On July 9^th, 2025, the Grand Chamber of the European Court of Human Rights (ECtHR) in Ukraine and the Netherlands v Russia clarified several intriguing questions. Scholars like Marko Milanovic consider the Judgement (merits) as ‘As good as it gets (Almost)’.  The Judgement broadened the jurisdictional scope of the European Convention on Human Rights (Convention) and the standard of attribution, ie, the conduct of pro-Russian separatists from 2014 is attributed to Russia, which implies that the act of a de facto organ with complete dependence and control on the State is attributed to that State, thereby consolidating the observations of ICJ in Nicaragua and the Bosnian Genocide.   Additionally, clarity was rendered on jus ad bellum (the law governing the use of force) and its wider implications on human rights. In this post, I map the court’s treatment of the relationship between International Human Rights Law (IHRL) vis-à-vis International Humanitarian Law (IHL). The findings are significant, as the court (including the ICJ) has grappled with this issue since the convergence of both regimes. The attitude of the Court indicates a shift towards norm coordination over norm priority in line with contemporary practice.

Treatment of IHL Question

In situations of armed conflict, the scholarship is nestled between the principle of lex specialis and the principle of complementarity (co-application).  Lex specialis favours the application of specialised rules of IHL, whereas complementarity favours the co-application of IHL and IHRL.

The ICJ, for instance, has endorsed both these frameworks. The Wall Advisory opinion [105] backed IHL as lex specialis, whereas in DRC v Uganda [180], it abandoned the lex specialis in favour of complementarity. In the words of the ICJ, “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration” [216]. The Grand Chamber’s ruling makes it evident that IHL is used as an interpretative tool to gauge the scope of the Convention in terms of human rights guarantees. I reckon this jurisprudential development indicates that human rights, which was traditionally conceived as a self-contained or specialised regime, is mindful of the development in other regimes; no wonder the Grand Chamber observed that, “its duty to interpret the Convention in the light of the rules set out in Article 31 § 3 of the 1969 Vienna Convention on the Law of Treaties and so far as possible in harmony with other rules of international law of which it formed part, including IHL”  [22]. Hence, the Grand Chamber abandoned lex specialis, barring scenarios in the absence of derogation under Article 15 of the Convention, as the provisions might conflict with one another.

Diminishing Relevance of Lex Specialis

The Grand Chamber’s Judgement clarified the fluctuating relationship between IHRL and IHL. This is timely because, as Prof. Yuval Shany aptly puts it, “[T]he instability of existing law and practice relating to co-application caused by the aforementioned two tensions is at the root of efforts to move beyond the lex specialis framework.” The Grand Chamber has echoed this sentiment; also, lex specialis can pose a unique set of challenges. In the context of IHL and IHRL, it is difficult to locate which regime constitutes lex specialis, as lex specialis comes into play in cases of incompatible norms. In certain scenarios, IHRL provides more nuanced conduct of regulation than IHL in situations of armed conflict or occupation. For example, in the Wall Advisory opinion, Israel’s construction of the wall according to the ICJ violated the panoply of IHRL norms in the Occupied Palestinian Territories (OPT); these violations had no parallel in the IHL regime. Similarly, in situations involving arbitrary deprivation of liberty or non-refoulement, the concurrent application of IHL and IHRL would offer comprehensive protection by filling the gap left by the other regime.  Therefore, in a situation of armed conflict, the co-application would offer a higher standard of protection for the victim, rendering IHRL as a preferred regime geared towards pro hominem interpretation. This position aligns with the views of the Human Rights Committee (HRCtee) General Comment 35, where it was observed that Article 9 of the Covenant applies to situations of armed conflict to which rules of IHL are applicable; in other words, rules of IHL are relevant in interpreting Article 9 of the Covenant. Moreover, complementarity means excluding the controversial ‘context of chaos’ embraced in Georgia v Russia (II), which plausibly abandoned the Convention because of the lack of effective control.

Conclusion

The Grand Chamber brings to the fore the diminishing relevance of the lex specialis framework; instead, the emphasis is on complementarity. However, there may be backlashes from the States, Judges, and scholars who may view IHL as lex specialis because of the inherent distinction in these regimes. The Grand Chamber giving impetus to norm coordination over norm priority would be relevant for the comprehensive protection of victims. This does not come as a surprise, as the ICJ, which introduced the lex specialis framework, has deserted it.

