcilable to a degree that demonstrates that Convention law and IHL were never intended to operate together.”

2.    Third-party comments

87.  In its comments the Human Rights Centre of the University of Essex reiterated first of all that the rules on the resort to armed force (jus ad bellum) were irrelevant to the analysis of the law of armed conflict (“LOAC”). Whether the State was acting in self-defence or not, it was required to obey the same rules in the conduct of the hostilities and the protection of victims.

It added that where the acts of an organised armed group were, in fact, attributable to a State, the conflict was international. The test which was to be applied to determine whether the relationship between an organised armed group and a State was such as to make the conflict international was unclear. The difference in approach of the International Court of Justice and of the International Criminal Tribunal for the former Yugoslavia regarding the issue of a State’s international responsibility for non-State actors gave rise to a potential major difficulty. If a conflict was international because an organised armed group was under the “overall control” of a State, this meant that the rules applicable to international armed conflicts applied to the acts of the group (the ICTY approach). If, however, the group was not under the “effective control” of the State, its acts were not attributable to that State (the ICJ). It would, therefore, be prudent to apply the same control test for classification and attribution. Whether this should be the “overall” or the “effective” test remained a subject of debate.

In the present case, whatever the general relationship between Russia and the militia throughout the conflict, it was possible that the latter had been under the control of Russian forces in a particular incident. This meant that, in order to determine the LOAC rules that were potentially relevant, the Court had to examine each incident, to see which forces had been involved.

The third party referred to its observations submitted in Hassan (cited above), in which it had argued that the applicability of LOAC was not a reason for a human rights court not to exercise jurisdiction. Rather, LOAC might need to be taken into account by the body when determining if there was a violation (ibid., §§ 91-95). It submitted that situations formed a spectrum. At one end, there would only be a violation of human rights law (HRL) if there was a violation of LOAC. At the other end, the only law applicable would be HRL, but the situation of conflict might be relevant as part of the background. In the middle, the two bodies of rules might both be relevant. In summary, it was more likely that incidents involving the rules on the conduct of hostilities between the belligerents, including rules on weapon use, would be at one end of the spectrum, at least in the case of incidents of high intensity. Situations involving the rules on the protection of victims, particularly where they arose away from the immediate scene of hostilities, were more likely to involve a mixture of LOAC and HRL. This approach meant that there could be no general rule mandating the same balance of LOAC and HRL in each case. Rather, each type of situation had to be examined in turn. In practice, there was less likely to be a conflict between LOAC and HRL at the lower end of the spectrum. The LOAC rules on the protection of victims tended to prohibit similar behaviour to that prohibited under HRL. Where most difficulty was likely to arise was where LOAC permitted behaviour prohibited under HRL.

3.    The Vienna Convention of 1969 on the Law of Treaties

88.  Article 31 of the Vienna Convention of 1969 on the Law of Treaties (“the Vienna Convention”) provides as follows:

Article 31 – General Rule of Interpretation

“1.  A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2.  The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a)  Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b)  Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3.  There shall be taken into account, together with the context:

(a)  Any subsequent agreement between the parties regarding the interpretation of

the treaty or the application of its provisions;

(b)  Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c)  Any relevant rules of international law applicable in the relations between the parties.

4.  A special meaning shall be given to a term if it is established that the parties so intended.”

4.    Case-law of the International Court of Justice (ICJ)

89.  In its advisory opinion of 8 July 1996 on Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion, ICJ Reports 1996, p. 226), the ICJ stated as follows:

“25.  The Court observes that the protection of the International Covenant for the Protection of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life, however, is not such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.”

90.  In its advisory opinion of 9 July 2004 on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion, ICJ Reports 2004, p. 136), the ICJ rejected Israel’s argument that the human rights instruments to which it was a party were not applicable to occupied territory, and held:

“106.  ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.”

91.  In its judgment of 19 December 2005 in Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) (Judgment, ICJ Reports 2005, p. 168), the ICJ held as follows:

“215.  The Court, having established that the conduct of the UPDF [Uganda People’s Defence Force] and of the officers and soldiers of the UPDF is attributable to Uganda, must now examine whether this conduct constitutes a breach of Uganda’s international obligations. In this regard, the Court needs to determine the rules and principles of international human rights law and international humanitarian law which are relevant for this purpose.

216.  The Court first recalls that it had occasion to address the issues of the relationship between international humanitarian law and international human rights law and of the applicability of international human rights law instruments outside national territory in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In this Advisory Opinion the Court found that ‘the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.’ (I.C.J. Reports 2004, p. 178, para. 106).

It thus concluded that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration. The Court further concluded that international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories (ibid., pp. 178-181, paras. 107-113).”

5.    The Court’s assessment
   1.    General principles

92.  The Court observes that it has examined the complex question of the relationship between Convention law and international humanitarian law in a certain number of cases brought before it.

93.  Reference should be made to, among others, the Hassan judgment (cited above), which was inspired by the case-law of the ICJ in this regard. The relevant passages read as follows:

“100.  The starting-point for the Court’s examination must be its constant practice of interpreting the Convention in the light of the rules set out in the Vienna Convention on the Law of Treaties of 23 May 1969 (see Golder v. the United Kingdom, 21 February 1975, Series A no. 18, § 29, and many subsequent cases). Article 31 of the Vienna Convention, which contains the ‘general rule of interpretation’ ..., provides in paragraph 3 that there shall be taken into account, together with the context, (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and (c) any relevant rules of international law applicable in the relations between the parties.

101.  There has been no subsequent agreement between the High Contracting Parties as to the interpretation of Article 5 in situations of international armed conflict. However, in respect of the criterion set out in Article 31 § 3 (b) of the Vienna Convention ..., the Court has previously stated that a consistent practice on the part of the High Contracting Parties, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the Convention (see, mutatis mutandis, Soering, cited above, §§ 102-03, and Al‑Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 120, ECHR 2010). The practice of the High Contracting Parties is not to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. As the Court noted in Banković and Others (cited above, § 62), although there have been a number of military missions involving Contracting States acting extraterritorially since their ratification of the Convention, no State has ever made a derogation pursuant to Article 15 of the Convention in respect of these activities. The derogations that have been lodged in respect of Article 5 have concerned additional powers of detention claimed by States to have been rendered necessary as a result of internal conflicts or terrorist threats to the Contracting State (see, for example, Brannigan and McBride v. the United Kingdom, 26 May 1993, Series A no. 258-B; Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI; and A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009; ...). Moreover, it would appear that the practice of not lodging derogations under Article 15 of the Convention in respect of detention under the Third and Fourth Geneva Conventions during international armed conflicts is mirrored by State practice in relation to the International Covenant for the Protection of Civil and Political Rights. Similarly, although many States have interned persons pursuant to powers under the Third and Fourth Geneva Conventions in the context of international armed conflicts subsequent to ratifying the Covenant, no State has explicitly derogated under Article 4 of the Covenant in respect of such detention ..., even subsequent to the advisory opinions and judgment referred to above, where the International Court of Justice made it clear that States’ obligations under the international human rights instruments to which they were parties continued to apply in situations of international armed conflict ...

102.  Turning to the criterion contained in Article 31 § 3 (c) of the Vienna Convention ..., the Court has made it clear on many occasions that the Convention must be interpreted in harmony with other rules of international law of which it forms part ... This applies no less to international humanitarian law. The four Geneva Conventions of 1949, intended to mitigate the horrors of war, were drafted in parallel to the European Convention on Human Rights and enjoy universal ratification. The provisions in the Third and Fourth Geneva Conventions relating to internment, at issue in the present application, were designed to protect captured combatants and civilians who pose a security threat. The Court has already held that Article 2 of the Convention should ‘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’ (see Varnava and Others, cited above, § 185), and it considers that these observations apply equally in relation to Article 5. Moreover, the International Court of Justice has held that the protection offered by human rights conventions and that offered by international humanitarian law co-exist in situations of armed conflict ... In its judgment Armed Activities on the Territory of the Congo, the International Court of Justice observed, with reference to its advisory opinion concerning The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, that ‘[a]s regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law’ ... The Court must endeavour to interpret and apply the Convention in a manner which is consistent with the framework under international law delineated by the International Court of Justice.

103.  In the light of the above considerations, the Court accepts the Government’s argument that the lack of a formal derogation under Article 15 does not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in this case.

104.  Nonetheless, and consistently with the case-law of the International Court of Justice, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. ...

...

107.  Finally, although, for the reasons explained above, the Court does not consider it necessary for a formal derogation to be lodged, the provisions of Article 5 will be interpreted and applied in the light of the relevant provisions of international humanitarian law only where this is specifically pleaded by the respondent State. It is not for the Court to assume that a State intends to modify the commitments which it has undertaken by ratifying the Convention in the absence of a clear indication to that effect.”

2.    Methodology followed in the present case

94.  As indicated in Hassan (cited above, § 102), “the Court has made it clear on many occasions that the Convention must be interpreted in harmony with other rules of international law of which it forms part ... This applies no less to international humanitarian law.”

95.  In the present case the Court will thus examine the interrelation between the two legal regimes with regard to each aspect of the case and each Convention Article alleged to have been breached. In doing so, it will ascertain each time whether there is a conflict between the provisions of the Convention and the rules of international humanitarian law.

3.     Exhaustion of domestic remedies
   1.    The parties’ submissions
      1.    The applicant Government

96.  The applicant Government’s principal submission was that the rule on exhaustion of domestic remedies did not apply to inter-State applications whose object, as in the present case, was to determine the compatibility with the Convention of an administrative practice. Moreover, there was sufficient evidence of widespread and systematic violations and of official tolerance, as shown by the failure to carry out any prompt, independent and impartial investigations.

In the alternative, they submitted that the obvious and intentional failure of the Russian Federation to investigate allegations against Russian and South Ossetian military personnel demonstrated an official policy of impunity amounting to a barrier to effective redress. The mechanisms for seeking a remedy summarised in the Court’s admissibility decision at paragraphs 48 to 53 showed that there was no means by which an individual victim could submit a civil claim for compensation unless a criminal investigation had been instituted. While individual victims could, in principle, lodge a criminal complaint, there was no realistic prospect of such complaints being promptly and impartially investigated. As the Investigative Committee of the General Prosecutor’s Office of the Russian Federation had reacted with indifference to evidence of widespread and systematic crimes committed by the Russian and South Ossetian forces – despite these crimes having been brought to their attention – there could be no realistic prospect of the Russian authorities mounting effective criminal investigations into individual complaints. And without a criminal investigation there was no realistic prospect of an effective domestic remedy.

2.    The respondent Government

97.  The respondent Government drew the Court’s attention to the existence in the applicable law of the Russian Federation of effective remedies for violations of the provisions of the Convention complained of by the applicant Government in their application (paragraphs 48 to 53 of the admissibility decision). There was no evidence of any attempt by the alleged Georgian victims to avail themselves of these domestic remedies by lodging an application with the competent authorities or reporting an offence. With regard to the complaints received from various human rights organisations, the Investigative Committee of the General Prosecutor’s Office of the Russian Federation (“the Investigative Committee”) had carried out the requisite investigations. To that end the Investigative Committee had identified and interviewed more than 1,000 Russian military servicemen who had been involved in military operations in South Ossetia, together with a large number of residents of the villages in South Ossetia affected by the hostilities. The investigations had not disclosed any credible evidence showing illegal behaviour (including violations of IHL) by Russian military personnel in the course of the conflict. On the contrary, the evidence suggested that the allegations were unfounded. The Investigative Committee had even written to the Office of the Chief Prosecutor of Georgia to seek its help in investigating the allegations made by Georgia against Russian servicemen and had come up against a blanket refusal to provide any help whatsoever.

2.    The Court’s assessment

98.  The general principles were set out in Georgia v. Russia (I) (cited above):

“125.  With regard to the rule on exhaustion of domestic remedies, the Court reiterates that, according to its case-law in inter-State cases, the rule does not in principle apply where the applicant Government ‘complain of a practice as such, with the aim of preventing its continuation or recurrence, but does not ask ... the Court to give a decision on each of the cases put forward as proof or illustrations of that practice’ (see Ireland v. the United Kingdom, cited above, § 159). In any event, it does not apply ‘where an administrative practice, namely, a repetition of acts incompatible with the Convention, and official tolerance by the State, has been shown to exist and is of such a nature as to make proceedings futile or ineffective’ (see Ireland v. the United Kingdom, cited above, ibid.; Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996-IV; and Cyprus v. Turkey, cited above, § 99).

126.  However, the question of effectiveness and accessibility of domestic remedies may be regarded as additional evidence of whether or not such a practice exists (see, in particular, Cyprus v. Turkey, cited above, § 87).ˮ

99.  In the present case the Court also considers that the question of exhaustion of domestic remedies is closely linked to that of the existence of administrative practices as alleged by the applicant Government. It will therefore examine these questions jointly.

4.     Concept of “administrative practice”

100.  In their written submissions before the Grand Chamber, the applicant Government asked the Court “to determine the compatibility of the administrative practices outlined in §§ 87-258 of this Memorial with the provisions of the Convention. The individual violations are advanced by Georgia as illustrations of the administrative practices alleged. For the avoidance of doubt, Georgia is not inviting the Court to make findings in respect of each alleged violation. The object of the claim is to prevent the repetition of such practices by Russia, and (in the case of the violations of Article 5, Article 1 of Protocol 1, Article 2 of Protocol 1 and Article 2 of Protocol 4) to prevent the continuation of violations that are ongoing.”

101.  In the present case the Court is therefore called upon to examine whether or not there existed “administrative practices” incompatible with the Articles of the Convention allegedly breached, in accordance with the criteria established by it in its case-law and with the request made to this end by the applicant Government.

102.  It refers in this connection to the definition of the concept of “administrative practice” outlined in Georgia v. Russia (I) (cited above):

“122.  The Court reiterates that an administrative practice comprises two elements: the ‘repetition of acts’ and ‘official tolerance’ (see France, Norway, Denmark, Sweden and the Netherlands v. Turkey, nos. 9940-9944/82, Commission decision of 6 December 1983, Decisions and Reports 35, p. 163, § 19, and Cyprus v. Turkey, cited above, § 99).

123.  As to the ‘repetition of acts’, the Court describes these as ‘an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system’ (see Ireland v. the United Kingdom, cited above, § 159, and Cyprus v. Turkey, cited above, § 115).

124.  By ‘official tolerance’ is meant that illegal acts ‘are tolerated in the sense that the superiors of those immediately responsible, though cognisant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied’. To this latter element, the Commission added that ‘any action taken by the higher authority must be on a scale which is sufficient to put an end to the repetition of acts or to interrupt the pattern or system’ (see France, Norway, Denmark, Sweden and the Netherlands v. Turkey, cited above, pp. 163-64, § 19). In that connection, the Court has observed that ‘it is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice. Furthermore, under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected’ (see Ireland v. the United Kingdom, cited above, § 159).”

103.  However, it should be noted that while these criteria do define a general framework, they do not indicate the number of incidents required in order to be able to conclude that an administrative practice existed, which is a question left to the Court to assess having regard to the particular circumstances of each case.

104.  In the case of Ireland v. the United Kingdom (no. 5310/71, Commission’s report of 25 January 1976, Series B no. 23‑I, pp. 395-96) the Commission gave the following explanations:

“On the merits of an application the concept of a practice in breach of the Convention is not procedural but a relevant feature in the description of the breach involved. Although one single act contrary to the Convention is sufficient to establish a violation, it is [evident] that the violation can be regarded as being more serious if it is not simply one outstanding event but forms part of a number of similar events which might even form a pattern.

Again the level of tolerance is significant in this context insofar as it affects the seriousness of the violation involved: the higher the organ tolerating the acts the more serious is the violation involved. Finally, where repetition and official tolerance is combined, this would constitute an even more serious situation.

Consequently, the Commission’s primary concern in any case admitted under Art. 3 – and whether it is arising under Art. 24 [individual application] or Art. 25 [State application] does not matter – is whether or not the facts established disclose a violation of the Convention in respect of any individual. Where breaches of the Convention have been established in a number of individual cases this might amount to a practice in breach of the Convention with the consequence of rendering the fact that it has been violated more serious.”

4.   ACTIVE PHASE OF HOSTILITIES DURING THE FIVE‑DAY WAR (from 8 to 12 August 2008)

105.  The applicant Government submitted that the military operations (bombing, shelling, artillery fire) by the Russian armed forces and/or South Ossetian forces during the conflict had breached Article 2 of the Convention.

Jurisdiction

1.    The parties’ submissions[17]

106.  The applicant Government submitted that at the latest on the evening of 7 August 2008 Russian ground forces had entered Georgia through Abkhazia and the Tskhinvali Region/South Ossetia, and then moved into the adjacent areas situated in undisputed Georgian territory. They had been assisted by the Russian air force and the Black Sea fleet. Further, elements of the Russian army as well as hundreds of “volunteers” from the Russian North Caucasus had entered the Tskhinvali Region/South Ossetia from Russia through the Roki Tunnel. Lastly, between 8 and 12 August 2008 there had been more than 75 aerial attacks on Georgian territory by the Russian Federation. The bulk of the bombardments had occurred in the area around Eredvi in South Ossetia and around Tkviavi and Variani in the Gori District. During that time the town of Gori had been hit in a number of separate attacks.

107.  The respondent Government replied that this part of Georgia’s application had to fail for want of effective control or jurisdiction on the part of the Russian Federation. Plainly, in their submission, Russian forces would not have been shelling or bombarding areas that they already controlled with their own men. As in Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII), the act of bombarding or shelling did not constitute effective control over the area where the bombs or projectiles landed. On the contrary, armed conflict (in the specific aspect of military operations over contested ground) was the antithesis of effective control.

2.    Summary of the relevant evidence

108.  In its report (Volume II, pp. 215-17), the EU Fact-Finding Mission summarised the events in question as follows:

“The official Russian material submitted to the IIFFMCG in July 2009 holds that ‘On 8 August at 14.30 units of the 693rd and 135th Motorised Rifle Regiments of the 19th Motorised Rifle Division charged with the task of carrying out the peacekeeping mission entrusted to the Russian Federation and protecting Russian citizens were deployed from the territory of the Russian Federation to the territory of South Ossetia through the Roki tunnel and began to move into South Ossetia. The air force and artillery units launched strikes against Georgian military facilities to restrict movements of the enemy reserves, disrupt its communications, incapacitate base airfields, destroy warehouses and bases containing fuel and lubricants and to seal off the areas of hostilities.’

In addition to the two regiments of the 19th Motorised Rifle Division of the 58th Army referred to in the Russian information mentioned above, previous information provided to the IIFFMCG by the Russian authorities in mid-May 2009 stated that a number of other military units participated in the Russian operation on the eastern front (South Ossetia) including elements from the 42nd Motorised Rifle Division (from Chechnya), the 76th Assault Division (Pskov), the 98th Airborne Division (Ivanovo), the 20th Motorised Rifle Division (Volgograd), the 234th Assault Division, the 205th Separate Motorised Rifle Brigade, the 429th and 71st Motorised Rifle Regiments, the 104th Assault Regiment, the 331st Parachute Regiment and the 45th Special Purpose Regiment (Moscow district).

