1. Introduction
1. Since 24 February 2022, the
Russian Federation has been waging war against Ukraine, provoking thousands
of civilian casualties, displacing millions of people and devastating
the country. This act of aggression is launched by the leadership
of the Russian Federation in pursuit of its foreign and security
policy objectives, in violation of the Charter of the United Nations,
the Council of Europe Statute (ETS No. 1) and the Russian Federation’s
obligations and commitments as a member of the Organisation.
2. The Parliamentary Assembly should stand by the Ukrainian people,
upholding their right to live in an independent and sovereign State,
the territorial integrity of which is respected. The Assembly should
do everything in its power to obtain an immediate cessation of the
hostilities and contribute to tackling the humanitarian crisis caused
by the war.
3. Promptly reacting to the gravity of the events, on 25 February
2022, Tiny Kox, President of the Assembly, convened an Extraordinary
Session of the Assembly on 14-15 March 2022, an exceptional decision
which has been taken only twice in the history of our institution.
Members of the Assembly have been convened to hold an urgent debate
the consequences of the Russian Federation’s aggression against
Ukraine.
4. On the same day, in another historical decision, the Committee
of Ministers of the Council of Europe decided to suspend the representation
rights of the Russian Federation with immediate effect, pursuant
to Article 8 of the Council of Europe Statute. Subsequently, on
10 March, it asked the Assembly to provide its Opinion in relation
to the potential further recourse to Article 8 of the Statute, the
full text of which reads: “Any member of the Council of Europe which
has seriously violated Article 3 may be suspended from its rights
of representation and requested by the Committee of Ministers to
withdraw under Article 7. If such member does not comply with this
request, the Committee may decide that it has ceased to be a member
of the Council as from such date as the Committee may determine.”
5. The present report, prepared under urgent procedure, aims
primarily at responding to the Committee of Ministers’ request.
It presents arguments to help members of the Assembly adopt a well-thought-out
Opinion.
6. This report does not have the pretence to provide a detailed
description of the aggression against Ukraine nor an analysis of
its motives and far-reaching consequences. These, however, deserve
further examination by the Assembly, and will be addressed also
during its next part-session. Furthermore, this report does not
deal with defence issues, which are excluded from the Council of
Europe mandate according to its Statute.
7. It should be clear from the outset that Russians are Europeans
and belong to the Council of Europe fold. Whatever decision the
Committee of Ministers will reach in relation to potential further
recourse to Article 8 of the Statute, the Council of Europe should
preserve channels of dialogue and continue to offer a platform to
all those Russians who share its values.
2. The Russian Federation’s aggression
against Ukraine
8. On 24 February, President Vladimir
Putin launched “a special military operation” based on a request from
the heads of the self-proclaimed republics of Donetsk and Luhansk,
which he had recognised as “independent States” a few days earlier.
The Russian President justified the “operation” as a way to ensure what
he considered as the “denazification” and “denuclearisation’” of
Ukraine, to stop an alleged “genocide” in Eastern Ukraine, and to
put an end to the war which had started in 2014.
9. According to the Russian official narrative, the Russian Armed
Forces were targeting Ukraine’s military infrastructure with precision
strikes which were no threat to civilians,
and all civilian casualties
were provoked by Ukrainian forces who did not hesitate to use people
as human shields.
10. The “special military operation” turned out to be all-out
war. The figures unfortunately increase day by day but, according
to the UN, there had been at least 1 663 civilian casualties between
24 February and 12 March, including 596 deaths, although the actual
number is likely much higher.
There are hundreds of thousands
of internally displaced persons and over two and half million refugees.
The images coming from Ukraine indicate utter devastation of civilian
infrastructure. Despite the numerical disparity between the two sides,
Ukrainians are mounting a fierce resistance, with scores of citizens
joining the territorial defence units. President Zelenskyy has given
an example of leadership, refusing the proposal to be taken out
of the country. Other prominent political figures have continued
to lead the fight against the invasion, putting up a united front in
spite of their different political affiliations.