Social Media: A Double-Edged Sword in Warfare

In today’s digital age, social media has become an indispensable tool, capable of both uniting individuals behind a cause and disseminating disinformation. Throughout Russia’s ongoing conflict with Ukraine, platforms like Telegram have facilitated communication, coordinated actions, and informed the public. However, platforms also act as conduits for propaganda and misinformation, influencing public opinion and potentially exacerbating conflicts.

Telegram, in particular, has attracted attention due to its extensive user base and relatively lenient regulation. Its encryption capabilities and the facility to create large groups make it an ideal medium for secure communications. However, these features also present significant challenges in controlling the spread of harmful content, including hate speech, propaganda, and incitements to violence.

The Public’s Growing Focus: From Fraud to Warfare

With the public increasingly discussing the role of platforms in organised crime and fraud, especially in the context of Durov’s case, a new and pressing issue is set to emerge: what can be done about the role of social media platforms in contemporary wars? Naturally, the implications of Durov’s arrest extend beyond fraud and organised crime; they underscore broader concerns about the responsibilities of social media companies amidst international conflicts.

Legal Implications of Durov’s Arrest

Durov’s arrest foregrounds crucial questions regarding the accountability of social media companies for the content they host. Under international criminal law, specifically under the Rome Statute of the International Criminal Court, aiding and abetting a crime with knowledge of its occurrence constitutes a criminal offence. This can mean that if platforms like Telegram are found to have knowingly facilitated crimes of warfare or other serious offences, they could be held accountable under international law.

Telegram’s Role in the Ukraine War

In Ukraine, Telegram has served as both a tool for humanitarian support and a platform for Russian propaganda. The Ukrainian government and volunteer groups have utilised Telegram for coordinating humanitarian aid and evacuations, highlighting its utility in crisis situations. Conversely, Russian-backed entities have used Telegram to spread disinformation and coordinate actions against Ukrainian interests.

Future Steps for Global Accountability

The arrest of Pavel Durov could serve as a catalyst for international bodies to reassess the role of social media in conflict and governance and address some of the difficult questions raised above. The worrying role of social media in warfare highlights the urgent need for an international framework that delineates the responsibilities of social media platforms in conflict zones. Such frameworks could involve clearer guidelines on content moderation, the role of encryption in protecting user privacy, and the legal obligations of social media companies under international law.

Moreover, the role of social media in warfare calls for a broader discussion about the governance of these companies. When executives wield significant control over platforms that play key roles in global events, the question of personal responsibility becomes even more pressing. Establishing accountability is not just about addressing the content that spreads on these platforms but also about scrutinising the business structures that enable or prevent such content from flourishing.

Conclusion

The role of social media in international conflicts is set to become a critical issue in the public consciousness. Durov’s case presents an opportunity to prompt a reevaluation of how these platforms are used and regulated worldwide. For global justice and security, establishing a balance between freedom of expression and preventing the facilitation of crimes through social media is imperative. This balance is crucial not only for the integrity of international law but also for protecting democratic values and human rights in the digital age.

Durov’s arrest may be the first step in a broader movement towards holding social media executives accountable—not just for national crimes, but for their platforms’ roles in international crimes, including warfare and crimes against humanity. The world is watching, and the subsequent collective steps could shape the future of global social media governance.

Understanding Encryption and E2EE

Encryption converts plain-text data into unintelligible forms for anyone else except the intended recipient, establishing confidentiality and preserving data integrity. David Kaye, the UN Special Rapporteur notes that encryption is necessary for the protection of key human rights by creating a ‘zone of privacy’, which further protects the freedom of opinion and expression. Hence, encryption is protected under various international conventions, such as the ICCPR (Articles 17 & 19), the UDHR (Articles 12 & 19) and the ECHR (Articles 8 & 10).

While there exist various kinds of encryption, E2EE particularly stands out for its unique nature of preventing even the host platform from accessing the data between the sender and receiver. Indeed, as per the UN, E2EE is ‘the most basic building block’ for privacy on modern messaging applications, such as WhatsApp, Telegram, Instagram, etc. E2EE’s uniqueness makes it technologically impossible for messaging platforms to comply with law enforcement demands (impossibilium nulla obligatio est), given that tracing the originator of even a single message would require disabling E2EE for all the users on that platform.