According to the Georgian official material submitted to the IIFFMCG the 33rd Motor Rifle Mountain Brigade (Dagestan), the 114th Rocket Brigade (Astrakhan district), the Separate Anti‑Aircraft Rocket Brigade (Volgograd) and the 10th Special Forces Brigade (Krasnodar district) also participated in the Russian operation on the eastern front.

Some experts assess that over 12,000 Russian troops were deployed on the eastern front, i.e. in South Ossetia and beyond, in the course of the August crisis.

Separately, elements from the 7th Assault (Mountain) Division (Novorossiysk), the 34th Rifle Mountain Brigade (Karachai-Cherkessia), the 31st Separate Assault Brigade (Ulianovsk), the 526th, 131st and 15th Separate Motorised Rifle Brigades as well as the 2nd, 108th and 247th Assault Regiments deployed in Abkhazia and beyond its administrative boundaries (Zugdidi, Senaki, Poti) and some of these troops may have taken part in the Russian operations on the western (second) front in Georgia.

According to some sources, Russia deployed up to 15,000 troops in Abkhazia in total. The overall number of Russian troops moved into Georgia in August 2008 amounted to 25,000–30,000 supported by more than 1,200 pieces of armour and heavy artillery. Also involved in the action were up to 200 aircraft and 40 helicopters. Several thousand armed Ossetians and volunteer militias from the North Caucasus supported the Russian forces on the eastern front as well as up to 10,000 Abkhaz troops and militia forces with armour and guns on the western front.

Russian air operations reportedly opened in the morning of 8 August with the first attacks targeting the Georgian air defence installations in the Gori district. Units employed during the armed conflict in August 2008 seemed to have come mainly from the 4th Air Forces and Air Defence Army (Rostov district) and included Su-24, Su-25, Su-27 and Su-29 aircraft as well as Mi-8 and Mi-24 helicopters.

The target set was focused on Georgian operational ground and air assets. Air defence radar sites and airbases were attacked, with regular repeat attacks against Marneuli, Vaziani and Bolnisi. These targets were well away from the main conflict zone. Hence, rather than to provide close air support to ground forces in contact, the Russian air raids seemed to be strategically intended to support a broader military objective, including to deprive the Georgian brigades engaged in South Ossetia of any support from second echelon forces, particularly air support. Given this primary objective, the targets also included port installations along the Black Sea coast, air traffic radar sites, aircraft manufacturing and maintenance plants. As the Georgian withdrawal continued, Russian efforts diverted to supporting Russian ground troops in order to accelerate Georgian withdrawal. In the course of the August hostilities, the Russian air force reportedly lost several aircraft, including one strategic bomber and reconnaissance aircraft Tu‑22M3.

The Russian Black Sea Fleet, deployed in Georgian territorial waters and/or in its vicinity reportedly consisted of around 13 vessels, including its flagship – guided missile cruiser ‘Moskva’ – as well as landing, antisubmarine and patrol ships, and minesweepers.

Russian military operations in Georgia in August 2008 appear to most analysts to have been well-planned and well-executed. The operational planning had been validated in practice during the ‘Kavkaz-2008’ military exercise (and previous similar exercises since 2005), which ended on 2 August 2008. After the exercise, some units returned to their garrisons, but others seem to have remained and deployed in a precautionary move near the Georgian border. Therefore, they could quickly move to South Ossetia through the Roki tunnel when ordered to do so.”

3.    The Court’s assessment

109.  The Court observes at the outset that in the context of the international armed conflict between Georgia and the Russian Federation in August 2008, the Russian armed forces undeniably carried out military operations, including in South Ossetia and in undisputed Georgian territory.

110.  It must first of all determine whether the events which occurred during the active phase of the hostilities fell within the jurisdiction of the Russian Federation and, accordingly, the nature of the control exercised by the latter during the above-mentioned military operations carried out by the Russian armed forces during the five-day war. As only two complaints, concerning the return of Georgian nationals and the right to education, concern Abkhazia as well and all the other complaints concern only South Ossetia and the “buffer zone”, the Court can confine itself during that period to examining whether the Russian Federation exercised its jurisdiction in the latter two territories.

111.  It should be pointed out that in its admissibility decision the Chamber indicated that “the present application concerns the impugned events that started in South Ossetia and in Abkhazia on 7 August 2008” (see Georgia v. Russia (II) (dec.), cited above, § 98). Furthermore, the question of the nature of the control exercised by the Russian Federation in South Ossetia before the start of the active phase of the hostilities is immaterial in the present case, given that the majority of the fighting took place in areas which were previously under Georgian control: ethnic Georgian villages around Tskhinvali in South Ossetia and the area of Gori, situated in the “buffer zone” in undisputed Georgian territory. The applicant Government themselves acknowledged in their observations that the Russian forces had taken effective control of the remaining parts of South Ossetia and the “buffer zone” during or immediately after the five-day war (see paragraph 78 above).

112.  The four “representative incidents” which the Court identified in the present case concerned the alleged air attacks on the village of Eredvi, situated precisely in the area of South Ossetia formerly under Georgian control, and on the town of Gori and the villages of Karbi and Tortiza, situated in undisputed Georgian territory (see paragraph 22 above).

1.    General principles established in the Court’s case-law concerning the concept of extraterritorial jurisdiction

113.  The present case marks the first time since the decision in Banković and Others (cited above, concerning the NATO bombing of the Radio‑Television Serbia headquarters in Belgrade) that the Court has been required to examine the question of jurisdiction in relation to military operations (armed attacks, bombing, shelling) in the context of an international armed conflict, the existence of which is not disputed by the parties.

114.  However, the Court’s case-law on the concept of extraterritorial jurisdiction has evolved since that decision, in that the Court has indicated, inter alia, that the rights under the Convention could be “divided and tailored” and has introduced a nuance into the concept of the Contracting States’ “legal space” (see Al-Skeini and Others, cited above, §§ 137 and 142). In addition, it has established a number of criteria for the exercise of extraterritorial jurisdiction by a State, which must remain exceptional (see Al-Skeini and Others, cited above, §§ 130-42; Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, §§ 178-90, 29 January 2019; and M.N. and Others v. Belgium (dec.) [GC], no. 3599/18, §§ 96-109, 5 May 2020).

115.  The two main criteria established by the Court in this regard are that of “effective control” by the State over an area (spatial concept of jurisdiction) and that of “State agent authority and control” over individuals (personal concept of jurisdiction) (see Al-Skeini and Others, cited above, §§ 133-40).

1.   “Effective control” by the State over an area

116.  The Court has reiterated the principles governing the application of this first criterion, for example in Catan and Others (cited above, §§ 106‑07), and also in Chiragov and Others v. Armenia ([GC], no. 13216/05, § 168, ECHR 2015) and Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, § 98, 23 February 2016):

“One exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001-IV; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; Loizidou (merits), cited above, § 52; and Al-Skeini and Others, cited above, § 138).

It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94, and Al-Skeini and Others, cited above, § 139).”

2.   “State agent authority and control”

117.  The Court has reiterated the principles governing the application of this second criterion, for example in Hassan (cited above, § 74) and Jaloud (cited above, § 139):

“In addition, the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan (cited above, § 91), the Court held that ‘directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory’. In Issa and Others (cited above), the Court indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in Northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In Al‑Saadoon and Mufdhi v. the United Kingdom ((dec.), no. 61498/08, §§ 86-89, 30 June 2009), the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev and Others v. France ([GC], no. 3394/03, § 67, ECHR 2010), the Court held that the applicants were within French jurisdiction by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.”

118.  In Al-Skeini and Others (cited above), a case concerning the death of individuals who had been fired upon by United Kingdom soldiers, the Court applied the same criterion, accompanied by the observation that the United Kingdom was exercising some of the public powers of a sovereign government:

“149.  It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the interim Iraqi government, the United Kingdom (together with the United States of America) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in south-east Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.”

119.  It made a similar finding in the Jaloud judgment (cited above), concerning the death of a person who had been fired upon while passing through a checkpoint under Netherlands command:

“152.  The Court now turns to the circumstances surrounding the death of Mr Azhar Sabah Jaloud. It notes that Mr Azhar Sabah Jaloud met his death when a vehicle in which he was a passenger was fired upon while passing through a checkpoint manned by personnel under the command and direct supervision of a Netherlands Royal Army officer. The checkpoint had been set up in the execution of SFIR [Stabilization Force in Iraq]’s mission, under United Nations Security Council Resolution 1483 ..., to restore conditions of stability and security conducive to the creation of an effective administration in the country. The Court is satisfied that the respondent Party exercised its ‘jurisdiction’ within the limits of its SFIR mission and for the purpose of asserting authority and control over persons passing through the checkpoint. That being the case, the Court finds that the death of Mr Azhar Sabah Jaloud occurred within the ‘jurisdiction’ of the Netherlands, as that expression is to be construed within the meaning of Article 1 of the Convention.”

120.  In other cases brought before it, the Court has examined whether the respondent State exercised

(a)  control over part of a territory, or over individuals, on account of extraterritorial military operations carried out by the armed forces (see, among other authorities, Issa and Others, cited above, §§ 72-81, where the Court concluded that there had been no control over the entire northern part of Iraq by the Turkish armed forces and no evidence regarding the conduct of military operations in the area where the lethal shots were fired), or

(b)  control over individuals on account of incursions and targeting of specific persons by the armed forces/police (see, inter alia, Isaak v. Turkey (dec.), no. 44587/98, 28 September 2006, in which the Court concluded that a person beaten to death by members of the Turkish and “Turkish Republic of Northern Cyprus” (“TRNC”) armed forces/police in the United Nations buffer zone in Cyprus had been under the authority and control of Turkey):

“In the present case, the Court must therefore ascertain whether Anastassios Isaak came under the authority and/or effective control, and therefore within the jurisdiction, of the respondent State as a result of the acts of the Turkish and ‘TRNC’ soldiers and/or officials. ...

In view of the above, even if the acts complained of took place in the neutral UN buffer zone, the Court considers that the deceased was under the authority and/or effective control of the respondent State through its agents (see Issa and Others, cited above). It concludes, accordingly, that the matters complained of in the present application fall within the ‘jurisdiction’ of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State’s responsibility under the Convention.”

121.  In the case of Pad and Others v. Turkey ((dec.), no. 60167/00, 28 June 2007), the Court found that the applicant’s relatives fell within Turkey’s jurisdiction as they had been killed by fire from helicopters of the Turkish army. It was unclear whether at the relevant time the deceased had been in Turkey or in Iran – and therefore outside the territorial jurisdiction of Turkey. Nonetheless, the Court held (ibid., § 54):

“However, in the instant case, it was not disputed by the parties that the victims of the alleged events came within the jurisdiction of Turkey. While the applicants attached great importance to the prior establishment of the exercise by Turkey of extraterritorial jurisdiction with a view to proving their allegations on the merits, the Court considers that it is not required to determine the exact location of the impugned events, given that the Government [have] already admitted that the fire discharged from the helicopters ... caused the killing of the applicants’ relatives ...”

122.  In two further cases (Andreou v. Turkey (dec.), no. 45653/99, 3 June 2008, and Solomou and Others v. Turkey, no. 36832/97, §§ 48-51, 24 June 2008), concerning deaths in the UN buffer zone in Cyprus, the Court also accepted that the victims fell within Turkey’s jurisdiction, since the individuals had been shot by members of the Turkish or “TRNC” armed forces/police. In Andreou (cited above) it held:

“Unlike the applicants in the Banković and Others case (cited above) [the applicant in this particular case] was accordingly within territory covered by the Convention.

In these circumstances, even though the applicant sustained her injuries in territory over which Turkey exercised no control, the opening of fire on the crowd from close range, which was the direct and immediate cause of those injuries, was such that the applicant must be regarded as ‘within [the] jurisdiction’ of Turkey within the meaning of Article 1 and that the responsibility of the respondent State under the Convention is in consequence engaged.”

123.  In Issa and Others (cited above) the Court had noted, inter alia:

“71.  Moreover, a State may also be held accountable for violation[s] of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State (see, mutatis mutandis, M. v. Denmark, application no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193; Illich Sanchez Ramirez v. France, application no. 28780/95, Commission decision of 24 June 1996, DR 86, p. 155; Coard et al. v. the United States, the Inter‑American Commission of Human Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively). Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (ibid.).”

124.  This approach, which was also followed in Isaak and Others (cited above), Pad and Others (cited above, § 53), Andreou (cited above) and Solomou and Others (cited above, § 45), refines and broadens the concept of extraterritorial jurisdiction. Subsequently, in Medvedyev and Others (cited above, § 64) the Court explicitly reiterated, with reference to the Banković and Others decision (cited above), that a State’s responsibility could not be engaged in respect of “an instantaneous extraterritorial act, as the provisions of Article 1 did not admit of a ‘cause and effect’ notion of ‘jurisdiction’”. More recently, it adopted a similar approach in M.N. and Others v. Belgium (cited above, § 112), finding that “the mere fact that decisions taken at national level had an impact on the situation of persons resident abroad is also not such as to establish the jurisdiction of the State concerned over those persons outside its territory”.

2.    Application of the above principles to the facts of the case

125.  In the present case the Court is required to examine whether the conditions applied by the Court in its case-law to determine the exercise of extraterritorial jurisdiction by a State may be regarded as fulfilled in respect of military operations carried out during an international armed conflict.

126.  In that connection it can be considered from the outset that in the event of military operations – including, for example, armed attacks, bombing or shelling – carried out during an international armed conflict, one cannot generally speak of “effective control” over an area. The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area. This is also true in the present case, given that the majority of the fighting took place in areas which were previously under Georgian control (see paragraph 111 above).

127.  It must therefore be determined in the present case whether there was “State agent authority and control” over individuals (the direct victims of the alleged violations) in accordance with the Court’s case-law, and what the precise scope of those terms is.

128.  In this connection, the Court reiterates first of all that acts of the Contracting States performed, or producing effects, outside their territory can only in exceptional circumstances amount to the exercise by them of their jurisdiction within the meaning of Article 1 (see Banković and Others, cited above, § 67; Al‑Skeini and Others, cited above, § 132; Güzelyurtlu and Others, cited above, § 178 in fine; and M.N. and Others v. Belgium, cited above, § 102).

129.  “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions attributable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Catan and Others, cited above, § 103, and the case-law cited therein; Güzelyurtlu and Others, cited above, § 178; and M.N. and Others v. Belgium, cited above, § 97).

130.  In most of the cases that it has examined since its decision in Banković and Others (cited above), the Court has found that the decisive factor in establishing “State agent authority and control” over individuals outside the State’s borders was the exercise of physical power and control over the persons in question (see Al-Skeini and Others, cited above, § 136 in fine, and M.N. and Others v. Belgium, cited above, § 105).

131.  Admittedly, in other cases concerning fire aimed by the armed forces/police of the States concerned, the Court has applied the concept of “State agent authority and control” over individuals to scenarios going beyond physical power and control exercised in the context of arrest or detention (see, for example, Issa and Others; Isaak and Others; Pad and Others; Andreou; and Solomou and Others, all cited above – see paragraphs 120-23 above).

132.  However, those cases concerned isolated and specific acts involving an element of proximity.

133.  By contrast, the active phase of hostilities which the Court is required to examine in the present case in the context of an international armed conflict is very different, as it concerns bombing and artillery shelling by Russian armed forces seeking to put the Georgian army hors de combat and to establish control over areas forming part of Georgia.

134.  The Court observes that in Banković and Others (cited above) it found that the wording of Article 1 of the Convention did not accommodate the theory that “anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby ‘brought within’ the ‘jurisdiction’ of that State for the purpose of Article 1 of the Convention” (ibid., § 75). It added that interpreting the concept of jurisdiction in that way was tantamount “to equat[ing] the determination of whether an individual falls within the jurisdiction of a Contracting State with the question of whether that person can be considered to be a victim of a violation of rights guaranteed by the Convention. These are separate and distinct admissibility conditions, each of which has to be satisfied in the aforementioned order, before an individual can invoke the Convention provisions against a Contracting State” (ibid., § 75 in fine).

135.  As indicated above (see paragraph 124), the Court adopted a similar approach in Medvedyev and Others (cited above, § 64) and M.N. and Others v. Belgium (cited above, § 112).

136.  The Court sees no reason to decide otherwise in the present case. The obligation which Article 1 imposes on the Contracting States to secure to everyone within their jurisdiction the rights and freedoms guaranteed by the Convention is, as indicated above, closely linked to the notion of “control”, whether it be “State agent authority and control” over individuals or “effective control” by a State over a territory.

137.  In this connection, the Court attaches decisive weight to the fact that the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos not only means that there is no “effective control” over an area as indicated above (see paragraph 126), but also excludes any form of “State agent authority and control” over individuals.

138.  The Court therefore considers that the conditions it has applied in its case-law to determine whether there was an exercise of extraterritorial jurisdiction by a State have not been met in respect of the military operations that it is required to examine in the instant case during the active phase of hostilities in the context of an international armed conflict.

139.  This conclusion is confirmed by the practice of the High Contracting Parties in not derogating under Article 15 of the Convention in situations where they have engaged in an international armed conflict outside their own territory. In the Court’s view, this may be interpreted as the High Contracting Parties considering that in such situations, they do not exercise jurisdiction within the meaning of Article 1 of the Convention, a position also defended by the respondent Government in the present case.

140.  That said, the Court is sensitive to the fact that such an interpretation of the notion of “jurisdiction” in Article 1 of the Convention may seem unsatisfactory to the alleged victims of acts and omissions by a respondent State during the active phase of hostilities in the context of an international armed conflict outside its territory but in the territory of another Contracting State, as well as to the State in whose territory the active hostilities take place.

141.  However, having regard in particular to the large number of alleged victims and contested incidents, the magnitude of the evidence produced, the difficulty in establishing the relevant circumstances and the fact that such situations are predominantly regulated by legal norms other than those of the Convention (specifically, international humanitarian law or the law of armed conflict), the Court considers that it is not in a position to develop its case-law beyond the understanding of the notion of “jurisdiction” as established to date.

142.  If, as in the present case, the Court is to be entrusted with the task of assessing acts of war and active hostilities in the context of an international armed conflict outside the territory of a respondent State, it must be for the Contracting Parties to provide the necessary legal basis for such a task.

143.  The Court reiterates in this connection that this does not mean that States can act outside any legal framework; as indicated above, they are obliged to comply with the very detailed rules of international humanitarian law in such a context.

144.  Having regard to all those factors, the Court concludes that the events which occurred during the active phase of the hostilities (8‑12 August 2008) did not fall within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention. Accordingly, this part of the application must be declared inadmissible, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

5.   OCCUPATION PHASE AFTER THE CESSATION OF HOSTILITIES (ceasefire agreement of 12 August 2008)

145.  The applicant Government submitted that killings, ill-treatment, looting and burning of homes had been carried out by the Russian armed forces and South Ossetian forces in South Ossetia and the adjacent “buffer zone”. Such acts had amounted to a violation of Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1.

1.     Jurisdiction

146.  The Court observes that although these complaints relate only to the events occurring in South Ossetia and the “buffer zone”, it will also examine whether the Russian Federation exercised “effective control” over Abkhazia after the cessation of hostilities, since this is a preliminary question in relation to the complaints under Article 2 of Protocol No. 4 and Article 2 of Protocol No. 1 (see paragraphs 292-95 and 312 below).