11. The Russian Federation’s aggression against Ukraine is in
breach of many international law instruments including, amongst
others:
- the Charter of the
United Nations, namely its Article 2.3 “All Members shall settle
their international disputes by peaceful means in such a manner
that international peace and security, and justice, are not endangered”;
and Article 2.4 “All Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other
manner inconsistent with the Purposes of the United Nations”, as
affirmed by the United Nations (UN) General Assembly;
- the Helsinki Final Act and the Charter of Paris, as recognised
by the Organization for Security and Co-operation in Europe (OSCE)
Chairman-in-office, Polish Foreign Minister Zbigniew Rau.
12. The Russian Federation’s armed attack against Ukraine qualifies
as aggression under Resolution 3314 (XXIX) of the United Nations
General Assembly (UNGA), which defines aggression as: “the use of
armed force by a State against the sovereignty, territorial integrity
or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations”.
13. As recognised by the Committee of Ministers in its decision
to suspend the Russian Federation’s representation rights, the Russian
Federation’s aggression is a serious violation of Article 3 of the
Council of Europe Statute, according to which: “Every member of
the Council of Europe must accept the principles of the rule of
law and of the enjoyment by all persons within its jurisdiction
of human rights and fundamental freedoms, and collaborate sincerely
and effectively in the realisation of the aim of the Council as
specified in Chapter I”.
14. It is also in breach of the commitments and obligations which
the Russian Federation undertook upon acceding to the Council of
Europe,
namely:
- “to settle international as well as internal disputes
by peaceful means (an obligation incumbent upon all member States
of the Council of Europe), rejecting resolutely any forms of threats
of force against its neighbours”; and
- “to denounce as wrong the concept of two different categories
of foreign countries, whereby some are treated as a zone of special
influence called the ‘near abroad’’.
3. Reactions to the aggression
15. The unfolding Russian aggression
against Ukraine has been condemned by the international community,
including States and international organisations such the United
Nations, the European Union, the OSCE, the Organisation for Economic
Co-operation and Development (OECD) and the Inter-Parliamentary Union.
A strong critical stance has also been taken by other civil society
actors, from international sports administration bodies to private
companies to prominent cultural figures and sports personalities.
16. In the Russian Federation, however, anti-war protests are
stifled. The Assembly should condemn the actions taken by the Russian
authorities to further curtail freedom of expression and freedom
of assembly, through the closure of almost all remaining independent
news organisations, the intensifying crackdown on civil society,
the harsh repression of peaceful protests, and severe restrictions
on access to social media. It should deplore the fact that, as a
result, the Russian population is deprived of information from independent
sources, instead being exposed only to State-controlled media that
amplify a distorted narrative of the war.
4. The involvement of Belarus
17. Belarus has played a role in
the Russian aggression against Ukraine, allowing Russian troops
to use its territory to transit to Ukraine, to fire ballistic missiles,
to transport Russian military personnel and heavy weapons, tanks,
and military transporters. It has allowed Russian military aircraft
to fly over Belarusian airspace into Ukraine, provided refuelling
points, and stored Russian weapons and military equipment in Belarus.
18. Although President Lukashenko said that the Belarusian armed
forces were not taking part and would not take part in Russia's
military operation in Ukraine,
the referendum of 27 February 2022
not only sealed the removal from the Constitution of the reference
to neutrality but also to its nuclear-free status.
19. According to the United Nations General Assembly Resolution
3314 (XXIX), “the action of a State in allowing its territory, which
it has placed at the disposal of another State, to be used by that
other State for perpetrating an act of aggression against a third
State”, qualifies as an act of aggression.
20. In its Resolution on “Aggression against Ukraine” adopted
on 2 March 2022,
the United Nations General Assembly
“deplored the involvement of Belarus in [the] unlawful use of force
against Ukraine” and called upon it “to abide by its international
obligations”. The European Council also strongly condemned the involvement
of Belarus in the aggression against Ukraine and called on it to
refrain from such action and to abide by its international obligations.
The same day, the Committee
of Ministers, condemning the active participation of Belarus in
the aggression against Ukraine, invited the Secretary General to
submit proposals on steps to be taken with regard to relations between
the Council of Europe and Belarus.