Podchasov vs. Russia – A Brief Overview

E2EE’s distinctiveness has opened a new chapter in the “Privacy vs. National Security” debate, prompting a legislative trend mandating E2EE breakdown on messaging platforms across various nations, such as the UK, the EU, and the USA. Joining this legislative trend is Russia, which via Section 10.1(4.1) of the Russian Information Technology Act, mandated digital communication providers to store all user data, including content, and furnish law enforcement (the Federal Security Serve (“FSB”)) with decryption capabilities – for specified durations. Telegram opposed this order arguing that ‘decoding of communications’ of specified users would create a backdoor jeopardising encryption for all 700 million monthly active users, given the unique nature of E2EE.

The Court in Podchasov evaluated three distinct yet interconnected infringements upon the rights of the applicant. Firstly, there was the overarching issue of bulk retention of personal communication data. Secondly, the Court scrutinized the FSB’s ability to access such data with minimal judicial oversight. Thirdly, a more targeted concern involved the accessibility of end-to-end encrypted communications, coupled with the obligation to divulge decryption keys.

Protection of E2EE under Freedom of Opinion and Expression – A Missed Opportunity?

This article primarily centres on the third issue, specifically the breakdown of E2EE. The Court observed that the breakdown of E2EE would extend beyond targeting specific individuals, affecting all users inclusively, regardless of any perceived threats [57, 77]. Introducing backdoors could facilitate indiscriminate surveillance practices, posing vulnerabilities to exploitation by illicit networks and fundamentally compromising the overall cybersecurity of electronic communications for all users [65, 77]. Furthermore, the Court noted various viable alternatives to the breakdown of E2EE, making the Russian legislation disproportionate to the legitimate aims it pursued [78, 79].

While scholars have critiqued the judgment for its procedural fetishism, an overlooked point is the Court’s singular reliance on the right to privacy (Article 8, ECHR) to prevent the breakdown of E2EE. In our view, the Court failed to sufficiently consider the interrelation between E2EE and the freedom of expression and opinion (Article 10, ECHR). David Kaye noted that encryption enables privacy to act as a gateway for freedom of opinion and expression, protecting the same from arbitrary and unlawful interference. Recognising the protection of E2EE under the right to freedom of opinion and expression provides it with an extra layer of legal protection, given that its threshold of violation differs from the right to privacy.

Conclusion – A Guiding Light

Regardless of any criticism, it is undeniable that Podchasov is a strong statement against the breakdown of E2EE globally. As noted earlier, there have been legislative efforts around the world to end E2EE, such as the EU’s CSAM Proposal, the UK’s Online Safety Act 2023, Australia’s (Assistance and Access) Act 2018, the USA’s EARN IT Act, etc. The said proposals have been met with fierce criticism, with some already being challenged in the respective nation’s courts. Being the first of its kind on an international level, Podchasov holds great potential in serving as a guiding light for domestic courts globally, in upholding the legality of E2EE – for the sake of preserving the human rights to privacy and the freedom of opinion and expression.

In response to the aggression, the United Nations General Assembly recognised the need for an international mechanism to assist Ukraine in obtaining reparations for damages caused by the Russian Federation’s wrongful acts. It recommended creating a register to document evidence and claims of damage, and to coordinate evidence gathering. As a result, the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine (the Register) was established on 12 May 2023 by the Council of Europe’s Committee of Ministers. The Register was launched on 2 April 2024, initially focusing on claims related to damages or destruction of residential property. It is anticipated that 6-8 million claims within 45 categories will be submitted overall. While operations of the Register are being discussed widely, this post succinctly delves into two specific issues: the potential funding sources for the compensatory mechanism, and the time restrictions regarding the damage covered.

What are the potential funding sources for the compensatory mechanism?

One potential avenue would be to repurpose Russian Central Bank assets currently frozen worldwide. While the transition from the freezing to the confiscation of these assets has been extensively discussed from diverse perspectives, G7 leaders have proposed providing Ukraine with a loan backed by future income generated from these frozen assets. The modalities of this loan, including its intended purpose, are yet to be defined. However, as Ukraine has already stated, the proposed USD 50 billion loan would address its most pressing needs in 2025 and enhance its resilience in the midst of a full-scale war. Arguably, this leaves no room for the amount under the loan to fund the recovery of damage recorded by the Register. Indeed, funds received through the loan might not necessarily be the most appropriate source for recovering damages caused by the aggressive war.