1.    The parties’ submissions
   1.    The applicant Government

147.  The applicant Government observed that after the hostilities had ceased the Russian Federation had exercised, and still exercised, effective control over South Ossetia by having recourse to the following means: military presence, appointment of Russian civil servants to key posts in government and administrations, both of which means were undisputed by the respondent Government, provision of funding, issuing Russian passports to South Ossetians and granting them free entry into Russia since 2000 while continuing to require visas from Georgians. In addition, the law of the Russian Federation had been applied to South Ossetia under bilateral agreements.

Furthermore, from the date of submission of their observations onwards the Russian Federation was still exercising effective control over the majority of South Ossetian territory. On 20 December 2014 the de facto authorities of South Ossetia had made public the draft of an “agreement” on alliance and integration with the Russian Federation[18], which provided for combining armed forces and security agencies and the unification of legislation in economic, social and cultural spheres.

Lastly, Russian civil servants continued to be appointed to key posts in the de facto administration after the conflict, including the posts of Prime Minister and Minister of Defence and other important posts in the government of South Ossetia.

148.  The applicant Government also submitted that, as in the case of South Ossetia, effective control by the Russian Federation in Abkhazia had been implemented and was still being implemented by its direct involvement in the de facto administration (particularly as key posts were held by Russian civil servants), the exercise of direct control over the armed forces through the appointment of commanders, the size of the military presence, the presence of military bases, the provision of essential financial support, investments in infrastructure, granting Russian citizenship and the opening of borders with the Russian Federation, the control of administrative borders and the application of Russian law in Abkhazian territory. On 24 November 2014 a military agreement on alliance and strategic partnership had been signed between Russia and the de facto regime of Abkhazia.

149.  Lastly, the applicant Government indicated that even after the end of the conflict the Russian Federation had continued deploying its troops in territories situated outside South Ossetia and Abkhazia (the “buffer zone”) and exercising effective authority and control there. The Russian forces had not fully withdrawn from Georgian territory; they had continued, inter alia, to occupy the village of Perevi until October 2010.

2.    The respondent Government

150.  The respondent Government replied that the Russian Federation had not exercised any effective control over South Ossetia since the active phase of the conflict, despite having maintained a significant military force there. After 12 August 2008 Russian troops had been mainly concerned with preventing further Georgian attacks. The situation in the conflict zone had not settled down until 20 August. On that day the Russian troops had unblocked the roads leading to Gori and withdrawn towards what became the “buffer zone”. By 22 August eighteen checkpoints had been created along the perimeter of this zone, eight of which were in the territory of Georgia, and ten along the “border” between Georgia and South Ossetia.

By 22 August the total number of Russian military personnel had reached 14,901. Equipment had comprised 119 tanks, 597 armoured fighting vehicles, 180 artillery systems and 94 air-defence systems. Of the military personnel deployed, only around 600 servicemen had been positioned in the “buffer zone”. The majority of Russian troops had been concentrated in South Ossetia as it had been difficult to determine from which direction Georgia might launch a further attack.

In their initial observations the respondent Government had indicated that “Russian forces had gradually withdrawn from the ‘buffer zone’ from 23 August, except for the 693rd motor rifle regiment which had continued to be stationed there for security reasons up until the creation of a joint military base with South Ossetia as explained below. That regiment had comprised 4,307 servicemen, 33 tanks, 220 fighting infantry vehicles, 30 artillery systems and 14 air-defence systems”. Its main function had been to stand in a high state of readiness to meet and detain any attack by Georgian forces.

Following a request by the Court of 7 July 2017 in that regard, the respondent Government submitted their reply on 29 September 2017 rectifying their previous observations. They indicated, among other things, that “Russian forces had gradually withdrawn towards the Russian Federation from 23 August, except for the 693rd motor rifle regiment which had continued to be stationed in South Ossetia for security reasons up until the creation of a joint military base with South Ossetia, as explained below. That regiment had comprised 4,307 servicemen, 33 tanks, 220 fighting infantry vehicles, 30 artillery systems and 14 air-defence systems”.

Furthermore, on 8 October 2008 the Russian checkpoints had also been withdrawn from the “buffer zone” (except for the village of Perevi) in accordance with the agreements reached between the French and Russian Presidents. By 10 October the Russian Federation had completed the withdrawal of its troops from South Ossetia, leaving behind only the 693rd motor rifle regiment referred to above.

After the Agreement on the joint Russian military base in South Ossetia had been signed between the Russian Federation and the Republic of South Ossetia on 7 April 2010, military base no. 4 had been formed in South Ossetia. It had held 3,285 servicemen and had 305 items of military equipment. In accordance with the agreement referred to above, the personnel of the military base and its contractors were required to obey South Ossetian laws and to abstain from any interference in the internal affairs of South Ossetia.

The respondent Government added that the general support of the Russian Federation was used in accordance with the agreements with South Ossetia to ensure basic welfare standards of the South Ossetian population. It was incumbent upon Georgia to show a real link between the alleged violations and any Russian support measures, but it was submitted that no such link could possibly exist, because all support was provided for humanitarian reasons and to ensure the security of the local population. As mentioned above, such support could only help to promote law and order and hopefully assist the secure return of all refugees once a proper political solution was found between Georgia and South Ossetia. In 2008, pursuant to the decisions of the President and the government of the Russian Federation, the Emergency Situations Ministry (EMERCOM) had put in place a raft of measures to rebuild South Ossetia which had been severely affected by the Georgian aggression.

Lastly, the Russian Federation had not exercised “physical power and control” over any of the alleged victims of breaches of the Convention in South Ossetia since 12 August 2008.

151.  The respondent Government also submitted that the Russian Federation had not exercised any effective control over Abkhazia since the end of the armed conflict. On the contrary, Abkhazia had a vigorous and independent government which decided its own affairs. On 17 February 2010 the Russian Federation and Abkhazia had signed a treaty allowing the Russian Federation to position a military base in Abkhazia. Military base no. 7 had been established in Abkhazia under this treaty with 3,923 servicemen and 873 items of military equipment. The Agreement related to the establishment of this military base specifically provided that all personnel of the military base and its contractors had to comply with Abkhazian laws and abstain from any interference with the internal affairs of Abkhazia.

The Russian Federation did not exercise control over the “borders” of Abkhazia. In accordance with the cooperation agreement on “border” controls between the Republic of Abkhazia and the Russian Federation (in force since 21 June 2010), Russia had assisted the Abkhazian government by providing certain infrastructure and personnel to support its “border” checks conducted on the basis of Abkhazian law. The Russian servicemen in Abkhazia obeyed local laws and did not exercise Russian sovereign jurisdiction there.

As to financial and other support for Abkhazia, this was similar to that provided to South Ossetia except that there were no gas supplies to Abkhazia.

The Russian Federation had also provided non-monetary support through its Emergency Situations Ministry. Lastly, the Russian Federation had not exercised “physical power and control” over any of the alleged victims of breaches of the Convention in Abkhazia since 12 August 2008.

152.  The respondent Government added that the Russian Federation had not exercised effective control over the town of Gori between 12 and 22 August 2008. More particularly, 12 August 2008 had been a time of transition between Georgian and Russian military control. Russian forces had been predominantly stationed outside the town of Gori and, as explained above, in the period between 12 and 22 August, Russian troops had only blocked the main roads leading to the city to enable safe operations at several military bases in the vicinity of the city. Around 300 personnel and about 30 items of military equipment had been deployed around Gori. In parallel Russian forces had sought to consolidate their military position by forming checkpoints along the front line. However, those measures had not given them effective control over the “buffer zone” in the sense of being able to prevent alleged human rights abuses by South Ossetians against Georgians throughout the security zone. Rather, the Russian forces at the checkpoints had had the function of warning about and detaining any advance by the Georgian forces pending a decisive response by Russian forces kept in readiness further back.

Moreover, after 2 September 2008 the Russian Federation had not exercised effective control over any part of the “buffer zone” in the sense of being able to prevent alleged human rights abuses by South Ossetians against Georgians for the reasons explained above (only a small number of troops had been deployed at observation posts along the perimeter of the zone).

The function of Russian military posts in the security zone had been to prevent further aggression by Georgia, to prevent the Georgian forces from regaining control over their military bases and arms storage facilities in the security zone as well as to protect Russian military infrastructure. When the “buffer zone” had been established on 22 August the Russian servicemen had been deployed there (mostly along the perimeter) to provide security by preventing the return of Georgian military forces or destabilising elements into the “buffer zone”. They had also been engaged in mine-clearing operations.

The numbers of Russian military personnel in the “buffer zone” had been in the region of 600 (see above). All military personnel and equipment had been withdrawn from the regions of Georgia bordering South Ossetia and Abkhazia by 9 October 2008 (except for the village of Perevi).

Lastly, the Russian Federation had not exercised “physical power and control” over any victim of the alleged breaches of the Convention in the “buffer zone” after 12 August 2008.

2.    Summary of the relevant evidence
   1.    Russian military presence

153.  Report of the EU Fact-Finding Mission[19] (Volume I, pp. 21-22):

“17.  ... Finally, by the night of 10 to 11 August, most of the Georgian forces had withdrawn from the territory of South Ossetia. They were followed by Russian troops who entered deeper into Georgian territory by crossing the administrative boundaries of both South Ossetia and Abkhazia and set up military positions in a number of Georgian towns, including Gori, Zugdidi, Senaki and Poti. During the final phase of military hostilities, Abkhaz units supported by Russian forces attacked the Georgian positions in the upper Kodori Valley and seized this territory, which had been vacated by the Georgian forces and most of the local Georgian population by 12 August 2008.

18.  ... On 12 August, French President Nicolas Sarkozy, in his capacity as Chairman of the European Council, went to Moscow and Tbilisi in a move to stop the military hostilities. A six‑point ceasefire plan was agreed upon, providing, inter alia, for the immediate cessation of hostilities and withdrawal of forces to the positions occupied prior to the armed conflict. However, the Russian and South Ossetian forces reportedly continued their advances for some days after the August ceasefire was declared and occupied additional territories, including the Akhalgori district which had been under Georgian administration until the August 2008 conflict, even if it is located within the administrative boundaries of South Ossetia as they had been drawn during the Soviet period. Most of the Russian troops withdrew from their positions beyond the administrative boundaries of South Ossetia and Abkhazia after 22 August, some of them only after an implementation agreement was reached on 8 September 2008 in Moscow or even as late as early October 2008. ...”

154.  Human Rights Watch report, “Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia”, 22 January 2009:

“3.7  Russia’s Responsibility as Occupying Power (pp. 123 et seq.)

When Russian forces entered Georgia, including South Ossetia and Abkhazia, which are de jure parts of Georgia, they did so without the consent or agreement of Georgia. International humanitarian law on occupation therefore applied to Russia as an occupying power as it gained effective control over areas of Georgian territory (see above, Chapter 1.2). Tskhinvali and the rest of South Ossetia must be considered under Russian control from August 10, when Georgian forces officially retreated, through the present. Villages in Gori district fell under Russian control as Russian forces moved through them on August 12. Gori city must be considered under effective Russian control at least from August 12 or 13 until August 22, when Russian troops pulled back further north toward South Ossetia. Russia’s occupation of the area adjacent to South Ossetia ended when its forces withdrew to the South Ossetia administrative border on October 10.”

155.  Amnesty International report, “Civilians in the line of fire: the Georgia-Russia conflict”, November 2008: in its report (p. 10) Amnesty International observed that even after the ceasefire had been brokered the Russian Federation continued deploying troops on territories situated outside South Ossetia and Abkhazia. The relevant passage of the report reads as follows: “Russian armed forces continued to retain control over so‑called ‘buffer’ or ‘security zones’ extending beyond the 1990 boundaries of South Ossetia and Abkhazia until the second week of October” (p. 29).

2.    Russian Federation’s relationship with South Ossetia and Abkhazia

156.  The report by the EU Fact-Finding Mission describes the Russian Federation’s relationship with South Ossetia and with Abkhazia – and in particular with the South Ossetian and Abkhazian security forces – as follows:

1  Prior to the armed conflict (Volume II, pp. 18-19 and 127-35):

“‘Creeping annexation’

Georgia’s objection to the dominant Russian role in the peacekeeping operation in its conflict zones was motivated mainly by the perception that Russia’s contribution to conflict management in the South Caucasus was not ‘peacekeeping, but keeping in pieces’. Russia was seen as the protagonist responsible for keeping the conflicts in the region frozen, in order to maintain a ‘controllable instability’ for the purposes of its own power projection in the South Caucasus. Moreover, Russia was promoting progressive annexation of Abkhazia and South Ossetia by integrating these territories into its economic, legal and security space. The open annexation of these territories was blocked by several obstacles, ranging from Russia’s military conflict in Chechnya to its interest in avoiding a massive confrontation with the West.

The clearest demonstration of this Russian policy of integrating separatist entities of neighbouring states into its own legal jurisdiction was ‘passportisation’, the awarding of Russian passports and citizenship of the Russian Federation to residents of Abkhazia and South Ossetia.

In this context, in 2007 Russia paid residents of Abkhazia a total of 590 million rubles in the form of pensions and allocated 100 million rubles to South Ossetia, where the overwhelming majority of the non-Georgian population were already holders of Russian passports.

According to commentaries by Russian political analysts, Moscow was using economic means ‘to try to caution Georgia against attempts to take back the unrecognised republics by force’.

Another aspect of ‘creeping annexation’ was the fact that the separatist governments and security forces were manned by Russian officials. Russia appointed its former civilian and military leaders to serve in key posts in Abkhazia and especially in South Ossetia, including the de facto Defence Ministers of Abkhazia (Sultan Sosnaliev) and South Ossetia (Anatoly Barankevich) and the de facto Chief of the Abkhaz General Staff (LtGen Gennadi Zaytsev). Russian journalist Julia Latynina once described the power elite in South Ossetia as a joint business venture between KGB generals and Ossetian entrepreneurs using money allocated by Moscow for the fight against Georgia.

...

3.  Effective government

...

a)  South Ossetia

South Ossetia had already established a new constitutional order in 1993, and in a revised form in 2001 with executive, legislative and judicial branches. Nevertheless, there are many doubts as to the effectiveness and independence of the system.

First, as the majority of people living in South Ossetia have acquired Russian citizenship, Russia can claim personal jurisdiction over them ... From the point of view of Russian constitutional law, the legal position of Russian citizens living in South Ossetia is basically the same as the legal position of Russian citizens living in Russia.

Second – and still more importantly – Russian officials already had de facto control over South Ossetia’s institutions before the outbreak of the armed conflict, and especially over the security institutions and security forces. The de facto Government and the ‘Ministries of Defence’, ‘Internal Affairs’ and ‘Civil Defence and Emergency Situations’, the ‘State Security Committee’, the ‘State Border Protection Services’, the ‘Presidential Administration’ – among others – have been largely staffed by Russian representatives or South Ossetians with Russian citizenship that have worked previously in equivalent positions in Central Russia or in North Ossetia. According to the South Ossetian Constitution, these officials are directly responsible to the de facto President of South Ossetia as ‘head of state’ and of the executive branch (Art. 47 para. 1 of the Constitution). Still, despite this constitutional accountability, the fact that the decisive positions within the security structures of South Ossetia were occupied by Russian representatives, or by South Ossetians who had built their careers in Russia, meant that South Ossetia would hardly have implemented policies contrary to Russia’s interests.

De facto control of South Ossetia was gradually built up by Moscow. Russian representatives were not as present within the South Ossetian leadership before summer 2004. Thus the process of state-building was not gradually stabilised after South Ossetia’s declaration of independence in 1992, but suffered setbacks after 2004. Even if South Ossetia was not formally dependent on any other state, Russian foreign influence on decision-making in the sensitive area of security issues was so decisive that South Ossetia’s claim to independence could be called into question.

To sum up, Russia’s influence on and control of the decision-making process in South Ossetia concerned a wide range of matters with regard to the internal and external relations of the entity. The influence was systematic, and exercised on a permanent basis. Therefore the de facto Government of South Ossetia was not ‘effective’ on its own.

b)  Abkhazia

The effective control of the Abkhaz authorities over the relevant territory and its residents is problematic, because many inhabitants had acquired Russian citizenship and were – from the Russian perspective – under the personal jurisdiction of the Russian Federation. According to the information given by the Abkhaz authorities ‘practically all the inhabitants of Abkhazia are at the same time citizens of the Russian Federation.’ Russian passport-holders participated massively in presidential and parliamentary elections in Russia.

Russia’s control over Abkhazia’s security institutions seems to be less extensive than in South Ossetia. Contrary to the situation in South Ossetia, the will to remain independent from Russia has traditionally remained strong among the elites and Abkhaz public opinion. In the ‘presidential elections’ of 2004/05, for instance, Moscow had to acknowledge the defeat of the candidate whom it had openly supported (Raul Khadjimba) and had to accept the victory of Sergei Bagapsh. This means that the Abkhaz institutions were – at least at that particular moment – not completely under control of the Russian Government.

II.  Conclusion

From the perspective of international law, South Ossetia was, at the time of the military conflict in 2008, an entity that had a territory, a population and a government acting on a newly established constitutional basis. But all usual criteria for statehood (in legal and in political terms) are gradual ones. Especially the third criterion, effectiveness was not sufficiently present in the case of South Ossetia, as domestic policy was largely influenced by Russian representatives from ‘within’.

Thus, South Ossetia came close to statehood without quite reaching the threshold of effectiveness. It was – from the perspective of international law – thus not a state-like entity, but only an entity short of statehood.

The status of Abkhazia is slightly different. Contrary to South Ossetia, the Abkhaz ‘government’ has expressed its clear will to remain independent from Russia, even if its policies and structures, particularly its security and defence institutions, remain to a large extent under control of Moscow. Abkhazia is more advanced than South Ossetia in the process of state-building and might be seen to have reached the threshold of effectiveness. It may therefore be qualified as a state-like entity. However, it needs to be stressed that the Abkhaz and South Ossetian claims to legitimacy are undermined by the fact that a major ethnic group (i.e. the Georgians) were expelled from these territories and are still not allowed to return, in accordance with international standards.”

2.  During the armed conflict (Volume II, pp. 303-04):

“The statements made by the Russian Federation and the de facto Abkhaz authorities reject any allegation of overall control. The Russian Federation has declared that ‘prior to the conflict in August one could only speak of cooperation between the Russian peacekeeping contingent and South Ossetian and Abkhaz military units wherever peacekeeping forces may be present within parameters commonly accepted in similar situations in other countries. These relations were governed by the mandate of the peacekeeping force. While strong economic, cultural and social ties exist between the Russian Federation and the authorities of Abkhazia, those authorities have stated that, in the course of the operation in the Kodori Valley, ‘the Abkhaz army, while remaining in contact with Russian forces acting from Abkhaz territory, operated independently.’ Further aspects of the assistance and the military structure and command linking the Russian Federation and those entities would need to be substantiated in order to establish such control. According to Georgia, ‘the Abkhaz and South Ossetian military formations did not independently control, direct or implement the military operations during either the armed conflict or the occupation periods. Rather, these military formations acted as agents or de facto organs of the Respondent State and as such constituted a simple continuation of the Russian Federation’s armed forces.’

