When members of the international community decide that human rights are a matter of expediency and not law, we are all at risk, warns Herta Däubler-Gmelin.
Professor Herta Däubler-Gmelin teaches international and humanitarian law at Freie University in Berlin and is the former German justice minister.
Whether in the recent vote for the French Presidency, the 2016 presidential campaign in the United States, the UK Brexit vote or in other elections, citizens around the world are making a fundamental choice whether to turn inward to isolation or look outward and join with others in a community of nations.
Another venue in which this world-changing choice is unfolding concerns enforcement of judgments by the European Court of Human Rights – the international communal court created in 1959 to enforce human rights in Europe.
Since its inception, the European Court of Human Rights has issued more than 10,000 judgments, binding by treaty on signatories to the European Convention on Human Rights.
Those judgments have breathed life into the Convention and, in a significant development in international law, have over the past half-century led European nations to amend their domestic laws and administrative procedures to adhere to international norms of due process and fair trials, as well as other basic human rights.
But after decades of steady progress, something has gone wrong.
The very nations that most badly need to change their ways to fulfil the promise of international human rights norms have instead unilaterally decided, treaty or not, that they will simply ignore those European Court judgments that they do not like. This is a threat not only to human rights but to the very notion of an international community.
In April, during a debate in the Council of Europe’s Parliamentary Assembly (PACE), Pierre Yves L’Borgn, a French parliamentarian and rapporteur for the PACE Legal Affairs and Human Rights Committee, took the floor to address this problem.
Mr Yves L’Borgn noted in particular the case of Alexei Pichugin, a former Yukos Oil Company executive who has been imprisoned for 14 years and was subjected to a secret, closed-door trial in what is generally recognised to be a politically motivated and unsubstantiated “murder” and “attempted murder” case.
The European Court found that his fair trial rights had been violated and ordered a new trial. But Russia ignored that judgment and continues to hold Mr Pichugin in the notorious “Black Dolphin” prison – that is, when he is not being transferred to FSB facilities to be pressured to give evidence against his former Yukos bosses.
Mr Pichugin’s is a tragic case but he is not alone. On of his former Yukos colleagues, the company’s former general counsel, Vasily Alexanyan, died after Russian authorities ignored European Court judgments directing that he be provided with medical care while in detention.
Russia has become a serial offender of European Court judgments and even passed a law in December 2015 making compliance with international judgments optional. In April 2016, the Russian Constitutional court specifically applied this law to European Court judgments enforcing international human rights norms.
Russia may be the only ECHR signatory to pass a law effectively nullifying its authority, but it is not the only offender. Turkey, Poland, Moldova and others have selectively ignored scores of ECHR rulings over the past decade. It is a dangerous trend, as law selectively applied is not law at all.
The Council of Europe has taken up the report of L’Borgn’s Committee, which addresses the dire circumstances for human rights in Russia and other countries that are party to the European Convention on Human Rights.
This will be the ninth such report since 2000 discussing the problem of states that disregard human rights judgments with impunity. Europe and the world should take notice because when members of the community of nations determine that human rights are a matter of expediency and not law, we are all at risk.
The refusal to abide by European Court judgments is a canary in the coal mine for human rights – and for the sanctity of the signature of increasingly authoritarian nations like Russia, on human rights treaties.
The risks are only greater in a world where isolationism seems all too ready to take root. The world’s citizens, and democratic nations, ignore these warning signs at their peril.