However, it should be noted that the loan solution proposed by the G7 would not be incompatible with the seizing of frozen assets by specific countries in order to fund Ukraine’s compensation mechanism. For instance, the recently enacted REPO Act in the US allows the President to confiscate Russian sovereign assets under US jurisdiction to assist Ukraine in its defense against Russia’s aggressive war, and to compensate Ukraine and its people for damages caused by Russia. Estonia has recently enacted a law allowing the use of assets belonging to individuals in Russia, frozen under international sanctions, to compensate Ukraine for war damages. In sum, a victim-centred approach to the Register must be adopted, ensuring that human rights violations are redressed. This must remain a priority among the various purposes for which the potential funds might be used.

Why does the Register exclude coverage of damage occurred before February 2022?

As defined by Article 1.1 of its Statute, the Register shall serve as a record of damage, loss, or injury caused on or after 24 February 2022. But why was the Register limited to events occurring from February 2022? Why does not cover damage caused by Russian aggression from 2014 to 2022? According to the Register’s Executive Director, the explanation is that ‘unfortunately, the global community did not recognize the events since 2014 as an act of aggression’ until the UN General Assembly adopted its resolution in March 2022. In other words, the time limitation is justified by political considerations: limiting eligibility to claims after February 2022 facilitated the swift establishment and launch of the Register within an impressively short period of time.

Does this mean that claims for events from 2014 to 2022 will be excluded from consideration by the potential claims commission? No, it does not. The Register is only the first element in the compensatory mechanism, with the other two being the claims commission and the fund, as reflected upon above. The modalities of the claims commission are not defined yet and are currently being negotiated between Ukraine and its partners. Within these negotiations on claims commission’s modalities, there is hope that space will be found for potential redress of human rights violations that occurred before February 2022.

In essence, the wheels of justice turn slowly but grind exceedingly fine. Establishing the Register seems to be setting the framework for this wheel of justice. However, whether this wheel will grind finely, swiftly, or at all largely depends on whether sufficient funds will be available to compensate the affected individuals, legal entities, and the State of Ukraine.

Read more:

• One year on, US journalist Evan Gershkovich remains a state hostage in Russia.
• Ukraine v Russian Federation – ICJ Continues to Struggle with the Grounds of Racial Discrimination.
• Museums and Missiles: Russia’s Attack on Ukrainian Heritage Highlights the Need to Protect Cultural Rights.
• Balancing Acts: The Intricacies of Enforcing ICC Arrest Warrants Against Heads of State.

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres…” Lawrence v Texas, US Supreme Court, 2003

As of today, over 60 countries around the world still criminalise consensual same-sex sexual conduct, out of which 11 countries – Afghanistan, Brunei Darussalam, Iran, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, the United Arab Emirates and Yemen – retain the death penalty as a possible punishment for same-sex sexual conduct. Further, limited access to legal aid, as well as bias within the criminal justice system, has a detrimental impact on LGBTIQ people’s ability to be guaranteed a fair trial when they face legal charges. In the recent past, LGBTIQ rights defenders have faced numerous crackdowns, enabled by draconian laws that contribute to systemic discrimination and violence against the LGBTIQ community.

In the USA, there has been a worrying pattern where anti-transgender legislation has been enacted under the pretence of protecting children/youth; in 2024 alone, 31 anti-transgender bills have passed. These blatantly discriminatory laws have sought to prohibit access to gender affirming healthcare for transgender youth and the use of bathrooms by transgender people according to their self-identified gender identity. The American Civil Liberties Union has mapped over 515 anti-LGBTIQ bills at the State Legislature level in 2024. These bills encompass a myriad of issues, including barriers to self-determined legal gender recognition, healthcare restrictions, bans on freedom of expression, public accommodation bans, and an overall weakening of civil rights protections.

In Russia, the severe crackdown on civil society continues to worsen with the passing of anti-LGBTIQ laws that include harsh penalties for those promoting ‘non-traditional sexual relations and/or preferences’. In November 2023, the Russian Supreme Court created a dangerous precedent by branding the international LGBT movement as ‘extremist’, stigmatising LGBTIQ people and their allies, and placing many lives in danger. Such laws construct and perpetuate harmful societal attitudes and enable a hostile environment for LGBTIQ rights defenders. On similar lines, Kyrgyzstan enacted a new law to crack down on LGBTIQ organisations by enforcing a ban on information that ‘denounces family and traditional societal values, promotes non-traditional sexual relations and initiates disrespect towards parents or other family members’. Last year, Jordan approved a draconian cybercrime law that seeks to regulate free expression and contains vague provisions that could target marginalised groups including LGBTIQ individuals.