In factual terms, one may have to draw a distinction with regard to the nature of the relationship between Russia and South Ossetia on the one hand, and between Russia and Abkhazia on the other. In the former, ties seem to be stronger. During the meeting between the IIFFMCG experts and the representatives of the Ministry of Internal Affairs of Georgia, the representatives stressed the political and economic links between Russia and South Ossetia. They also claimed that Russia exercises control over South Ossetia through various channels ranging from financial help to the presence of Russian officials in key military positions in the South Ossetian forces.”

3.  After cessation of the active conduct of hostilities (Volume II, pp. 311 et seq.):

“c)  IHL of military occupation

... However, the extent of the control and authority exercised by Russian forces may differ from one geographical area to another. It was possibly looser in the territories of South Ossetia and Abkhazia administered by the de facto authorities. In the Kodori Valley, and in districts and villages in South Ossetia such as Akhalgori, where before the conflict the Georgian forces and administration had exercised control, the substitution is more evident. In those cases, such as the buffer zones, the argument of an existing administrative authority different from the Georgian one cannot be admissible, nor can the argument according to which ‘Russia has frequently dissociated itself from, and even condemned, the Ossetian and Abkhaz authorities.’ Regarding the insufficient number of troops invoked by the Russian Federation, this must be linked to the fact that the determination is not about ascertaining the occupation of the whole territory of Georgia. Moreover, in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) case, the arguments used by Uganda of a ‘small number of its troops in the territory’ and their confinement to ‘designated strategic locations’ were not used by the Court to reject the qualification of occupation. Finally, given the fact that a state of occupation may exist without armed resistance, the question of the number of troops cannot in itself be legally relevant.

...

h)  Maintenance of law and order

Under the IHL on military occupation the occupying power, once it has authority over a territory, has an obligation to take all the measures in its power to restore, and ensure, as far as possible, public order and safety. Ensuring safety includes protecting individuals from reprisals and revenge. There is also an obligation to respect private property.

Even where the law on occupation is not applicable, under HRL states have an obligation to protect persons under their jurisdiction and prevent violations against them.

In the context of the conflict in Georgia the issue of the maintenance of law and order, and consequently that of the authorities responsible for such maintenance, is critical for several reasons. First, control over certain areas changed during the period of the conflict and its aftermath: in South Ossetia, in villages or districts that had previously been administered by the Georgian authorities, and also in the buffer zones and in Abkhazia, in the Kodori Valley. But it is also relevant for those parts of South Ossetia and Abkhazia where the de facto authorities had been exercising control before the outbreak of the conflict. Secondly, the presence of Russian forces on those territories raises the issue of their responsibilities, whether under the law of occupation or under human rights law. Thirdly, numerous, if not most, violations occurred after the conflict, at a time when the main question was actually one of policing and maintaining order to prevent or stop such violations. Apart from the question of identifying who had responsibility for maintaining public order and ensuring security, there has clearly been, with some exceptions, a vacuum in this regard.

One of the most worrying areas was the buffer zone. The Representative of the Secretary-General on the human rights of internally displaced persons reported that ‘during his visit to the so-called buffer zone, he witnessed evidence of widespread looting of property and listened to villagers reporting incidents of harassment and violent threats committed by armed elements, in tandem with a failure by Russian forces to respond and carry out their duty to protect, particularly in the northernmost area adjacent to the de facto border with the Tskhinvali region/South Ossetia. Villagers explained their permanent fear of attack by what they described as armed bandits coming from the Tskhinvali region/South Ossetia, and their repeated but unsuccessful requests to the Russian forces for protection. Villagers insisted that there were no problems between neighbours within the same villages, irrespective of their ethnic origins, but that the perpetrators were coming from outside the villages, i.e. the Tskhinvali region/South Ossetia.’ In September 2008 the Council of Europe Commissioner for Human Rights also noted that ‘in the northern part – i.e. the area adjacent to the administrative border of South Ossetia – there are still reports of looting, torching and threats, and far fewer people have been able to return.’ Following his special mission to Georgia and the Russian Federation on 22-29 August 2008, the Council of Europe Commissioner for Human Rights stressed the ‘right to protection against lawlessness and inter-community violence.’ He noted that he had ‘received a great number of reports of physical assault, robbery, kidnapping for ransom, looting and torching of houses as well as personal harassment by South Ossetian militia or other armed men in the Georgian villages in South Ossetia and in the “buffer zone”.’ He further stated that he ‘was alarmed over the rampant criminality in the “buffer zone”.’

While denying the status of occupying power, the Russian Federation acknowledged that it had tried to exercise police powers on the ground. With regard to ‘measures taken outside the scope of hostilities to protect the civilian population from looting, pillaging, abuse etc.,’ it describes the situation as follows. In terms of ‘a police function’:

‘South Ossetia had and still has its own government and local authorities which exercise effective control in this country, maintain the rule of law and protect human rights. At the same time, the Russian military contingent called upon to carry out purely military tasks in the territory of South Ossetia, to the best of their abilities tried to maintain law and order and prevent any offences in the areas of their deployment, including Georgia proper, where owing to the flight of Georgian government authorities an apparent vacuum of police presence ensued. The Russian military force could not substitute for the government of South Ossetia. The Russian military have never been granted the jurisdiction to maintain the rule of law, not to mention that their sheer numbers are insufficient for that task. Nevertheless, the Russian troops apprehended more than 250 persons on suspicion of looting and other crimes. All of them have been handed over to the authorities of South Ossetia for further investigation and criminal prosecution.’

This argument of relying on the South Ossetian de facto authorities to maintain public order and prevent violations of human rights is flawed, however. In the first place, these authorities failed to ensure the protection or safety of persons living on the territory they controlled, as demonstrated above. This is additionally proven by the fact that even Ossetians did not enjoy protection. One of the two remaining residents of Zonkar, a tiny Tskhinvali-administered hamlet in the Patara Liakhvi valley surrounded by ethnic Georgian villages, told Human Rights Watch how men dressed in Ossetian peacekeeper uniforms looted her house and tried to set fire to it. She said that although she reported the incident to the police, no officials from the South Ossetia prosecutor’s office came to her house to investigate. Even more worrying, however, is the fact that Ossetian forces were themselves among the main perpetrators of violations of human rights.

Furthermore, the position adopted by the Russian Federation is not admissible in the buffer zone, where the South Ossetian de facto authorities were not exercising control.

Another aspect of the Russian argumentation calls for further analysis. Russia claims that although it was not an occupying power, ‘the Russian military contingent called upon to carry out purely military tasks in the territory of South Ossetia, to the best of their abilities tried to maintain law and order and prevent any offences in the areas of their deployment including Georgia proper, where owing to the flight of Georgian government authorities an apparent vacuum of police presence ensued.’ First, it recognises the absence of policing by Georgian authorities. Second and most importantly it clearly states that effectively the Russian forces, to a certain extent, were trying to maintain order and safety. Russia elaborated further on the actions it carried out in this regard:

‘From day one of the operation, the Russian military command undertook exhaustive measures to prevent pillaging, looting and acts of lawlessness with respect to the local Georgian population. All personnel serving in units that took part in the operation was familiarised with the Directive issued by the General Staff of the Russian Armed Forces and the order given by the Army Commander-in-Chief “to maintain public safety and ensure the security and protection of citizens residing in the territory of the South Ossetian Republic”.

Russian troops, jointly with South Ossetian law-enforcement and military units, provided round-the-clock protection of the homes and land allotments that remained undamaged in Georgian villages, at the same time ensuring the safety and security of South Ossetian residents regardless of their ethnic background.’

First of all, this contradicts the information according to which ‘in October an official from the Council of Europe who requested anonymity told Human Rights Watch that a senior member of the Russian military in the region said that the military was given no mandate for the protection of civilians.’

In general, these elements demonstrate that to a certain degree, Russian forces were in a position to ensure public order and safety in the territories they were stationed in, and claim to have undertaken measures in this regard. This contrasts strikingly with what happened on the ground, where there was a serious lack of action by the Russian troops to prevent violations and protect ethnic Georgians.

One of the main measures taken by Russian troops was to set up roadblocks and checkpoints. Regarding South Ossetia, Human Rights Watch noted that ‘roadblocks set up by Russian forces on August 13 effectively stopped the looting and torching campaign by Ossetian forces, but the roadblocks were inexplicably removed after just a week.

As reported by HRW, two residents of Tkviavi, a village 12 kilometres south of Tskhinvali that was particularly hard hit by looters from South Ossetia, said that the looting had decreased when the Russian forces maintained a checkpoint in the village, although the marauders kept coming during the night. Furthermore, several Tkviavi villagers told Human Rights Watch that they believed that more frequent patrolling by the Russian forces or Georgian police would have improved security in the area. A witness told Human Rights Watch that looters ‘seemed to be afraid to encounter the Russians, and were hiding from them, suggesting, according to HRW, that had Russian forces taken more preventive measures to stop violence against civilians these measures would have been effective.

In this regard, other measures by the Russian troops consisted of patrolling and informing the inhabitants and giving the villagers phone numbers so they could contact the Russian military authorities if they witnessed any kind of violation. Regarding these measures, an [in]habitant of Tkviavi, the former mayor of the village, told the IIFFMCG expert on 3 June that while having offered to help, the Russian military authorities did not do much concretely to stop the looting.

At this stage it is critical to note that the measures such as checkpoints introduced by the Russian forces were meant to prevent violations by South Ossetian militias, and consequently ensure respect of IHL. Oddly, one result of the checkpoints was actually to prevent the Georgian police from maintaining law and order in those areas, and in some cases to stop villagers attempting to return home from Gori to villages in the ‘buffer zone’, while Russia continued to invoke the lawlessness.

On the other hand, testimonies gathered by the IIFFMCG and by HRW also report Russian ground forces trying to protect the civilian population from Ossetian forces, militia members, or criminal elements.

Nevertheless, from all the testimonies collected, it appears that the Russian authorities did not take the necessary measures to prevent or stop the widespread campaign of looting, burning and other serious violations committed after the ceasefire.

Referring to the situation at the end of August, the Council of Europe Commissioner for Human Rights also stressed that ‘the Russian forces have the duty under international humanitarian law to maintain law and order in the zone they control,’ and he ‘raised his serious concerns about the security of the civilians with all sides.’ He noted that the Russian head of the peacekeeping presence in the buffer zone and other high-level Russian officials ‘acknowledged that policing and maintaining law and order were major challenges. According to them, the area had been infiltrated by marauders, criminal gangs and militia, who were committing serious crimes.’

In September 2008, as a way to address this failure to maintain law and order properly, Human Rights Watch called for the EU to provide the monitoring mission scheduled to move into areas near South Ossetia with a policing mandate to protect the civilians.”

157.  At a press conference held on 26 August 2009, that is, a year after recognition by the Russian Federation of South Ossetia’s and Abkhazia’s independence, the Russian Prime Minister Vladimir Putin made the following statement (extracts):

“Exactly a year ago, on August 26, Russia recognised the independence of South Ossetia and Abkhazia. In this difficult time, immediately after the aggression staged by the current Georgian leaders, the decision of our country served as a firm guarantee for peace in the region, and the survival of the two nations.

It goes without saying that there will be no return to the past situation. The sooner all parties involved in this process realise this, the easier it will be for them to build a joint future.

Much has been done since then for developing full-scale relations between Russia and South Ossetia and for consolidating their legal foundation. In September 2008, we signed a Treaty on Friendship, Cooperation, and Mutual Assistance, and last April, the Agreement on Cooperation in the Protection of South Ossetia’s State Frontier. The Russian border guards have assumed responsibility for securing peace and tranquillity in the region.

More than thirty agreements and treaties – all in all, thirty-six agreements – are being discussed today. They are designed to consolidate the legal foundation of our cooperation in all areas – security, the economy, and the social sphere.

...

We have also signed an agreement on assistance to South Ossetia in its social and economic development, and an agreement on countering crime. Russia is going to continue rendering all-round political and economic support both to South Ossetia and Abkhazia.

...”

158.  With regard to the situation in South Ossetia, the relevant passages of the report by the International Crisis Group, “South Ossetia: The Burden of Recognition”, 7 June 2010, read as follows:

“South Ossetia is no closer to genuine independence now than in August 2008, when Russia went to war with Georgia and extended recognition. The small, rural territory lacks even true political, economic or military autonomy. Moscow staffs over half the government, donates 99 per cent of the budget and provides security.

...

The war dealt a heavy physical, economic, demographic and political blow to South Ossetia. The permanent population had been shrinking since the early 1990s and now is unlikely to be much more than 30,000. The $840 million Russia has contributed in rehabilitation assistance and budgetary support has not significantly improved local conditions. With its traditional trading routes to the rest of Georgia closed, the small Ossetian economy has been reduced to little more than a service provider for the Russian military and construction personnel. Other than the International Committee of the Red Cross (ICRC), no international humanitarian, development or monitoring organisation operates in the region; dependent on a single unreliable road to Russia, the inhabitants are isolated.

...

While Russia controls decision-making in several key spheres, such as the border, public order and external relations, it has allowed South Ossetian elites a degree of manoeuvre on such internal matters as rehabilitation, reconstruction, education and local justice.

...

Military-security decisions are delegated to Russia through bilateral agreements. A day after President Medvedev signed the September 2008 ceasefire with President Sarkozy of France (then the EU presidency) to withdraw from Georgia, the Russian defence minister made it clear that Moscow intended to deploy 3,800 troops in the breakaway entities. A year later, as noted, military cooperation agreements provided authority to station troops and maintain military bases in South Ossetia for 49 years, as well as jointly protect the borders, for renewable five-year periods.

...

Moscow has deployed an estimated 900 border troops along South Ossetia’s administrative boundary with the rest of Georgia, replacing Ossetian security forces. On request from the de facto authorities, Russian experts are currently helping to demarcate the ‘state borders’, despite strong Georgian protests. Twenty frontier posts that are being built, not least to monitor Georgian military communications and movements, are expected to be completed by 2011.

...

In September 2008, when its troops still occupied the Georgian ‘buffer zone’, adjacent to South Ossetia and Abkhazia, Russia signed agreements of ‘Friendship and Cooperation’ with both breakaway regions, pledging to help protect their borders. The signatories granted each other the right to military bases in their respective territories, recognised dual citizenship and established common transportation, energy and communications infrastructure. The agreements are valid for ten years and can be renewed every five. Thus, Russia has consolidated its military presence in both regions, instead of withdrawing forces to pre-conflict positions as stipulated by the Medvedev-Sarkozy agreement. It says recognition has brought a ‘new reality’, so ‘bilateral’ cooperation accords take precedence over the ceasefire accord.

...

However, Russia has played a crucial role in providing support for state and institution building in South Ossetia. Most of the ruling elite, including the prime minister, vice prime minister and ministers of defence, economic development and finance, have been transferred from Russia and are under its control. Security and military structures have been controlled by senior officers of the Federal Security Forces (FSB) for many years. A Russian journalist described even pre-war South Ossetia as a joint business venture between FSB generals and Ossetian entrepreneurs using money allocated by Moscow for the competition with Georgia. This has not changed; the current defence minister, Major-General Yuri Tanaev, was previously head of an intelligence department of the Urals military district. Russia’s influence over external relations and security is so decisive it arguably undermines the claim to independence.

Nevertheless, Eduard Kokoity, the de facto president, does appear to maintain limited control in certain spheres of internal politics. Russian analysts compare this to Chechnya, where President Kadyrov has been given a virtually free hand in internal affairs as long as he maintains stability and remains loyal to Moscow. Kokoity has been able to concentrate internal power and control over the entity’s limited print and electronic media. Criticism of local officials, and particularly Russia’s policy, is portrayed by the authorities as pro-Georgian ‘treason’.”

159.  With regard to the situation in Abkhazia, the relevant passages from the report by the International Crisis Group, “Abkhazia: The Long Road to Reconciliation”, 10 April 2013, read as follows:

“...

The 2008 war with Georgia allowed Russia to greatly enhance its already considerable military presence. Russian officials say there are roughly 5,000 Russian personnel in Abkhazia: 3,500 military and 1,500 Federal Security Service (FSB) officers and ‘border guards’.

...

At the same time, given its control over Abkhazia’s ‘borders’, roads and sea, Russia need not maintain a heavy permanent presence, as it can move military equipment and troops into and out of the entity at will.

...

In a further show that Moscow is in control, Russian border guards in September 2012 began manning the lone open checkpoint over the Inguri River, which until then was controlled by Abkhaz guards. This was a symbolic blow to the Abkhaz, whose former leader, Bagapsh, had insisted that Sukhumi would be in formal command of ‘frontier forces’, with the Russians assisting. Now in booths with darkened windows, Russian guards seated behind computer screens check passports and question visitors. During a recent entry by Crisis Group, one Russian and one Abkhaz official manned the booth, with the Russian clearly in charge – though the Russians at the border wear uniforms identical to the Abkhaz, without visible Russian insignia.

Russia has clearly solidified its security presence in Abkhazia over the past five years, flouting the commitments it made in 2008 to pull back its troops to their pre‑war locations, claiming that the agreements are no longer valid because of the ‘new realities’ created by diplomatic recognition. But Moscow is apparently not utilising its renovated infrastructure to full capacity. This may be due to a desire to not be seen as an occupying force, but may also be linked to Russian armed forces’ heavy commitment to combating a Salafi-inspired insurgency in the North Caucasus that limits resources available for use in the entity. It is less likely that Russia is doing this to keep the door open to a compromise with Georgia.

Abkhazia’s government is overwhelmingly dependent on Russia for budget and development funds. Since 2009 Moscow has provided about 1.9 billion roubles per year in direct budgetary support ($61-$67 million, depending on exchange fluctuations). In 2012, this amounted to 22 per cent of the official 8.6 billion rouble ($287 million) budget. But taking into account that Moscow allocated another 4.9 billion roubles ($163 million) that year as part of a ‘comprehensive aid plan’ for infrastructure development, the actual subsidy for Abkhazia’s budget is at least 70 per cent. In addition, Moscow also hands out an estimated two billion roubles ($70 million) in pension payments for Abkhaz residents, most with Russian passports.

...

A big reduction in Russian support would have profound political and social consequences. Abkhaz leaders have never made any secret that their level of real independence is circumscribed by their reliance on Moscow, sometimes using terms like ‘limited sovereignty’, or ‘asymmetrical independence’.

...

As long as Abkhazia remains largely dependent on Russia financially and thus politically, it is only able to make independent decisions on local matters. With no prospect of widespread recognition anytime soon and its development fully tied to Moscow, Abkhazia’s ‘independence project’ faces an uphill battle; the entity risks becoming increasingly similar to Russian regions in the North Caucasus.”

160.  In its decision of 27 January 2016, Pre-Trial Chamber I of the International Criminal Court also made the following observations:

“27.  With respect to the war crimes, the Chamber considers first that the information reasonably indicates that an international armed conflict existed between Georgia and the Russian Federation between 1 July 2008 and 10 October 2008. The existence of such international armed conflict is rather uncontroversial as concerns the period of armed hostilities between Georgian and Russian armed forces between 8 and 12 August 2008 and the period of Russian occupation of parts of Georgian territory, in particular the ‘buffer zone’, until at least 10 October [2008]. In addition, the Chamber considers, at this stage, that there is sufficient indication that the Russian Federation exercised overall control over the South Ossetian forces, meaning that also the period before the direct intervention of Russian forces may be seen as an international armed conflict ...”

3.    The Court’s assessment
   1.    General principles

161.  The general principles regarding the “effective control” of a Contracting State over a foreign territory, already set out in Al-Skeini and Others (cited above, §§ 138-39 and 142), have been reiterated and developed in, inter alia, Catan and Others (cited above, §§ 106-07), and subsequently in Chiragov and Others (cited above, § 168) and Mozer (cited above, § 98) (see paragraph 116 above).

2.    Application of the above principles to the facts of the case

162.  The Court observes at the outset that the question whether the facts complained of by the applicant Government fall within the jurisdiction of the respondent State and whether they are attributable to that State and engage its responsibility are separate matters, the latter two having to be determined on an examination on the merits (see Loizidou (preliminary objections), cited above, §§ 61 and 64, and Jaloud, cited above, §§ 154-55).

163.  The Court has also laid down that principle in Catan and Others (cited above, § 115) and reiterated it in Mozer (cited above, § 102):

“The Russian Government submitted an argument based on the ICJ Bosnian Genocide case, as they had done in Catan and Others (cited above, § 96), and the case of Nicaragua v. the United States of America ..., which was part of the case-law taken into account by the Court in Catan and Others (cited above, § 76). In these cases the ICJ was concerned with determining when the conduct of a group of persons could be attributed to a State, with the result that the State could be held responsible under international law for that conduct. In the instant case, however, the Court reiterates that it is concerned with a different issue, namely whether the facts complained of by the applicant fall within the jurisdiction of a respondent State within the meaning of Article 1 of the Convention. As the Court has already found, the test for establishing the existence of ‘jurisdiction’ under Article 1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under international law (see ... Catan and Others, cited above, § 115).”

164.  In the present case, in order to determine whether the facts complained of fall within the jurisdiction of the Russian Federation, in accordance with the Court’s case-law, it has to be established whether it exercised “effective control” in South Ossetia and in Abkhazia, and in the “buffer zone”. As the Court has stated in its case-law, “[i]t is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56, and Ilaşcu and Others, cited above, § 387). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (see Ilaşcu and Others, cited above, §§ 388-94)” (see, among other authorities, Al-Skeini and Others, cited above, § 139; Catan and Others, cited above, § 107; Chiragov and Others, cited above, § 168; and Mozer, cited above, § 98).

1.   Russian military presence

165.  In their observations the respondent Government acknowledged a substantial Russian military presence after hostilities had ceased, mainly in South Ossetia (14,901 Russian servicemen in total on 22 August for a total population of 30,000 inhabitants, and 119 tanks, 597 armoured fighting vehicles, 180 artillery systems and 94 air-defence systems), and then, after rectification at the Court’s request (see paragraph 150 above), also after 23 August 2008 (presence of the 693rd motor rifle regiment comprising 4,307 servicemen, 33 tanks, 220 fighting infantry vehicles, 30 artillery systems and 14 air-defence systems), and the establishment of 18 observation posts between Georgia and South Ossetia and in the “buffer zone”. Only 600 Russian servicemen had been stationed in the “buffer zone” itself after the cessation of hostilities. The respondent Government also referred to the creation of military bases after signing bilateral agreements between the Russian Federation and South Ossetia and Abkhazia respectively in April and February 2010.

2.   Economic, military and political support from the Russian Federation

166.  Furthermore, the respondent Government provided numerous indications showing the extent of the economic and financial support that the Russian Federation had provided and continued to provide to South Ossetia and to Abkhazia. They referred to the raft of measures put in place by the Emergency Situations Ministry (EMERCOM), in accordance with the decisions of the President of the Russian Federation and the government of the Russian Federation, to rebuild South Ossetia. They maintained that the financial and non-financial support provided to Abkhazia had been similar to that provided to South Ossetia except that there had been no gas supplies to Abkhazia. With regard to the Russian Federation’s support for its nationals abroad (in particular, pension payments), the respondent Government pointed out that Russian nationals represented a sizeable proportion of the South Ossetian and Abkhazian populations.

167.  Added to that is the information appearing in the report of, inter alia, the EU Fact-Finding Mission, which itself cites other sources such as the Human Rights Watch report, or the statements of the Commissioner for Human Rights of the Council of Europe, regarding the relationship of dependency not only in economic and financial, but also in military and political terms between the Russian Federation and South Ossetia and Abkhazia.

168.  Even if in the present case the Court is not required to examine the situation prior to the beginning of hostilities, the information provided by the EU Fact-Finding Mission is also revealing as to the pre-existing relationship of subordination between the separatist entities and the Russian Federation, which lasted throughout the active phase of the hostilities and after the cessation of hostilities.

169.  In its report, the EU Fact-Finding Mission refers to “creeping annexation” of South Ossetia and Abkhazia by the Russian Federation (see paragraph 156 above):

“The clearest demonstration of this Russian policy of integrating separatist entities of neighbouring states into its own legal jurisdiction was ‘passportisation’, the awarding of Russian passports and citizenship of the Russian Federation to residents of Abkhazia and South Ossetia. ...

Another aspect of ‘creeping annexation’ was the fact that the separatist governments and security forces were manned by Russian officials. Russia appointed its former civilian and military leaders to serve in key posts in Abkhazia and especially in South Ossetia, including the de facto Defence Ministers of Abkhazia (Sultan Sosnaliev) and South Ossetia (Anatoly Barankevich) and the de facto Chief of the Abkhaz General Staff (LtGen Gennadi Zaytsev).”

170.  This is particularly true of South Ossetia, where the EU Fact-Finding Mission specified in particular that “Russian officials already had de facto control over South Ossetia’s institutions before the outbreak of the armed conflict, and especially over the security institutions and security forces. The de facto Government and the ‘Ministries of Defence’, ‘Internal Affairs’ and ‘Civil Defence and Emergency Situations’, the ‘State Security Committee’, the ‘State Border Protection Services’, the ‘Presidential Administration’ – among others – have been largely staffed by Russian representatives or South Ossetians with Russian citizenship that have worked previously in equivalent positions in Central Russia or in North Ossetia”, adding that “[d]e facto control of South Ossetia [had] gradually [been] built up by Moscow”. With regard to Abkhazia, the EU Fact-Finding Mission specified that “the effective control of the Abkhaz authorities over the relevant territory and its residents [was] problematic, because many inhabitants had acquired Russian citizenship”, adding that “Russia’s control over Abkhazia’s security institutions seem[ed] to be less extensive than in South Ossetia” (see paragraph 156 above).

171.  Furthermore, at a press conference on 26 August 2009, that is, one year after recognition by the Russian Federation of South Ossetia’s and Abkhazia’s independence, the Russian Prime Minister Vladimir Putin observed, among other things: “In September 2008, we signed a Treaty on Friendship, Cooperation, and Mutual Assistance, and last April, the Agreement on Cooperation in the Protection of South Ossetia’s State Frontier. The Russian border guards have assumed responsibility for securing peace and tranquillity in the region.” He added: “Russia is going to continue rendering all-round political and economic support both to South Ossetia and Abkhazia” (see paragraph 157 above).

172.  Lastly, in its reports of 7 June 2010 on South Ossetia and of 10 April 2013 on Abkhazia, the International Crisis Group confirmed that both regions were totally dependent on the Russian Federation not only in economic and financial terms, but also in political and military terms, including in relation to border protection (see paragraphs 158-59 above):

“In September 2008, when its troops still occupied the Georgian ‘buffer zone’, adjacent to South Ossetia and Abkhazia, Russia signed agreements of ‘Friendship and Cooperation’ with both breakaway regions, pledging to help protect their borders. The signatories granted each other the right to military bases in their respective territories, recognised dual citizenship and established common transportation, energy and communications infrastructure. The agreements are valid for ten years and can be renewed every five.”

173.  With regard to the “buffer zone”, it appears undeniable that it was also occupied by Russian armed forces during the period in question, according to the converging information in this regard contained in the reports of the EU Fact-Finding Mission, Human Rights Watch and Amnesty International, and in the decision of Pre-Trial Chamber I of the International Criminal Court (see paragraphs 153-56 and 160 above).

3.   Conclusion

174.  Having regard to all these factors, the Court considers that the Russian Federation exercised “effective control”, within the meaning of the Court’s case-law, over South Ossetia, Abkhazia and the “buffer zone” from 12 August to 10 October 2008, the date of the official withdrawal of the Russian troops. Even after that period, the strong Russian presence and the South Ossetian and Abkhazian authorities’ dependency on the Russian Federation, on whom their survival depends, as is shown particularly by the cooperation and assistance agreements signed with the latter, indicate that there was continued “effective control” over South Ossetia and Abkhazia.

175.  It therefore concludes that the events which occurred after the cessation of hostilities (from the date of the ceasefire agreement of 12 August 2008) fell within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention, and dismisses the preliminary objection raised by the respondent Government in this regard.

It next needs to be determined, on an examination on the merits, whether there has been a violation of the rights protected by the Convention capable of engaging the responsibility of the Russian Federation.

2.     Alleged violation of Articles 2, 3 and 8 of the Convention and of Article 1 of Protocol No. 1

176.  The applicant Government submitted that killings, ill-treatment, looting and burning of homes had been carried out by the Russian armed forces and the South Ossetian forces in South Ossetia and the adjacent “buffer zone”. They alleged that such acts amounted to a violation of Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1, which are respectively worded as follows:

Article 2 of the Convention

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3 of the Convention

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of the Convention

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1.    The parties’ submissions
   1.    The applicant Government

177.  The applicant Government alleged that after the cessation of active hostilities, a campaign of ethnic cleansing had started and lasted months, ending only after nearly the entire ethnic Georgian population of South Ossetia had been expelled from their homes and their villages looted and destroyed. A significant number of the Convention violations alleged in this application had been committed behind Russian lines after hostilities had ended and Georgian military forces had withdrawn.

Before and after the cessation of hostilities, Russian ground troops together with Ossetian forces and other irregular troops operating under the effective control of the Russian Federation had entered ethnic Georgian villages. Most of the inhabitants of these villages had by this time fled or been evacuated and those who had remained had been predominantly elderly or infirm, either unable or too frightened to uproot themselves. Russian ground troops had sealed the villages off using entry and exit checkpoints and allowed ethnic Georgian homes and entire villages to be burnt. Individuals had been threatened with death if they refused to leave and summary executions had been carried out on Georgians on grounds of their ethnicity.

A number of the crimes committed during this campaign of ethnic cleansing had been perpetrated by Russian forces directly. Others had been committed in the presence of Russian forces, which had made no attempt to prevent them.

Based on the evidence submitted in support of these observations, the applicant Government invited the Court to conclude that the Russian Federation had adopted an administrative practice of causing or permitting the destruction of ethnic Georgian homes and villages with a view to making them uninhabitable, in violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No. 1 to the Convention, and the applicable rules of international humanitarian law. The applicant Government also invited the Court to find that the Russian Federation had adopted an administrative practice of causing or permitting the summary execution of civilians in violation of Article 2 of the Convention and the applicable rules of international humanitarian law.

2.    The respondent Government

178.  The respondent Government replied that the immediate result of Georgia’s attack had been very serious civil unrest with attacks by Ossetians on Georgian villages and homes. Given the terrain, and the fact that Georgian and Ossetian villages were often next to one another, and that people from both groups occupied some mixed villages, such attacks, which could come at any time, had been impossible to prevent.

Russian forces had attempted to intervene when they had witnessed such attacks and where they had been in a position to do so, consistently with the military purposes behind their presence. The declassified orders had made clear Russia’s intent to prevent unrest as far as it could.

However, Russian forces had been predominantly at the front line, or in transit to and from the front line, or securing supply lines. They had also been hampered by language, being unable to understand either Georgian or Ossetian. It had been extremely difficult to distinguish people returning from the conflict on either side from criminals bent on looting and destruction. Russian forces had not had the training or resources to assume a policing or peacekeeping role, and miscreants who had been apprehended had been handed to South Ossetian authorities, which had practical responsibility for trying to maintain order, albeit with depleted resources, against the background of Georgia’s repudiation of its own responsibility.

The remaining members of Russia’s peacekeeping battalion, under the direction of General Kulakhmetov, had been deployed in roving patrols to try to prevent unrest, looting and the destruction of property. He had described his efforts in a statement for these proceedings, but they had had limited success. The task had been hugely difficult, however, and it seemed that the South Ossetian authorities had frequently released people whom the Russian forces had arrested, very possibly for want of resources and of places to put them, and only for them to be arrested again.

Georgia’s own evidence purportedly in support of its application contained many references to protective steps taken by Russian soldiers to assist Georgian people, as would be explained in greater detail below.

Importantly, the Russian army had not occupied the territories through which it had moved whether in South Ossetia, Abkhazia or in undisputed Georgian territory. Its task had been only to deal with the Georgian armed forces and the continuing threat they posed.

Lastly, many Georgian villages had suffered substantial damage during fighting around Tskhinvali, including as a result of Georgian cluster munitions that had failed to hit their target, either because they had failed to function or because they had been fired from too great a distance. The respondent Government referred in this regard to the proceedings brought by the Israeli supplier against Georgia in the Commercial Court of England in London for defaulting on payment and to the settlement that had been agreed between the parties.

2.    Third-party comments

179.  The Human Rights Centre of the University of Essex submitted that, generally, the law of armed conflict ceased to apply at the end of active hostilities but there were provisions designed to secure the protection of individuals even after this time[20]. While, in the period immediately after the close of active hostilities, it could be necessary to recognise LOAC grounds of detention, that period would not last long.

Where the close of hostilities represented the start of occupation, a specific LOAC regime applied. Given the control over the territory which an occupier had to be able to exercise, it was appropriate for the occupying power to have the full range of HRL obligations[21].

3.    Summary of the relevant evidence
   1.    Written evidence

180.  The relevant part of the OSCE report cited above, concerning the post-war killings in South Ossetia (pp. 35-36), reads as follows:

“According to individuals interviewed, a disturbing pattern of killings of unarmed civilians continued in a large number of villages after the bombardment ended. Witnesses reported that the perpetrators were often Ossetians – some of whom were described as soldiers and others as civilians – who followed the Russian forces into the villages that were under Georgian administration prior to the August conflict. In Charebi village, for example, two separate witnesses reported that a group of ‘Ossetians’ murdered two village residents in their house. Citizens of Disevi village reported a murder by an ‘Ossetian’ from a nearby village, in addition to deaths from bombing. In Vanati, a displaced couple reported to the HRAM that one of their friends was killed by soldiers. They wanted to bury him but they were not allowed to since it was too late in the day and the Russian army had imposed a curfew. Also in Vanati, a schoolteacher was reportedly killed and his wife, a nurse, was wounded; her house was then set on fire leaving her to die inside. In Ksuisi village, a witness described how when he went outside after the bombing ended he came under sniper fire from an Ossetian village. In Satskheneti a woman witnessed a man shot and killed by an ‘Ossetian’ when he refused to hand over his cows and another man shot dead in a quarrel over a car. In Avnevi, a man was killed when he refused to let marauders into his house.

In contrast to the reports of Russian troops participating in misdeeds, several villagers told how some Russian troops intervened to assist the local population or to protect them from Ossetians. A woman from Tamarasheni, for example, recounted how Russian soldiers asked if she needed food and brought her three day’s supply of bread, butter, and canned meat. When a woman in Eredvi was harassed by an Ossetian, a Russian soldier nearby intervened, hit the Ossetian man with the butt of his gun and made him go away. In Charebi, Russian soldiers came and removed an unexploded bomb from a villager’s garden. In Nuli, Russian troops handed out white armbands to the population to protect them from ‘Ossetians’. Villagers from Kekhvi, Satskheneti and Ikoti reported that Russian troops did no harm in their villages.”

181.  The relevant part of the OSCE report cited above, concerning the post-war killings in the “buffer zone” adjacent to South Ossetia (p. 23), reads as follows:

“A new phase of the hostilities began with the advance of ground forces into the ‘buffer zone’, following which there were numerous reported attacks on civilians. The advancing military forces were variously described by displaced persons as ‘Ossetians’ and ‘Russians’; in many cases civilians were not able to distinguish clearly between the two. Displaced persons witnessed killings of unarmed civilians by incoming military forces in Gori and in the villages of Megvrekisi, Tirdznisi, Ergneti, and Karaleti. In Ergneti, for example, a villager described to the HRAM how he saw a group of ten ‘Ossetians’ in Russian uniforms hit an 80-year old man in the back and then shoot him. The victim, according to the villager, crawled into a building, said ‘I’ve been shot’, and then fell down and died. In Karaleti, a villager reported, a car with four ‘Ossetians’ dressed in military uniforms entered the village and shot and killed one of his neighbours with an automatic weapon.”

182.  The relevant passages of the report by the EU Fact-Finding Mission (Volume II, pp. 351-53 and 362-70) read as follows:

“During the conflict and after the cease-fire, there was a campaign of deliberate violence against civilians: houses were torched and villages looted and pillaged. Most of these acts were carried out in South Ossetia and in the undisputed territory of Georgia, mainly in the areas adjacent to the administrative border with South Ossetia.

These acts occurred even weeks after the cease-fire and the end of the hostilities. Such violations raise the critical question of the general lack of protection in areas under changing control, such as Georgian-administered villages in South Ossetia or the so-called ‘buffer zone’. As highlighted by interviews conducted by Human Rights Watch, most of the acts of violence against civilians, pillage and looting were committed by Ossetian forces. Information gathered from eyewitnesses also indicates the presence of Russian forces while these violations were taking place, and sometimes the participation of Russian forces in these acts. While most of the violations were committed against ethnic Georgians, ethnic Ossetians were also not immune from looters.

According to Human Rights Watch:

‘South Ossetian forces include South Ossetian Ministry of Defence and Emergencies servicemen, riot police (known by the Russian acronym OMON), and several police companies, working under the South Ossetian Ministry of Internal Affairs, and servicemen of the South Ossetian State Committee for Security (KGB). Many interviewees told Human Rights Watch that most able-bodied men in South Ossetia took up arms to protect their homes. As South Ossetia has no regular army its residents tend to refer to the members of South Ossetian forces as militias (opolchentsy) unless they can be distinctly identified as policemen or servicemen of the Ministry of Defence and Emergencies. Credible sources also spoke about numerous men from North Ossetia and several other parts of Russia who fought in the conflict in support of South Ossetia and who were involved in the crimes against civilians that followed.’

‘In some cases, it is difficult to establish the exact identity and status of the Ossetian perpetrators because witnesses’ common description of their clothing (camouflage uniform, often with a white armband) could apply to the South Ossetian Ministry of Defence and Emergencies, South Ossetian Ministry of Internal Affairs, volunteer fighters, or even common criminal looters. Several factors, however, indicate that in many cases the perpetrators belonged to South Ossetian forces operating in close cooperation with Russian forces. The perpetrators often arrived in villages together with or shortly after Russian forces had passed through them; the perpetrators sometimes arrived on military vehicles; and the perpetrators seem to have freely passed through checkpoints manned by Russian or South Ossetian forces.’

‘Witnesses sometimes also referred to the perpetrators as Chechens and Cossacks; whether this was an accurate identification is not clear, although there were media reports of Chechens and Cossacks participating in the conflict.’