In April 2024, the Ugandan Constitutional Court disappointingly upheld the provisions of the deeply homophobic and transphobic Anti-Homosexuality Act. The law has far-reaching language and consequences: it maintains the death penalty for consensual same-sex sexual relations, attacks all forms of allyship, and demonstrates absolute State power over LGBTIQ lives. Similarly, in February, Ghana’s legislative house passed the Human Sexual Rights and Family Values Act, with broad arbitrary language, exerting coercive control over LGBTIQ lives, and asserting a State interest in ‘protecting the gender binary’ and prohibiting LGBTIQ-related activism. In April, Iraq passed a law that imposes severe penalties for engaging in same-sex sexual relations and for individuals who ‘promote’ homosexuality, effectively stifling freedom of speech and expression and posing a direct threat to those advocating for LGBTIQ people’s rights.

These laws allow law enforcement officials as well as non-State actors to target individuals, invade their private residences or workplaces, and engage in hostile behaviour or aggravated assault, including torture, with few or no consequences. Against this backdrop of legal vulnerability and  hostile political conditions, LGBTIQ rights organisations often struggle to maintain their operations. These laws and allied practices act as a shield for authoritarian States, enabling them to avoid accountability for discrimination and serious human rights violations and to circumvent their duties to protect fundamental human rights of their people. It is more important than ever for human rights defenders and allies around the world, regardless of their sexual orientation or gender identity, to resist collectively against these harmful narratives and work towards the protection and promotion of LGBTIQ people’s human rights everywhere.

Want to learn more?

• The License to Jeopardise: The LGBTQ Rights ‘Movement’ in Russia
• LGBTQIA+ Rights under siege: Uganda’s Anti-Homosexuality Act 2023
• Resisting the Legal Assault on Transgender and Gender Non-binary Students
• The Fundamental Rights of Trans and Nonbinary Minors in Schools: Challenges in Canada

As discussed in an earlier post at the time of Gershkovich’s arrest, as well as having a significant chilling effect for press freedoms in Russia, this case is one which should be understood as an instance of state hostage-taking. Under international law, the principal treaty on hostage-taking is the International Convention Against the Taking of Hostages 1979 (Hostages Convention), which defines the relevant elements of the offence of hostage-taking as occurring where any person:

“seizes or detains … another person in order to compel a third party … to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage”

International and domestic jurisprudence has drawn on the Convention definition to find that analogous hostage-taking offences do not require the intention to compel to be communicated to the third party, but may be inferred from other evidence (see decisions of the Special Court for Sierra Leone, Appeal Chamber in Prosecutor v Sesay, Kallon and Gbao (2009) [576]-[586]; US District Court for the District of Colombia in Simpson v Socialist People’s Libyan Arab Jamahiriya (2006) [360]).

From the outset of Gershkovich’s case, the intention to compel a third party – namely, the United States – has been implicit in the surrounding circumstances, amid declining relations following Russia’s full-scale invasion of Ukraine in 2022. His detention forms part of an emerging pattern of conspicuous arrests of US nationals in recent years, including those of basketball player Brittany Griner in February 2022 (later exchanged for Russian arms dealer Viktor Bout), Radio Free Europe/Radio Liberty journalist Alsu Kurmasheva in October 2023, and dual national Ksenia Karelina in January 2024.

Yet over the course of the last year, the intention to compel has also been made explicit, with the conditions of Gershkovich’s release being openly discussed by the head of state. Speaking in an interview in February, President Vladimir Putin stated: “I do not rule out that … Mr. Gershkovich may return to his motherland. We are ready to talk … but we have to come to an agreement.” Putin alluded to ongoing negotiations about the case, saying: “There are certain conditions that are being discussed between special services. I believe an agreement can be reached.”

Further removing any doubt that this case should be seen as one of state hostage-taking are reports of a specific proposed prisoner swap. Prior to the death of opposition leader Alexei Navalny in a Siberian prison colony in February, an apparent deal was being developed which could have seen the exchange of Navalny, Gershkovich, and another US national, Paul Whelan. Reports suggest that the condition of their release was the return of Vadim Krasikov, a Russian national currently imprisoned in Germany for the assassination of a former Chechen rebel in Berlin in 2019. In light of Navalny’s death, negotiations now appear to have stalled.

State hostage-taking is a tactic which is now gaining increasing recognition at the international level, with Beatrice Lau (2022) describing it as using “the guise of national law as a means to coerce the foreign policy of another state.” In Gershkovich’s case, while the coming year may see him face trial and conviction, his trial will not be a meaningful one. If, in practical terms, there is unlikely to be any resolution of his case via international law, the Hostages Convention can at least make clear the nature of the offence, beyond the appearances of the domestic legal process.

This warrant, issued under Article 58 of the Rome Statute, means that the Russian Officials are accused of war crimes and are subject to arrest if they travel to a State party of the Statute. However, such an arrest is unlikely due to a variety of legal bottlenecks, political implications and practical challenges. 

Firstly, the Rome Statute has been drafted to limit breaches of State sovereignty. The Court is not empowered to enforce action on its own without the relevant State’s cooperation (Article 103). The obligation of executing arrest warrants is placed upon the 123 State parties, which the ICC is entirely relying on. Non-State parties and other international institutions are not obliged to cooperate with any request for arrest and surrender by the ICC. That is unless it is based on an ad hoc agreement, arrangement or other basis such as a Security Council resolution. Moreover, the ICC does not possess police power or prison facilities and is completely reliant on local law enforcement of State parties to implement arrest warrants. 

In the case of Russia and Ukraine, neither are parties to the Rome Statute, creating significant challenges in issuing or enforcing a warrant against Russia’s Head of State. Although Article 13(b) enables the United Nations Security Council to refer matters involving non-State parties to the ICC, such a resolution could not be adopted as Russia, being a permanent member of the Security Council, holds veto power. Therefore, the warrants were issued following Articles 13(c) and 15 of the Statute on an application by the Prosecutor based on evidence collected and analysed by the Office of the Prosecutor. 

When considering the warrant against Russia’s President, its enforcement is unlikely because he can only be arrested if he travels to a State party which is willing to arrest him, and he is unlikely to expose himself to such a risk. Past encounters involving the former Sudanese President, where States refused to arrest him, demonstrate the reluctance of many countries to arrest a sitting Head of State, even when they are legally duty-bound to do so under Article 89(1) of the Rome Statute. 

Secondly, the political implications on bilateral relations between an arresting State and the implicated State is another challenge. Developing States are particularly reluctant to submit to such requests by the ICC because they depend on economic and other assistance from other States – implementing warrants issued against powerful States will result in serious political repercussions including the possible loss of foreign assistance. 

In the present case, it becomes apparent that the implications are magnified as Russia is a superpower in international politics and possesses nuclear arms. Russia has already commenced a criminal case against the ICC Prosecutor and Judges involved in issuing the warrant, issued threats of attacking The Hague (with missiles), and warned that any country arresting President Putin would amount to a “declaration of war”. Accordingly, military pressure and the threat of political and economic sanctions prevent smaller States from enforcing warrants against individuals from powerful States. 

The ICC thus lacks tools to ensure State cooperation, and it does not have a mechanism to deal with non-compliance, nor the means to provide minimum protections to vulnerable State parties when executing ICC arrest warrants against powerful States. Article 87(7) of the Statute provides for the ICC to refer matters to the Assembly of States Parties or the Security Council when a State Party does not comply with a request to cooperate. This serves as a remedy of some sort, but has, in the past, failed to achieve cooperation from the States concerned. 

The lack of an enforcement mechanism and the power imbalance among States hinder efforts at ensuring international accountability, especially now when a warrant against a permanent member of the Security Council has been issued for the first time. Moving forward, the ICC must develop an internal mechanism that reduces its dependence on individual States for effective functioning.

Russia’s Ministry of Justice had filed a motion before the Supreme Court, calling for the Court to declare the LGBTQ movement an ‘extremist organisation’ and ban its operation in the country. The Court, accepting the government’s plea, declared the LGBTQ movement extremist and allowed the government to take steps to penalise any such activism. The ruling thus brings such activities within the ambit of the Russian Criminal Code. Under the Code, participating in or financing an extremist organisation attracts up to 12 years imprisonment. If an individual is proven to be guilty of displaying symbols associated with such groups, they could be sentenced to a maximum of 15 days in detention for the first violation and up to four years for subsequent violations. Further, authorities may include individuals suspected of involvement with an extremist organisation in their countrywide ‘list of extremists’, and accordingly freeze their bank accounts. The decision therefore not only deals a daunting blow to those actively taking part in LGBT organisations, but also affects those providing indirect support. Indeed, the term ‘international LGBTQ movement’ is extremely vague and broad, and could allow authorities to prosecute anyone for any activities related to LGBTQ rights or any public association with the LGBTQ community.