Two closely linked questions arise at this point: that of identifying the perpetrators of these violations and that of the exact role played by the Russian forces in the violations. Answering these questions will have key legal implications, as it requires us to distinguish between those who committed these acts of violence and those who did not act to prevent them or stop them.

While it appears difficult to conclude that Russian forces systematically participated in or tolerated the conduct of South Ossetian forces, there do seem to be credible and converging reports establishing that in many cases Russian forces did not act to prevent or stop South Ossetian forces. Human Rights Watch refers to three types of situation: passive bystanders, active participation and the transport of militias. Some testimonies also mention the positive involvement of Russian troops in stopping militias from looting or preventing them from looting and burning houses. HRW refers also to checkpoints and roadblocks set up on 13 August which effectively stopped the looting and torching campaign but which were inexplicably removed after just a week. Interviews conducted in March 2009 by the IIFFMCG’s expert also produced different accounts ranging from active intervention to stop violations, to passive observation, and even involvement.

Lastly, it is important to stress from the outset that patterns of violence differed depending on the area concerned. The most extensive destruction and brutal violence seem to have taken place in South Ossetia, with certain characteristics that appear to be different from what happened in the buffer zone. This difference in pattern was explicitly recognised by representatives from the Georgian Ministry of Internal Affairs when meeting with IIFFMCG experts on 4 June 2009. There is, finally, no comparison possible between the situations in these two former areas and the effects of the hostilities in Abkhazia, which were very limited.

...

The conflict in Georgia and its aftermath have been characterised by a campaign of large-scale pillage and looting against ethnic Georgian villages in South Ossetia and in the so-called buffer zones. While this was mainly committed by Ossetian military and militias, including Ossetian civilians, there are many eyewitness reports of looting by Russian forces. Most importantly, numerous testimonies refer to Russian soldiers being present while armed Ossetians were looting. Some pillage started immediately after the withdrawal of the Georgian forces.

HRW documented – and sometimes directly witnessed – systematic looting in Tamarasheni, Zemo Achabeti, Kvemo Achabeti, Kurta, Tkviavi, Tirdznisi, Dvani, Koshka, Megrekisi, Nikozi, Karaleti, Knolevi, Avlevi, Tseronisi, and Kekhvi. The HRAM of the OSCE also reported a number of cases of looting and pillage. By way of example, the HRAM told of a woman in Kekhvi who saw her house being looted by a group of ‘Ossetians’ wearing military uniforms with white arm bands. The men also stole her car and loaded it with furniture from a neighbour’s house before driving away. As she fled the village, she saw ‘Ossetian’ soldiers who were being protected by Russian forces and were pillaging shops and other houses.

It is critical to stress that in the aftermath of the conflict the looting and pillage intensified both in South Ossetia and in the buffer zone in Dvani, Megvrekisi and Tkviavi.

Moreover, Ossetian villagers also participated in looting in September, demonstrating a lack of protection and policing by the Ossetian and Russian forces. Many testimonies refer to Russian forces being present whilst Ossetian militias were looting.

Far from being a few isolated cases, in certain villages the pillage seems to have been organised, with looters first using trucks to take the furniture and then coming to steal the windows and doors of houses.

Human Rights Watch also pointed out that ‘in some communities where Ossetians lived side-by-side with Georgians, or in mixed marriages, the Ossetians were also targeted for looting, harassment, and accusations of collaboration’, such as in Zonkar, a tiny Tskhinvali-administered hamlet in the Patara Liakhvi valley surrounded by ethnic Georgian villages.

Amnesty International expressed particular concern at the ‘many reports of Russian forces looking on while South Ossetian forces, militia groups and armed individuals looted and destroyed Georgian villages and threatened and abused the residents remaining there’. It described the following situation:

‘In the village of Eredvi on 26 August Amnesty International representatives witnessed ongoing looting and pillaging, including by armed men. As the looting was going on, Russian military equipment continued to pass through Eredvi ([east] of Tskhinvali) and Russian checkpoints controlled the entry and exit to the village; Amnesty International observed that only ordinary cars, rather than trucks or other large vehicles, were searched, and not in all cases.’

There is consequently extensive evidence of a widespread campaign of looting and pillage by Ossetian forces, as well as unidentified armed Ossetians and sometimes civilians, during the conflict but mostly after the cease-fire. While the Russian forces do not seem to have played an important part in this campaign, they did little to stop it.

...

When considering the destruction of civilian property in the context of the conflict in South Ossetia and its aftermath, a key distinction must be made between on the one hand destruction as a result of shelling, artillery strikes, aerial bombardment or tanks firing, which might constitute a violation of IHL but does not systematically do so, and destruction as a result of deliberate acts of torching and burning. As noted by the HRAM, some destruction resulted from the hostilities proper, whether during the offensive by Georgian forces against Tskhinvali and other villages in South Ossetia, or during Russian aerial bombardments and artillery shelling. Here it is necessary to refer to the section on indiscriminate attacks, above.

This type of destruction is in no way less serious. But it must be stressed from the outset that the extensive damage caused through burning, with some villages almost completely burned down, raises grave concern as to the motives behind such acts. The practice of burning reached such a level and scale that it is possible to state that it characterised the violence of the conflict in South Ossetia. This large-scale campaign of burning targeted ethnic Georgian villages in South Ossetia and, to a lesser extent, the areas adjacent to the administrative border.

In this regard it is also paramount to stress that a number of testimonies seem to suggest a pattern of deliberate destruction and torching in the ethnic Georgian villages in South Ossetia that was different in scale and motives from what happened in the buffer zone.

Regarding the burning and torching of entire villages in South Ossetia, the explanation given by Russia and the de facto South Ossetian authorities failed to convince the IIFFMCG.

According to the Russian Federation, ‘one of the reasons accounting for the fires and destruction in Georgian villages was the deliberate policy of arson perpetrated by the retreating Georgian Armed Forces. As a result a number of ordnances detonated including armour-piercing rocket-launcher rounds that had been placed and stored in advance in residential homes in a number of Georgian villages (Kekhvi, Tamarasheni, Kheita, Kurta, Eredvi, Avnevi, etc.) to arm Georgian paramilitary self-defence units’. Explanations given by South Ossetia also point the finger at Georgians: the representative of one of the two South Ossetian organisations accompanying the IIFFMCG during its visit to South Ossetia in March claimed that the houses were burned by Georgians. These claims, however, are not supported by any information available through interviews of IDPs [internally displaced persons] or of villagers who remained during the hostilities and after. Moreover, according to HRW, the majority of the witnesses it interviewed did not complain about violations against them by the Georgian forces, in the context of the ground offensive.

The South Ossetia de facto Prosecutor-General told the HRAM that the Georgian forces had been using these villages as military positions. This latter explanation could in no way account for the extensive and systematic torching of entire villages witnessed by the IIFFMCG. All the information gathered from a variety of sources points to South Ossetian forces and militias as being the perpetrators, with dozens of testimonies in this regard. Interviews of inhabitants from ethnic Georgian villages as direct eyewitnesses, by Georgian NGOs, Human Rights Watch and Amnesty International, as well as information collected by the IIFFMCG itself, substantiate this pattern.

After the cease-fire this campaign did not stop, but actually intensified. Regarding the extent of the damage caused, it is clear from both eyewitness reports and satellite images that many houses were burned in the last two weeks of August and in September.

This was also confirmed by IDPs interviewed by the IIFFMCG expert and other organisations. Furthermore, although to date unverifiable, one person interviewed by the Mission’s expert claimed that some burned houses were later destroyed to conceal the fact that they had been torched. This may be related to confirmed reports of burned houses having been ‘bulldozed’ in September.

The IIFFMCG also wishes to note that this campaign of burning houses in South Ossetia was accompanied by violent practices such as preventing people from extinguishing fires under threat of being killed or forcing people to watch their own house burning.

The IIFFMCG concludes that – as also stated by the HRAM and by HRW – after the bombing, South Ossetians in uniform as well as Ossetian civilians who followed the Russian forces’ advance undertook a systematic campaign of arson against homes and other civilian buildings in villages populated predominantly by ethnic Georgians. Interviews by the IIFFMCG expert confirmed that with few exceptions Russian forces did not participate directly in the destruction of villages, aside from a brief period in mid-August, but nor did they intervene to stop it.

With regard to the destruction of property in the buffer zone, it is first necessary to state that both types of destruction (as a result of hostilities, and from deliberate torching) were documented in this area. The IIFFMCG expert, travelling in June 2009 on the road from Karaleti to Koshka, saw several houses that had been destroyed by Russian aerial bombardment and artillery shelling. While these forms of destruction do not in themselves amount to a violation of IHL, some instances, discussed earlier, do constitute indiscriminate attacks. As for the burning of houses, the members of the OSCE HRAM counted approximately 140 recently burned homes during their travels in the ‘buffer zone’, none of which showed traces of combat activity.

Without questioning the reality of the destruction by torching of houses in the buffer zone, the IIFFMCG wishes to observe that, at least for the villages its expert visited in June 2009 and in the light of the interviews it conducted, the patterns of destruction through arson appear to be slightly different than in South Ossetia. First, the scale of the destruction is less vast. In Karaleti, inhabitants indicated that 25 houses had been burned. The motive for torching deserves particular attention. While it is true that revenge and private motives are also relevant in explaining the torching of ethnic Georgian villages in South Ossetia, the destruction of only selected houses in the village indicates a more targeted form of violence in the places the IIFFMCG visited. Information gathered by the IIFFMCG expert appears to suggest that lists of houses to be burned down were pre-established. Some inhabitants felt that the destruction was prompted by the fact that the owner had a relative in the police who had allegedly been involved in acts committed against ethnic Ossetians. An elderly woman living with her family on the outskirts of Karaleti explained that the house in front of hers had been burned down by a group of Ossetians because the owner had bought cattle that had previously been stolen from ethnic Ossetians. Similar accounts of the selective torching of houses were collected by the IIFFMCG expert in Tkviavi.

Another explanation for this more selective violence could be that many mixed families with Ossetian relatives live in the buffer zone. When acknowledging the different pattern of violence in the buffer zone, the representatives of the Ministry of Internal Affairs the IIFFMCG met with offered this as a justification for it.

While these considerations cannot be generalised, they need to be taken into account when reflecting on the patterns of violence during the conflict, especially with regard to property rights. This aspect of individualised revenge is critical and should not be overshadowed by more general patterns. For a comprehensive post-conflict solution to be meaningful, this aspect should be addressed in order to defuse tension and deal with the different types of violence effectively.”

183.  The Commissioner for Human Rights of the Council of Europe reported in this regard as follows (see Human Rights in Areas Affected by the South Ossetia Conflict, CommDH(2008)22, 8 September 2008, p. 16):

“87.  The Commissioner received a great number of reports of physical assault, robbery, kidnapping for ransom, looting and torching of houses as well as personal harassment by South Ossetian militia or other armed men both in the Georgian villages in South Ossetia and in the ‘buffer zone’.

88.  The Commissioner was alarmed over the ramping criminality in the ‘buffer zone’, as some civilians have remained there or are attempting to go back, if only for short visits. The Commissioner observed for an hour a number [of] civilians passing through the checkpoint in Karaleti on their way to their homes to look after their gardens and property.”

184.  The relevant part of the Amnesty International report, mentioned above, reads (pp. 31-32 and 34-39):

“...

According to eye-witness testimony collected by Amnesty International, the advancing Russian army was accompanied by both regular South Ossetian forces and an array of paramilitary groups. The latter groups have been widely referred to as ‘militias’ (opolchentsy in Russian, dajgupebebi in Georgian), and their exact composition is unclear. Just prior to the conflict there were reports of the arrival of 300 Ossetian volunteers who had been serving in the police in North Ossetia. De facto South Ossetian President Eduard Kokoity reportedly ordered the integration of these volunteers into the de facto South Ossetian Ministry of the Interior forces. There were also reports of representatives of other ethnic groups from the North Caucasus moving into South Ossetia following the onset of hostilities, in order to fight on the South Ossetian side. Amnesty International was also informed in North Ossetia that significant numbers of men who initially fled to North Ossetia from South Ossetia in the first days of the conflict returned to South Ossetia in order to fight. Several South Ossetians interviewed by Amnesty International representatives in both South and North Ossetia stated that they had taken up arms and participated in the hostilities.

The composition of armed groups identified by eye-witnesses as ‘South Ossetian militias’ is therefore extremely difficult to establish. Several accounts collected by Amnesty International indicated that these militias were composed of representatives from different ethnic groups and used Russian as a common language. These groups are widely described as having followed in the wake of Russian ground forces or aerial attacks; they were also widely reported by eye-witnesses and humanitarian organizations as moving through the ‘buffer zones’ established and maintained by Russian armed forces following the cessation of hostilities and throughout the following weeks. It would appear that the majority of these groups answered, if only loosely, to a South Ossetian chain of command and that the South Ossetian forces in turn operated in co-operation with Russian military forces.

Amnesty International is concerned by the serious abuses against ethnic Georgians in South Ossetia and adjacent ‘buffer zones’ under effective Russian control. Amnesty International documented unlawful killings, beatings, threats, arson and looting perpetrated by armed groups associated with the South Ossetian side and acting with the apparent acquiescence of Russian armed forces. Whilst the looting and pillaging of ethnic Georgian villages was initially focused on South Ossetia, and limited, in the immediate aftermath of the conflict, to largely opportunistic raids on Georgian property and villages along the main roads beyond the region’s borders, it progressively extended to the adjacent ‘buffer zone’ under effective Russian control in the weeks that followed. However, Georgian-populated settlements in South Ossetia under de facto South Ossetian administrative control are not reported as having suffered extensive damage.

As the occupying power Russian armed forces had overall responsibility for maintaining security, for law and order and for ensuring the welfare of the populations living in areas under their control. The Russian authorities therefore share, with the de facto South Ossetian authority controlling them, accountability for human rights abuses committed by South Ossetian militias engaged in looting, arson and other attacks, whether within the 1990 boundaries of South Ossetia or in Georgia proper.

Amnesty International is seriously concerned by reports of assaults on civilians by groups aligned with South Ossetia, during and in the wake of the conflict. In many cases South Ossetian armed groups or irregulars arrived in villages that were largely depopulated, with only the elderly and infirm remaining. According to eye-witness reports militias ordered local inhabitants to leave; Amnesty International received reports that those who resisted these orders were, in some cases, beaten and/or killed. Others were attacked in the course of uncontrolled looting.”

185.  The relevant parts of the above-mentioned Human Rights Watch report “Up in Flames” read as follows (pp. 123-24, 127-29, 154 and 163‑64):

“Russia’s Responsibility as Occupying Power

When Russian forces entered Georgia, including South Ossetia and Abkhazia, which are de jure parts of Georgia, they did so without the consent or agreement of Georgia. International humanitarian law on occupation therefore applied to Russia as an occupying power as it gained effective control over areas of Georgian territory (see above, Chapter 1.2). Tskhinvali and the rest of South Ossetia must be considered under Russian control from August 10, when Georgian forces officially retreated, through the present. Villages in Gori district fell under Russian control as Russian forces moved through them on August 12. Gori city must be considered under effective Russian control at least from August 12 or 13 until August 22, when Russian troops pulled back further north toward South Ossetia. Russia’s occupation of the area adjacent to South Ossetia ended when its forces withdrew to the South Ossetia administrative border on October 10.

Human Rights Watch documented one occasion when Russian forces intervened to help a civilian who was the victim of a crime in progress, and two distinct occasions when Russian forces temporarily set up roadblocks to prevent looting. Yet overall, Russian authorities did not take measures to stop the widespread campaign of destruction and violence against civilians in villages in South Ossetia (see below, Chapters 4.2 and 4.3) and in the buffer zone in undisputed Georgian territory. They allowed these areas to become a virtual no-man’s land where individuals were able to commit war crimes – to kill, loot, and burn homes – with impunity. This deliberate violence against civilians started in the immediate aftermath of Georgian forces’ withdrawal from South Ossetia and continued in waves in the weeks that followed; concomitantly, Russian forces’ failure to ensure protection of civilians in territories under their control was persistent. Russian forces therefore violated their obligation as an occupying power to ‘ensure public order and safety’ and to provide security to the civilian population in the territory under its control. This is a serious violation of international humanitarian law.

Russia bore responsibility but took no discernable measures on behalf of protected individuals, including prisoners of war, at least several of whom were executed or tortured, ill-treated, or subjected to degrading treatment by South Ossetian forces, at times with the participation of Russian forces.

...

Violations by South Ossetian Forces

Overview

Human Rights Watch found that South Ossetian forces and militias committed serious violations of international humanitarian law, including war crimes, in South Ossetia and undisputed Georgian territory controlled by Russian forces.

South Ossetian forces and militias embarked on a campaign of deliberate and systematic destruction of the Tbilisi-backed villages in South Ossetia, which involved the widespread and systematic pillage and torching of houses, and beatings and threats against civilians. In undisputed parts of Georgian territory they conducted a campaign of deliberate violence against civilians, burning and looting their homes, and committing execution-style killings, rape, abductions, and countless beatings. They rounded up at least 159 ethnic Georgians, killing at least one and subjecting nearly all of them to inhuman and degrading treatment and inhuman conditions of detention. They also tortured at least four Georgian prisoners of war and executed at least three.

In engaging in the violence summarized above, South Ossetian forces and militias egregiously violated multiple obligations under humanitarian law with respect to treatment of protected persons, including civilians and others hors de combat. Murder, rape, acts of torture, inhuman or degrading treatment, and wanton destruction of homes and property are all strictly prohibited under both humanitarian law and human rights law, and the perpetrators of such acts should be held criminally responsible for them. To the extent that any of these prohibited acts was committed as part of a widespread or systematic attack directed against any civilian population, they may be prosecuted as a crime against humanity. Where any of these acts, as well as acts such as imprisonment, unlawful detention of civilians, pillaging, and comprehensive destruction of homes and property, were carried out with discriminatory intent against a particular group, in this case ethnic Georgians, they also constitute the crime of persecution, a crime against humanity, prosecutable under the statute of the International Criminal Court.

South Ossetian forces include South Ossetian Ministry of Defense and Emergencies servicemen, riot police (known by the Russian acronym OMON), and several police companies, working under the South Ossetian Ministry of Internal Affairs, and servicemen of the South Ossetian State Committee for Security (KGB). Many interviewees told Human Rights Watch that most able-bodied men in South Ossetia took up arms to protect their homes. As South Ossetia has no regular army its residents tend to refer to the members of South Ossetian forces as militias (opolchentsy) unless they can be distinctly identified as policemen or servicemen of the Ministry of Defense and Emergencies. Credible sources also spoke about numerous men from North Ossetia and several other parts of Russia who fought in the conflict in support of South Ossetia and who were involved in the crimes against civilians that followed.

In some cases, it is difficult to establish the exact identity and status of the Ossetian perpetrators because witnesses’ common description of their clothing (camouflage uniform, often with a white armband) could apply to South Ossetian Ministry of Defense and Emergencies, South Ossetian Ministry of Internal affairs, volunteer fighters, or even common criminal looters. Several factors, however, indicate that in many cases the perpetrators belonged to South Ossetian forces operating in close cooperation with Russian forces. The perpetrators often arrived in villages together with or shortly after Russian forces passed through them; the perpetrators sometimes arrived on military vehicles; and the perpetrators seem to have freely passed through checkpoints manned by Russian or South Ossetian forces.