This is not the first time such a position has been taken by a governmental body in Russia. In December 2022, the Duma extended the scope of Russia’s ‘gay propaganda’ law, forbidding public information about LGBTQ people and the public portrayal of non-heterosexual relations. This Supreme Court decision thus forms part of a wider pattern of Russia’s state-sponsored homophobia and restrictions of LGBTQ organisations and activism.

Russia is a party to most major human rights conventions, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (UNCAT). However, the recent decision is in conflict with Russia’s obligations under these conventions. In particular, the ruling permits blanket restrictions that would violate the rights to freedom of expression (Article 19 ICCPR), assembly (Article 21 ICCPR) and association (Article 22 ICCPR). Moreover, the restrictions, targeting the LGBTQ community, are discriminatory on the basis of sexual orientation and gender identity, contrary to Articles 2 and 26 ICCPR. The United Nations Human Rights Committee (HRC) has previously found that Russian restrictions on public activities and information relating to the LGBTQ community violate Russia’s obligations under the ICCPR: in Alekseev v Russia, the HRC ruled that Russia’s repeated ban on pride demonstrations violated the right to peaceful assembly in Article 21. In Fedotova v Russia and Nepomnyaschiy v Russia, the HRC also held that regional laws prohibiting ‘propaganda of homosexuality’ violated the right to freedom of expression (Article 19) and were discriminatory (in violation of Article 26), as they expressly drew a distinction based on sexual orientation and gender identity. The Russian Supreme Court’s ruling, restricting the activities of LGBTQ organisations, is in clear contravention of these Articles and HRC decisions.

Want to learn more?

• Read: https://ohrh.law.ox.ac.uk/a-small-success-for-lgbt-rights-in-russia/ 
• Read: https://ohrh.law.ox.ac.uk/lgbtqia-rights-under-siege-ugandas-anti-homosexuality-act-2023/
• Read: https://ohrh.law.ox.ac.uk/ugandas-draconian-anti-homosexuality-bill-2023/

Nearly sixty years ago, the International Covenant on Economic, Social and Cultural Rights (ICESCR) asserted that everyone has the right to take part in “cultural life,” echoing Article 27 of the Universal Declaration of Human Rights. Over time, this has been supplemented by other instruments including the 1954 Hague Convention, which requires states to protect cultural property in times of war, and the Convention on Intangible Cultural Heritage. The latter calls on states to safeguard the performing arts and other practices which provide communities with a “sense of identity and continuity.” However, during his state address, Russia’s president denied that Ukraine exists as a nation, insisting that its people lack their own history and culture. Russian forces have subsequently attempted to realise these claims by destroying the very places where Ukrainians sang, danced, and celebrated their shared history.

Days after Ukraine came under attack, Russian forces bombed the Ivankiv History Museum, which housed 25 works by the acclaimed artist Maria Prymachenko. The aerial assault soon moved to Mariupol, where Russian missiles struck the Donetsk drama theater, killing over a dozen civilians. Alongside bombed out buildings and broken glass, Russian soldiers left a trail of stolen artefacts. More than 2,000 artworks were taken from museums in Mariupol, including ancient icons and treasured paintings. Eight months later, soldiers pillaged Kherson, seizing artefacts from the city’s cathedral, national archive, and two museums. Throughout these attacks, cultural officials have sought to protect Ukrainians’ cultural heritage, partnering with private companies and Polish organisations to evacuate collections from conflict zones. Even so, it remains unclear how many stolen items have been irrevocably lost or damaged. The destruction of Ukrainians’ heritage threatens to erase tangible pieces of their history, and ultimately their identity as a people. Cultural sites facilitate the transmission of knowledge from one generation to the next, connecting people to their past as they envision their future. By impeding this process, Russian forces have violated another set of rights that fall under Articles 1 and 13 of the ICESCR.