Witnesses sometimes also referred to the perpetrators as Chechens and Cossacks; whether this was an accurate identification is not clear, although there were media reports of Chechens and Cossacks participating in the conflict. In some cases, witnesses claimed that the groups of perpetrators consisted of both Ossetians and Russians. These incidents also demonstrate Russia’s failure to protect civilians in areas under its effective control (as discussed in Chapter 3.7).

...

South Ossetian Abuses in Undisputed Georgian Territory

Summary Executions

During and in the immediate aftermath of the war, at least 14 people were deliberately killed by Ossetian militias in territory controlled by Russian forces. Human Rights Watch documented six deliberate killings in undisputed Georgian territory controlled by Russian forces, and received credible allegations of another six cases. As described above, Human Rights Watch also heard allegations of two such killings in South Ossetia. In addition, Human Rights Watch documented the execution of one Georgian detainee and three Georgian prisoners of war by Ossetian forces, as described in Chapters 4.4 and 4.5. Extrajudicial killings constitute murder as prohibited under article 3 common to the Geneva Conventions, and ‘willful killings’ of protected persons as prohibited under the four Geneva Conventions. Willful killings of protected persons constitute grave breaches of the Geneva Conventions and war crimes.

...

Pillage and Destruction of Civilian Property

Ossetian militias looted, destroyed, and burned homes on a wide scale in undisputed Georgian territory south of the South Ossetian administrative border. As noted above (Chapter 3, Violations by Russian Forces), Russian forces were in many instances involved in these actions, either as active participants, passive bystanders, or by providing transportation to militias into villages. The Geneva Conventions prohibit pillage and destruction of civilian property, and the deliberate nature of this violation against protected persons makes it a war crime.

Pillage is prohibited, and the destruction of any real or personal property is only permitted where it is rendered absolutely necessary by military operations.

Villages close to the South Ossetian administrative border such as Koshka, Ergneti, Nikozi, Megvrekisi, Tirdznisi, and Tkviavi in Gori district, and Dvani, Knolevi, Avlevi, and Tseronisi in the Kareli district were particularly hard hit by destruction and pillage. Though the looting and torching was ongoing, two waves are discernible: the first just after Russian troops began the occupation of Gori and Kareli districts, and the second in the last week of August.

As noted above, in some incidents looters killed residents during the pillaging.”

186.  As to the use of cluster munitions by Georgia during the 2008 conflict, the relevant part of the above-mentioned Human Rights Watch report “A Dying Practice: Use of Cluster Munitions by Russia and Georgia in August 2008” reads as follows (pp. 63-66):

“Georgian statements about cluster munitions evolved dramatically from August 2008 to March 2009. Georgia moved from completely condemning the weapon to acknowledging limited Georgian use to recognising the possibility of a deadly failure of Georgian clusters yet defending their military advantage.

In August 2008 Georgia repeatedly blamed Russia for using cluster munitions but failed to acknowledge its own use. For example, the Ministry of Foreign Affairs issued a statement on August 15 that said, ‘It must be especially stressed, that the use of cluster munitions against civilian population is especially cynical next to the background of the efforts applied by the international community to restrict and even ban such types of weaponry.’ The same day, Georgian President Mikheil Saakashvili, in a press conference with US Secretary of State Condoleezza Rice, described cluster munitions as ‘an inhuman weapon’ and the Russians as ‘21st century barbarians’ and ‘cold-blooded killers’ for using them against civilians.

In early September, however, Georgia acknowledged its own use of cluster munitions. In a letter to Human Rights Watch made public on September 1, the Georgian Ministry of Defence stated that it had used cluster munitions ‘against Russian military equipment and armament marching from Rocki [sic] tunnel to Dzara road.’ The ministry also insisted that cluster munitions ‘were never used against civilians, civilian targets and civilian populated or nearby areas.

The letter, later made public, identified the type of cluster munitions used as Mk.-4 LAR160 rockets carrying M85 submunitions. It said the rockets were launched from the GRADLAR 160 multiple launch rocket system and had a range of 45 kilometres. It also claimed Georgia only had M85s with self-destruct mechanisms. The ministry denied launching rockets toward Shindisi, despite Human Rights Watch’s discovery of M85s there. It also said the Russians had not destroyed any GRADLAR launchers during the war.

The ministry concluded:

The discovery of M85 bomblets in Shindisi raises a lot of suspicion ... This fact demands proper investigation and Georgian side is ready to participate in and provide all necessary assistance for the conduc[t] of such investigation. If needed, for the investigation purposes, we can provide the name of the supplier company.

In a meeting with Human Rights Watch on October 21, 2008, then-First Deputy Minister of Defence Batu Kutelia presented a more nuanced position on Georgia’s use of cluster munitions. He said Georgia has limited M85 stocks and used them only against Russian troops in the area north of Tskhinvali. He did not deny, however, that the M85s Human Rights Watch found in Georgia could be Georgian weapons.

Kutelia said he could not explain the presence of M85 submunitions in areas south of the South Ossetian administrative border. He said:

We received reports of M85s in a number of Georgian villages. How they ended up there is unclear. Our system would not fire there itself.... Perhaps an accident happened. That might be the explanation.... It’s a real mystery how they ended up there. It is physically impossible someone fired there.

He said Georgia had opened an investigation into the situation and had requested assistance from the company from which they bought the weapons. He did not disclose the name of the company, but it is presumably Israel Military Industries.

A massive failure is one possible explanation for the many M85 duds Human Rights Watch documented south of the South Ossetian border. In villages other than Tirdznisi and Shindisi, Human Rights Watch found no evidence of M85 submunitions that exploded on impact and much evidence of M85s that had failed to function. According to witnesses, there were also no Russian troops in the areas hit at the time of the strikes. The Mk.-4 rocket has a minimum range of 12 kilometers. According to Kutelia, Georgia fired its rockets from about eight to ten kilometres north of Gori (although the Georgian Ministry of Defence, in a February 2009 response to a Human Rights Watch inquiry, refused to release more detailed information about the launch sites, saying that the information ‘is not public’). If Kutelia’s information about the launch sites is correct, the rockets that landed in the Gori District fell short of their minimum range, which would explain why there were high dud rates[22] and why so many submunitions were unarmed.

Georgian officials claimed that their military directed cluster munition strikes only against military targets in fairly unpopulated areas just south of the Roki Tunnel. If a massive failure of the weapons system caused the civilian casualties and contamination of a large populated area in the Gori District, however, the consequences of the failure highlight the danger of these weapons. The large number of submunitions dramatically increases the harm caused by any failure.

Kutelia also expressed surprise at the large number of M85 duds found not only by Human Rights Watch researchers but also by Georgian military deminers. Like the former, the latter found no evidence of self-destruct mechanisms, but according to Kutelia, ‘our contract was for self-destruct’. He said the Ministry of Defense, with the company’s help, would also investigate that issue.”

187.  The relevant passage from the decision of 27 January 2016 of Pre‑Trial Chamber I of the International Criminal Court reads as follows:

“19.  During the same period, the civilian population, in particular ethnic Georgian civilians, was attacked by South Ossetian forces, including an array of irregular militias, in Georgian‑administered villages in South Ossetia and Georgian villages in the ‘buffer zone’. The attack commenced subsequent to the intervention and in the course of the advancement of the Russian forces, and continued in the weeks that followed the cessation of active hostilities on 12 August 2008.

20.  The attack targeted mainly ethnic Georgians following a consistent pattern of deliberate killing, beating and threatening civilians, detention, looting properties and burning houses. The level of organization of the attack is apparent from the systematic destruction of Georgian houses, the use of trucks to remove looted goods, and the use of local guides to identify specific targets. Valuable items were removed from houses or farms before they were set on fire.

21.  These acts were reportedly committed with a view to forcibly expelling ethnic Georgians from the territory of South Ossetia in furtherance of the overall objective to change the ethnic composition of the territory, sever any remaining links with Georgia and secure independence. The de facto leadership of South Ossetia reportedly acknowledged some aspects of the policy of expulsion, in particular the deliberate destruction of civilian homes in order to prevent the return of the ethnic Georgian population. The supporting material further suggests that the policy to expel was passed from the highest echelons of the South Ossetian leadership to the South Ossetian forces. It has been reported that irregular armed groups answered, if only loosely, to the South Ossetian chain of command.

22.  The attack against the civilian population resulted in between 51 and 113 cases of deliberate killings of ethnic Georgians and the displacement of between 13,400 and 18,500 ethnic Georgian inhabitants from villages and cities in South Ossetia and the ‘buffer zone’. Coercive acts used by South Ossetian forces to create an atmosphere of fear and terror thus forcing ethnic Georgians to leave their place of residence reportedly included killings, severe beatings, insults, threats and intimidation, detention, looting and destruction of property.

23.  Accounts vary as regards the conduct of Russian armed forces or the Russian Federation in relation to the acts allegedly committed either by members of the Russian forces or in relation to the acts allegedly committed by South Ossetian forces. The information indicates that some members of the Russian forces actively participated while others remained passive. For example, when asked why the Russian forces do not intervene to extinguish the fires, one Russian army officer is quoted to have said that this is the policy. The Chamber, however, also notes a series of instances where members of the Russian forces purportedly intervened to protect and assist civilian victims.”

188.  The satellite images from the “High-Resolution Satellite Imagery and the Conflict in Georgia” AAAS summary report of October 2008 show that the majority of the damage to houses in Georgian villages after 10 August 2008 had been caused by burning (see page 28 of the report and the witness statement below by W32[23], an employee of the AAAS, on this subject).

189.  The relevant extract from a combat order[24] of 12 August 2008 sent by the Russian commander of the forces of the North-Caucasian military circuit to the commander of the 58th army and other combat divisions is worded as follows:

“1.  On 12 August 2008, pursuant to the instructions of the President of the Russian Federation the Armed Forces in cooperation with other security forces of the Russian Federation and the executive authorities of the Republic of South Ossetia (hereinafter referred to as the RSO) completed the military operations and commenced the peacekeeping activities, as well as the activities to maintain law and order, ensure public security and protection of the individuals within the RSO and the Georgian territory controlled by the Russian Armed Forces.

Notwithstanding the execution of the ceasefire agreement the acts aimed on destabilisation of the situation in the area controlled by the Russian Armed Forces by the nationalistic militias are expected.

Furthermore, looting and robbery attempts by the local population and the soldiers of the RSO are possible.

2.  In pursuance of the instructions of the President of the Russian Federation, for the purposes of peacekeeping and ceasefire I hereby ORDER THE FOLLOWING:

...

to prevent looting by the local population and the soldiers;

...

3.  To arrange for the cooperation with the units of the Armed Forces of the RSO and executive authorities in order to accomplish the tasks set and to protect the lives of the soldiers and the local inhabitants

...

5.  To carry out the commandment of the forces (troops) in the course of accomplishment of the peacekeeping and law enforcement tasks within the RSO and the Georgian territory controlled by the Russian Army in accordance with the shared system with the use of the command points of the military circuit, their direct subordinate units in cooperation with the authorities of the RSO.”

2.    Hearing of witnesses

190.  W13 and W14, two Georgian citizens living in Tirdznisi, stated that bombardment by the Russians had begun on 8 August 2008. Subsequently, Russian forces had taken control of the village and South Ossetians and/or Russians had looted and burnt people’s houses. On 14 August 2008 South Ossetians and/or Russians had chased W13 and Ivane Lalashvili and the latter had subsequently been killed. W14 had returned to his village in mid‑August 2008 and had seen a group of Russian soldiers and South Ossetian militias beating to death Natela Kaidarashvili, who was 67 years old and deaf. When asked about victims of cluster munitions, W14 replied that Mikheil Kaidarashvili had stepped on unexploded ordnance and died as a result. He did not know if Mikheil Kaidarashvili was a relative of Natela Kaidarashvili, but they had lived in the same house.

W15, a Georgian citizen living in Vanati, stated that his village had been bombed on or around 7 August 2008. On 9 or 10 August 2008 Russian forces had taken control of the village and there had subsequently been widespread looting and burning of houses by South Ossetian militias. All the houses, except those with white markings, had been torched, and sometimes even houses where ethnic South Ossetians lived. He added that South Ossetians could be identified because they wore one white armband on their sleeves whereas North Caucasians wore two.

191.  W30 and W31, former members of the Parliamentary Assembly of the Council of Europe and co-rapporteurs of the Monitoring Committee for Georgia and the Russian Federation respectively, participated in fact-finding visits in South Ossetia and in the “buffer zone” in the immediate aftermath of the hostilities. Both stated that the “ethnic cleansing” of Georgian villages had been committed by South Ossetian militias and gangs. While Russian forces had not taken part in those crimes, being the occupying power they had had a duty to prevent them and had failed in their duty.

192.  W23 stated that after hostilities had ceased his troops had been deployed in the “buffer zone” and ordered to search for remaining Georgian troops and equipment. He said that he had visited several villages and had never seen or heard of any cases of looting and burning. While they had found some burnt houses in Tirdznisi, these had burnt down before, possibly during the period of active fighting, and had no longer been on fire. Lastly, he underlined that orders to prevent looting, burning and other crimes against the local population in the “buffer zone” had been issued to him every day in writing during the period of 12 to 15 August 2008 and that a copy of those orders could still be obtained.

W21 stated that after the cessation of hostilities peacekeeping forces had been deployed along the “border” between South Ossetia and Georgia in the “buffer zone”. Their task had been to ensure that there was no movement of troops across the “buffer zone”, as neither South Ossetian nor Georgian forces had been allowed into that zone, and to ensure the safety of the remaining local population whom they had assisted as much as they could. Russian peacekeeping forces could be distinguished from regular Russian forces because they wore the inscription “MC” on their uniforms and helmets.

W22 stated that his regiment of 800 soldiers had been posted in Gori during the period of 13 to 17 August 2008. Its key task had been to prevent looting and burning. He added that he had not had enough men to protect the many villages in the “buffer zone”. He said that there had been no looting or burning in the area under his responsibility (that is, Gori) and that Russian forces, in general, had done everything possible in order to prevent crimes against the local population.

W20, Commander of Joint Peacekeeping Forces in South Ossetia from September 2004 to October 2008, stated that after the cessation of hostilities the Russian peacekeeping forces had no longer been responsible for South Ossetia, but had all been transferred to the “buffer zone”. Law and order in South Ossetia had been the responsibility of regular Russian forces after 12 August 2008. There had been, all in all, about 460-480 peacekeepers in the “buffer zone”. As the area under the responsibility of the peacekeeping forces had been large and contained 200 or so settlements, it had been impossible to prevent all acts of looting and burning. However, the peacekeeping forces had done all they could to protect the local population. With regard to the allegations by Human Rights Watch and the OSCE that there had been ample evidence of systematic looting and burning of ethnic Georgian villages by South Ossetian forces in the presence of Russian armed forces, W20 replied that those NGOs had visited South Ossetia and the “buffer zone” only after the withdrawal of the Russian forces, and denied that there had been a systematic campaign of looting and burning.

W24, “Minister of Foreign Affairs” of South Ossetia from 1998 to 2012, explained that during the 2008 conflict the following forces had taken part: armed forces under the “Ministry of Defence of South Ossetia”; police forces under the “Ministry of Internal Affairs of South Ossetia”; and “defenders” or militias formed from the general population in time of war.

193.  W32, an employee of the AAAS, which produced the report “High‑Resolution Satellite Imagery and the Conflict in Georgia” in October 2008, said that satellite images of 10 and 19 August 2008 had been available. She said that the most helpful graphic was probably the one on page 28 of the report which clearly showed that the town of Tskhinvali had sustained the most damage up to the morning of 10 August 2008, whereas the nearby villages, inhabited by ethnic Georgians, had sustained the most damage between the morning of 10 August and the morning of 19 August 2008. The report also showed that most of the pre-10 August 2008 damage had been caused by shelling and bombing, whereas most of the post‑10 August 2008 damage had been caused by burning. The witness explained that a burnt house looked very different to a bombed house on satellite images: while fire would usually not knock down its exterior and interior walls, a shell or a bomb would.

4.    Relevant provisions of international humanitarian law

194.  The relevant provisions of the Hague Regulations concerning the Laws and Customs of War on Land read as follows:

Article 42

“Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation extends only to the territory where such authority has been established and can be exercised.”

Article 43

“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

195.  In Chiragov and Others (cited above) the Court defined the concept of “occupation” in international humanitarian law as follows:

“96.  ...

Accordingly, occupation within the meaning of the 1907 Hague Regulations exists when a State exercises actual authority over the territory, or part of the territory, of an enemy State.[25] The requirement of actual authority is widely considered to be synonymous to that of effective control.

Military occupation is considered to exist in a territory, or part of a territory, if the following elements can be demonstrated: the presence of foreign troops, which are in a position to exercise effective control without the consent of the sovereign. According to widespread expert opinion, physical presence of foreign troops is a sine qua non requirement of occupation[26], that is, occupation is not conceivable without ‘boots on the ground’, therefore forces exercising naval or air control through a naval or air blockade do not suffice[27].”

196.  Generally speaking, international humanitarian law applies in a situation of “occupation”. In the Court’s view, the concept of “occupation” for the purposes of international humanitarian law includes a requirement of “effective control”. If there is “occupation” for the purposes of international humanitarian law there will also be “effective control” within the meaning of the Court’s case-law, although the term “effective control” is broader and covers situations that do not necessarily amount to a situation of “occupation” for the purposes of international humanitarian law (see also the report of the EU Fact-Finding Mission, Volume II, pp. 304-12).

197.  In its report the EU Fact-Finding Mission indicated that it was not easy to determine when international humanitarian law ceased to apply:

“The question remains whether, when the cease-fire occurred on 12 August 2008, IHL ceased to apply in relation to the August 2008 conflict. While it could be said that it is fairly easy to determine when IHL starts to apply, it seems more difficult to identify the moment when its application ends, mainly owing to the different formulas used in conventional law. Geneva Convention IV, for example, speaks about the ‘general close of military operations’ (Article 6(2)), whereas Additional Protocol II uses the expression ‘end of the armed conflict’ (Article 2(2)). The International Criminal Tribunal for the former Yugoslavia (ICTY), in its decision of 2 October 1995 in the Tadic case, tried to clarify this point by indicating that: ‘International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.’ The ICTY thus rejected the factual criteria that signify the cessation of hostilities. This implies that a cease-fire – whether temporary or definitive – or even an armistice cannot be enough to suspend or to limit the application of IHL. Relevant conventional instruments stipulate that a number of provisions continue to apply until the emergence of a factual situation completely independent of the concluding of a peace treaty. Thus, to quote only some examples, the protection provided for people interned as a result of the conflict (in particular, prisoners of war and civilian prisoners) applies until their final release and repatriation or their establishment in the country of their choice.”

198.  Other relevant provisions in this connection are Articles 27, 29, 32, 33, 49 and 53 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War.

199.  Having regard to the complaints raised in the present case, there is no conflict between Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1 and the rules of international humanitarian law applicable in a situation of occupation.