The freedom to participate in cultural life is critical to enjoying other human rights, from education to self-determination. After the ICESCR went into effect, its committee explained that the right to education is “intrinsically linked” to cultural protection. Communities learn about themselves through their culture, and they use education to pass down languages, customs, and other traditions. Although Ukrainians are resisting cultural erasure and continue to produce new works of art and literature, the invasion has prevented them from accessing key sites of historical and cultural knowledge. Furthermore, Article 1(1) of the ICESCR states that “all peoples” should be able to pursue their “cultural development” by virtue of their right to self-determination. When the war began, many officials referenced this section of the Covenant, including the UN Special Rapporteur on cultural rights. Xanthaki asserted that Russia violated Ukrainians’ right to self-determination by refusing to recognise their cultural identity and using that denial to justify the invasion.

Russia’s attack on Ukrainian culture not only breaches human rights law, but amounts to a war crime in its own right. The Rome Statute, which established the International Criminal Court (ICC) in 2002, prohibits the “destruction and appropriation of property, not justified by military necessity.” Although Russia is not party to the Rome Statute, the Council of Europe and the United States have argued that senior officials should be nonetheless prosecuted via special tribunal. Evidence from Ukraine’s cultural sites could thus play a pivotal role in future trials. Since Ukrainian forces have reclaimed more territory, international NGOs have been able to visit damaged sites that were previously only visible via satellite. Their findings confirm that Russia has continued to wantonly destroy Ukrainians’ cultural heritage. Holding these perpetrators accountable sends an important message that Ukraine’s cultural identity is valuable and deserving of protection, while also highlighting that the defense of cultural rights in war remains a critical issue for the international human rights community.

Despite this, and although the Secretary of the Council of National Security and Defence, Oleksiy Danilov, has expressed that the Russian language must disappear from Ukraine, some local officials remain resistant. For example, the Mayor of Kharkiv has used Russian in his social media, leading to a charge of an administrative offence against him, initiated by the Commissioner for the Protection of the State Language (though this was later dropped by the Kyiv District Court of Kharkiv because of procedural issues). But such a case is not unique, and from time to time issues have arisen even from university professors continuing to use Russian, in contravention of legislative provisions which oblige officials and education to use the official language of Ukraine.

Following Constitutional provisions, the state language of Ukraine is the Ukrainian language (Article 10). It must therefore be used by state and municipal officials, barristers, and notary workers, as well as educators, medical workers, and workers of the state and municipal companies (under Article 9 of the Law On ensuring the functioning of the Ukrainian language as the state language). However, Article 10 also prescribes that free development, use, and protection of Russian and other languages of national minorities of Ukraine shall be guaranteed. This caveat is a Soviet atavism, which unfortunately was not changed in the Constitution upon Ukraine’s gaining independence. Following from this (under Article 53), the Constitution guarantees citizens belonging to national minorities the right to education in their native language, or the opportunity to study their native language at state-run educational establishments or national cultural societies.

Thus, under these paradoxical Constitutional provisions, which seem not relevant to the current situation (war with Russia), the free use of Russian in Ukraine is legally complex in some spheres. Moreover, such constitutional provisions cannot be changed or amended under conditions of martial law or a state of emergency (Article 157). Before the full-scale invasion, the provisions of the Law on ensuring the functioning of the Ukrainian language as the state language were challenged in 2021 in the Constitutional Court of Ukraine. Fifty-one Members of Parliament alleged that the law discriminated against Russian-speaking citizens, contravening provisions of the Ukrainian Constitution.

In reviewing the case, the Constitutional Court affirmed that knowing the Ukrainian language is the duty of every citizen of Ukraine but that each citizen is free to choose a language for private communication. The Court also held that although the Constitution singles out the Russian language as an example of a language of a national minority, this does not mean that the Constitution grants it privileged legal status. Another case was heard after 24 February 2022 and thus could take into account subsequent acts of Russian aggression. In this later case – concerning the statutory name of Religious Organizations – the Court stated that its judgment is given in the context of conditions of martial law owing to the Ukrainian people’s struggle against the Russian Federation’s aggression. Because of this context, the Court is bound to consider these factors in determining the legitimacy of state authorities’ measures. In consequence, it is to be predicted that in future constitutional challenges regarding the use of Russian in Ukraine, courts will pay heed to these conditions in making their findings with respect to certain minority languages’ place in Ukrainian society.

Want to learn more?

• Read: Hostage Diplomacy: Russia’s Detention of a US Journalist as State Hostage Taking
• Read: Prosecuting Putin for his Crime of Aggression Against Ukraine: Part One
• Read: Prosecuting Putin for his Crime of Aggression Against Ukraine: Part Two