5.    The Court’s assessment
   1.    General principles

200.  With regard to the obligations incumbent on a State exercising “effective control” over an area, the relevant passages from the Al-Skeini and Others judgment (cited above) are worded as follows:

“138.  Another exception to the principle that jurisdiction under Article 1 is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration (see Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey, cited above, § 76; Banković and Others, cited above, § 70; Ilaşcu and Others, cited above, §§ 314-16; and Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State’s military and other support entails that State’s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights (see Cyprus v. Turkey, cited above, §§ 76-77).

...

142.  The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘legal space of the Convention’ (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80).”

201.  The principles set forth in Al-Skeini and Others (cited above, § 138) have subsequently been reiterated in, inter alia, Catan and Others (cited above, § 106), Chiragov and Others (cited above, § 168), Mozer (cited above, § 98), and Güzelyurtlu and Others (cited above, § 179).

202.  On the merits the Court has dealt with applications where it was undisputed that the applicants’ relatives had died in circumstances falling outside the exceptions set out in the second paragraph of Article 2. In those cases, if the Court established that the applicants’ relatives had been killed by State agents or with their connivance or acquiescence, it found the respondent State liable for their death (see, among many other authorities, Avşar v. Turkey, no. 25657/94, §§ 413-16, ECHR 2001‑VII (extracts); Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 147, 24 February 2005; Estamirov and Others v. Russia, no. 60272/00, § 114, 12 October 2006; Musayeva and Others v. Russia, no. 74239/01, §§ 79-82, 26 July 2007; and Amuyeva and Others v. Russia, no. 17321/06, §§ 83-84, 25 November 2010). And even in circumstances where the Court could not establish beyond reasonable doubt that any State agent had been involved in the killing, the Court nonetheless found the respondent State responsible if it considered that the authorities had failed to take reasonable measures available to them to protect the right to life of the applicant in question (see Mahmut Kaya v. Turkey, no. 22535/93, §§ 87 and 101, ECHR 2000‑III; Kılıç v. Turkey, no. 22492/93, §§ 64 and 77, ECHR 2000‑III; and Gongadze v. Ukraine, no. 34056/02, §§ 170-71, ECHR 2005‑XI).

203.  Reference may also be made in this connection to the International Court of Justice’s judgment of 19 December 2005 in Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) (Judgment, ICJ Reports 2005, p. 231, §§ 179-80).

204.  The Court has also dealt with cases concerning allegations of the deliberate destruction of homes by security forces, even where this has not been in the context of an international armed conflict (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 88, Reports 1996-IV). It has subsequently dealt with similar allegations in the context of a state of emergency proclaimed in certain regions of Turkey (see, among many other authorities, Menteş and Others v. Turkey, 28 November 1997, Reports 1997‑VIII; Selçuk and Asker v. Turkey, 24 April 1998, Reports 1998-II; Bilgin v. Turkey, no. 23819/94, 16 November 2000; Dulaş v. Turkey, no. 25801/94, 30 January 2001; Yöyler v. Turkey, no. 26973/95, 24 July 2003; and İpek v. Turkey, no. 25760/94, ECHR 2004-II (extracts)).

2.    Application of the above principles to the facts of the case

205.  The Court observes that the information appearing in the various reports by international organisations and the EU Fact-Finding Mission, and in the decision of the International Criminal Court is consistent as regards the existence, after the cessation of active hostilities, of a systematic campaign of burning and looting of homes in Georgian villages in South Ossetia and in the “buffer zone”. Such information also corresponds to the satellite images appearing in the AAAS report, which show that the houses in question had been burnt. That campaign was accompanied by abuses perpetrated against civilians and in particular summary executions. The three Georgian witnesses heard by the Court also mentioned burning and looting of houses by South Ossetian militias while their villages had been under Russian control, and abuses perpetrated against Georgian civilians (see paragraph 190 above). W30 and W31, co-rapporteurs of the Monitoring Committee for Georgia and the Russian Federation respectively, stated that “ethnic cleansing” of Georgian villages had been committed by South Ossetian militias and gangs.

206.  Following a detailed description of the events in question and referring in particular to the Human Rights Watch and Amnesty International reports, the EU Fact-Finding Mission reached the following conclusion (see paragraph 182 above):

“[A]s also stated by the HRAM and by HRW – after the bombing, South Ossetians in uniform as well as Ossetian civilians who followed the Russian forces’ advance undertook a systematic campaign of arson against homes and other civilian buildings in villages populated predominantly by ethnic Georgians. Interviews by the IIFFMCG expert confirmed that with few exceptions Russian forces did not participate directly in the destruction of villages, aside from a brief period in mid-August, but nor did they intervene to stop it.”

207.  The OSCE, for its part, referred to the murder of civilians in South Ossetia and in the buffer zone (see paragraphs 180-81 above):

“According to individuals interviewed, a disturbing pattern of killings of unarmed civilians continued in a large number of villages after the bombardment ended. Witnesses reported that the perpetrators were often Ossetians – some of whom were described as soldiers and others as civilians – who followed the Russian forces into the villages that were under Georgian administration prior to the August conflict.

...

A new phase of the hostilities began with the advance of ground forces into the ‘buffer zone’, following which there were numerous reported attacks on civilians. The advancing military forces were variously described by displaced persons as ‘Ossetians’ and ‘Russians’; in many cases civilians were not able to distinguish clearly between the two.”

208.  Pre-Trial Chamber I of the International Criminal Court stated as follows (see paragraph 187 above):

“19.  During the same period, the civilian population, in particular ethnic Georgian civilians, was attacked by South Ossetian forces, including an array of irregular militias, in Georgian‑administered villages in South Ossetia and Georgian villages in the ‘buffer zone’. The attack commenced subsequent to the intervention and in the course of the advancement of the Russian forces, and continued in the weeks that followed the cessation of active hostilities on 12 August 2008.

20.  The attack targeted mainly ethnic Georgians following a consistent pattern of deliberate killing, beating and threatening civilians, detention, looting properties and burning houses. The level of organization of the attack is apparent from the systematic destruction of Georgian houses, the use of trucks to remove looted goods, and the use of local guides to identify specific targets. Valuable items were removed from houses or farms before they were set on fire.”

209.  According to the statement by W24, “Minister of Foreign Affairs” of South Ossetia from 1998 to 2012, the following forces took part in the 2008 conflict: armed forces under the “Ministry of Defence of South Ossetia”; police forces under the “Ministry of Internal Affairs of South Ossetia”; and “defenders” or militias formed from the population in time of war (see paragraph 192 above).

210.  In addition, the report by Human Rights Watch defines the composition of the South Ossetian forces as follows (see paragraph 185 above):

“South Ossetian forces include South Ossetian Ministry of Defence and Emergencies servicemen, riot police (known by the Russian acronym OMON), and several police companies, working under the South Ossetian Ministry of Internal Affairs, and servicemen of the South Ossetian State Committee for Security (KGB). Many interviewees told Human Rights Watch that most able-bodied men in South Ossetia took up arms to protect their homes. As South Ossetia has no regular army its residents tend to refer to the members of South Ossetian forces as militias (opolchentsy) unless they can be distinctly identified as policemen or servicemen of the Ministry of Defence and Emergencies. Credible sources also spoke about numerous men from North Ossetia and several other parts of Russia who fought in the conflict in support of South Ossetia and who were involved in the crimes against civilians that followed.”

211.  The report also indicates that it was sometimes difficult to establish who the perpetrators were (ibid.):

“In some cases, it is difficult to establish the exact identity and status of the Ossetian perpetrators because witnesses’ common description of their clothing (camouflage uniform, often with a white armband) could apply to the South Ossetian Ministry of Defence and Emergencies, South Ossetian Ministry of Internal Affairs, volunteer fighters, or even common criminal looters. Several factors, however, indicate that in many cases the perpetrators belonged to South Ossetian forces operating in close cooperation with Russian forces. The perpetrators often arrived in villages together with or shortly after Russian forces had passed through them; the perpetrators sometimes arrived on military vehicles; and the perpetrators seem to have freely passed through checkpoints manned by Russian or South Ossetian forces.”

212.  Accordingly, even if there were also civilians among them who directly participated in the hostilities on a merely spontaneous, sporadic or unorganised basis, the Court considers that the evidence available to it indicates that in many cases the perpetrators were members of the South Ossetian forces, including an array of irregular militias.

213.  The respondent Government, for their part, did not dispute as such the reality of those events, but submitted that bombings by Georgian armed forces of Tskhinvali, among other places, had created inter-ethnic tensions and had subsequently caused South Ossetians to take revenge on the Georgian civilian population by attacking Georgian villages. The Russian forces, who had allegedly often attempted to interpose themselves and protect the Georgian villages, had not been in a position to prevent every incident and in any case had not controlled the South Ossetians, who had often been criminals. The commanders of the Russian armed forces and Russian peacekeeping forces who had testified at the witness hearing had also stated that their troops had done everything in their power to protect the civilian population, but had often not had sufficient men to prevent every incident.

214.  However, in accordance with the Court’s case-law (see Al‑Skeini and Others, cited above, §§ 138 and 142, and the case-law cited therein, as well as subsequent judgments – see paragraphs 200-01 above), from the time when the Russian Federation exercised “effective control” over the territories of South Ossetia and the “buffer zone” after the active conduct of hostilities had ceased, it was also responsible for the actions of the South Ossetian forces in those territories, without it being necessary to provide proof of “detailed control” of each of those actions.

215.  The Court has applied these principles in, inter alia, the Cyprus v. Turkey judgment (cited above):

“77.  ... Having effective overall control over northern Cyprus, [Turkey’s] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. ...”;

in Ilaşcu and Others (cited above):

“382.  In the light of all these circumstances, the Court considers that the Russian Federation’s responsibility is engaged in respect of the unlawful acts committed by the Transdniestrian separatists, regard being had to the military and political support it gave them to help them set up the separatist regime and the participation of its military personnel in the fighting ...”;

and subsequently in Mozer (cited above):

“157.  Nevertheless, the Court has established that Russia exercised effective control over the ‘MRT’ during the period in question ... In the light of this conclusion, and in accordance with the Court’s case-law, it is not necessary to determine whether or not Russia exercises detailed control over the policies and actions of the subordinate local administration (see Catan and Others, cited above, §§ 106 and 150). By virtue of its continued military, economic and political support for the ‘MRT’, which could not otherwise survive, Russia’s responsibility under the Convention is engaged as regards the violation of the applicant’s rights.”

216.  The Court also observes that an administrative practice is defined not only by a “repetition of acts”, but also “official tolerance”, that is to say, “illegal acts are tolerated in that the superiors of those immediately responsible, though cognisant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied” (see, among other authorities, Georgia v. Russia (I), cited above, § 124).

217.  In the present case, even if some witness statements indicate that at times Russian troops did intervene to stop abuses being committed against civilians, in many cases Russian troops were passively present during scenes of looting. Accordingly, the EU Fact-Finding Mission indicated as follows (see paragraph 156 above):

“In general, these elements demonstrate that to a certain degree, Russian forces were in a position to ensure public order and safety in the territories they were stationed in, and claim to have undertaken measures in this regard. This contrasts strikingly with what happened on the ground, where there was a serious lack of action by the Russian troops to prevent violations and protect ethnic Georgians.

...

Nevertheless, from all the testimonies collected, it appears that the Russian authorities did not take the necessary measures to prevent or stop the widespread campaign of looting, burning and other serious violations committed after the ceasefire.”

218.  This shows that despite the order given to the Russian armed forces to protect the population and carry out peacekeeping and law-enforcement operations “in South Ossetia and in the Georgian territory controlled by the Russian armed forces” (see paragraph 189 above), on the ground the measures taken by the Russian authorities proved to be insufficient to prevent the alleged violations.

219.  In that respect this can be deemed to be “official tolerance” by the Russian authorities, as is also shown by the fact that the latter did not carry out effective investigations into the alleged violations (see paragraph 336 below).

220.  Having regard to the foregoing, the Court considers that it has sufficient evidence in its possession to enable it to conclude beyond reasonable doubt that there was an administrative practice contrary to Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1 as regards the killing of civilians and the torching and looting of houses in Georgian villages in South Ossetia and in the “buffer zone”. Having regard to the seriousness of the abuses committed, which can be classified as “inhuman and degrading treatment” owing to the feelings of anguish and distress suffered by the victims, who, furthermore, were targeted as an ethnic group (see, mutatis mutandis, Cyprus v. Turkey, cited above, §§ 305‑11), the Court considers that this administrative practice was also contrary to Article 3 of the Convention.

221.  Furthermore, in accordance with the Court’s case-law (see paragraph 98 above), the rule of exhaustion of domestic remedies does not apply where the existence of an administrative practice is established. The preliminary objection of non-exhaustion of domestic remedies raised by the respondent Government in this regard must therefore be dismissed.

222.  There has therefore been a violation of Articles 2, 3 and 8 of the Convention and Article 1 of Protocol No. 1, and the Russian Federation is responsible for that violation.

6.   TREATMENT OF CIVILIAN DETAINEES AND LAWFULNESS OF THEIR DETENTION

223.  The applicant Government submitted that the South Ossetian forces had illegally detained 160 civilians (mostly women and elderly people) for approximately fifteen days (they had all been released on 27 August 2008) in indecent conditions, and that some of the detainees had also been ill‑treated. They alleged that this amounted to a violation of Articles 3 and 5 of the Convention, which provide:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court;

(b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

1.     The parties’ submissions

224.  The applicant Government submitted that the Russian and South Ossetian forces had illegally detained at least 160 Georgian civilians (mostly women and elderly people) in degrading conditions for approximately fifteen days (they were all released on 27 August 2008), some of whom had been subjected to ill-treatment.

They submitted in particular that the Russian and South Ossetian forces had arrested at least 160 Georgian civilians who had remained in South Ossetia or in the villages along the administrative border. They had mostly been elderly and the overwhelming majority had been detained after the cessation of hostilities. Most had been held for approximately two weeks in the basement of the de facto “Ministry of Internal Affairs” building in Tskhinvali in conditions described by Human Rights Watch as “inhuman and degrading”. They had been frequently subjected to ill-treatment, including beatings and mock executions. All detainees had been held in overcrowded conditions, with little food and no clean water, no electricity, nowhere to sleep other than the floor and with insufficient toilet facilities. Many had been subjected to verbal and physical abuse, and some had been forced to work in the streets of Tskhinvali collecting corpses and burying them in mass graves.

There was clear and direct eyewitness testimony establishing the involvement of Russian forces and authorities in the arrest and detention of these civilians and in their ill-treatment both during August 2008 and afterwards.

Based on the evidence submitted with these observations, the applicant Government invited the Court to conclude that the Russian Federation had implemented and continued to implement an administrative practice of causing or permitting the arbitrary detention, and serious and sustained ill‑treatment, of civilian detainees, in violation of Articles 3 and 5 of the Convention and the applicable rules of international humanitarian law.

225.  The respondent Government replied that the Russian Federation had not been involved and had exercised no control over the premises or buildings concerned. As Russian soldiers had not been involved in the running of the detention centre there was no proper basis for attributing liability to the Russian Federation for the detention of Georgian civilians.

In any event the actions of the South Ossetian authorities, when viewed against the background of the conflict, could not fairly be criticised: Georgia’s attack on Tskhinvali and the atrocities committed by its armed forces had unleashed a wave of anger among the Ossetian population and a desire amongst some individuals to exact revenge on Georgians. The South Ossetian authorities had therefore detained many Georgians to protect them from acts of revenge. It was grotesque for the applicant Government to complain about the conditions of the detainees in the detention centre. The truth was that because of the massive destruction caused by Georgia’s attack on Tskhinvali, and the resultant breakdown in local civil institutions, there had been nowhere better safely and securely to house the detainees. That situation appeared to have been recognised by Mr Hammarberg, the Commissioner for Human Rights of the Council of Europe, who in his visits to the detention centre had never raised any concerns about the conditions of the detainees. Given the massive destruction of Tskhinvali and the breakdown in civil institutions, it had not been unreasonable to expect able‑bodied young detainees to clean the streets, and thereby to join in the collective civil effort to get Tskhinvali back on its feet, get supplies in and improve public health.

2.     Third-party comments

226.  The Human Rights Centre of the University of Essex submitted that where detention was effected during the course of an international armed conflict, the grounds of detention were determined by the law of armed conflict, together with the general system (not necessarily the detail) of review of detention and the circumstances in which detention must end. On that basis, members of the opposing armed forces could be detained as prisoners of war[28]. Civilians could only be detained on imperative grounds of security, whether in occupied territory or not[29]. Their detention had to be reviewed by a board at six monthly intervals[30]. The details of their treatment and their rights in the review process were regulated by a mixture of the law of armed conflict and human rights law.

3.     Summary of the relevant evidence
   1.    Written evidence
      1.    Treatment of civilian detainees

227.  The relevant part of the Human Rights Watch report “Up in Flames” (pp. 170-82) reads:

“As Russian forces began to occupy South Ossetia on August 8 and 9, South Ossetian forces travelled with them or followed them into ethnic Georgian villages in South Ossetia and then into Gori and Kareli districts. Most of the able bodied and younger residents had fled just before the start of hostilities or in the initial days of fighting. Most of the residents who remained in the villages had chosen to stay behind to look after their homes and property or were unable to flee. Ossetian forces, at times together with Russian forces, detained some of the residents they found remaining in these villages, particularly in the ethnic Georgian villages of South Ossetia; in most cases, detentions took place in the context of the campaign of looting and destruction described above. Detainees told Human Rights Watch that they were not given reasons for their detention and did not have access to lawyers or any opportunity to challenge their detention.

As Russian and Ossetian forces entered Georgian villages in South Ossetia and the Gori district, they detained at least 159 people, primarily ethnic Georgians as well as at least one Ossetian and one ethnic Russian married to an ethnic Georgian. Forty-five of the detained were women. At least 76 were age 60 or older, and at least 17 were age 80 or older. There was one child, a boy, about eight years old. Human Rights Watch interviewed 29 of the detained, all post-release. Many detainees described ill‑treatment during detention, during transfer to custody, and in custody. Most detainees were held in the basement of the South Ossetian Ministry of Interior building in Tskhinvali for approximately two weeks in conditions that amounted to degrading treatment. Some of these detainees were forced to work clearing the Tskhinvali streets of decomposing bodies of Georgian soldiers, and debris. At least one man was executed while in Ossetian custody during his transfer to the Ministry of Interior. All of these actions are grave breaches of the Geneva Conventions and amount to war crimes. To the extent that Russia exercised effective control in the territory where these detentions took place, the Russian government is liable for these acts, which also amount to violations of its human rights obligations under the ICCPR and the ECHR.

In some instances, Russian forces directly participated in the detention of ethnic Georgians, and detainees held in the Ministry of Interior reported being interrogated by people who introduced themselves as members of Russian forces. ...

...

All of the detainees interviewed by Human Rights Watch described appalling conditions of detention in small, overcrowded basement cells of the South Ossetian Ministry of Interior building in Tskhinvali. Many detainees described degrading treatment, particularly upon arrival at the facility. Material conditions in Tskhinvali at the time of these detentions were dire: the city had no electricity, very little food, and very little water. Irrespective of these conditions, Russian and Ossetian authorities had an obligation to provide humane conditions of detention in accordance with international standards. Ill-treatment and willfully causing great suffering or serious injury to body or health constitute war crimes. Several detainees told Human Rights Watch that Russian Federation officials were present at certain times at the Ministry of Interior during their detention.