21. In view of the participation of Belarus in the aggression
against Ukraine, I believe that the Assembly should recommend that
its Bureau suspend relations between the Assembly and the Belarusian
authorities in all the Assembly’s activities.
5. Diplomacy
22. Belarus has hosted negotiations
between Ukraine and Russia. Since 24 February, the two delegations have
met three times. These discussions have mainly revolved around setting
up humanitarian corridors, and even this has been elusive.
23. In addition, since the outbreak of the war, various international
political figures – such as French President Emmanuel Macron and
the Israeli Prime Minister Naftali Bennett– have reached out in
an attempt to facilitate the end of the hostilities. The Turkish
Minister of Foreign Affairs, Mevlüt Çavuşoğlu, also provided a platform
for bilateral talks, inviting the Russian Foreign Minister Sergey Lavrov
and its Ukrainian counterpart Dmytro Kuleba to meet in Antalya.
24. Any diplomatic effort to achieve the end of the hostilities
and to address the humanitarian situation is welcome. At the time
of writing, however, it is difficult to see what negotiated solution
to the war could be found between the two parties.
6. The humanitarian consequences
6.1. The situation in Ukraine
25. War in Ukraine is provoking
a high number of civilian casualties due to Russia’s recourse to
heavy artillery, multi-launch rocket systems and airstrikes against
populated areas.
Landmines are causing victims.
The use of cluster munitions against
civilian targets and thermobaric weapons has also been reported.
It is a matter of grave concern that
Russian troops have been laying siege to civilian areas, attacking
them with continuous shelling and depriving people of electricity,
heating, access to water, food and health care. All these actions
should be documented and investigated as they represent serious
breaches of international humanitarian law and amount to war crimes.
26. Since the outbreak of the war, the humanitarian situation
in Ukraine has been rapidly deteriorating. Relentless shelling has
damaged or destroyed more than 200 schools, at least 34 hospitals
and more than 1 500 residential buildings,
with even a children’s hospital being
destroyed by Russian artillery in the besieged city of Mariupol.
27. Hundreds of thousands of people have no access to food, water,
heat, shelter or electricity, with no respite in sight. Access to
health care is severely limited by insecurity and the lack of basic
supplies, and a potential Russian attack on Odessa, Ukraine’s largest
port city, could strain supplies even further. The World Food Programme
projects an exponential rise in food insecurity across all areas
of Ukraine,
and given the wider region’s role
in global wheat supply, there is great concern regarding the conflict’s
impact on humanitarian aid elsewhere.
28. In addition to large urban areas, the situation is particularly
worrying in eastern Ukraine, an area which has already been exposed
to eight years of armed conflict, isolation of communities, deteriorating infrastructure,
multiple movement restrictions and high levels of landmines. Even
before the current military campaign, 1.1 million people were in
need of food and livelihood assistance in eastern Ukraine.
29. It is a matter of grave concern that humanitarian corridors
are not respected. A proposal by Moscow to create humanitarian corridors
from six heavily bombed Ukrainian cities was rejected by Kyiv, and
condemned by international leaders, after it turned out that most
of the safe routes would lead to Russia and Belarus.
The Russian Federation should ensure
the opening of and respect for humanitarian corridors to allow the evacuation
of civilians to safe regions within Ukraine or safe countries outside
Ukraine. As underlined by Tiny Kox, President of the Assembly, “the
Russian Federation must ensure that humanitarian aid, medical assistance
and supplies, as well as deliveries of food, reach without hindrance
all those for whom they are intended, especially the most vulnerable
people, including the elderly, women, children and the disabled”.
6.2. Displacement
30. Russia’s invasion has triggered
one of the fastest-growing refugee emergencies on record, according
to the UN High Commissioner for Refugees (UNHCR) which has defined
it as in the biggest refugee exodus seen in Europe since the Second
World War. In the first week alone, more than a million refugees
sought protection in neighbouring countries, and that number has
since risen to over two and a half million in total as of 12 March. Humanitarian
agencies estimate that if the current destruction continues, the
total number of refugees may rise to four million.
31. There were already 850 000 internally displaced persons (IDPs)
in Ukraine before the start of this war, and the number is estimated
to rise to 6.7 million as a result of the Russian invasion. The
majority of displaced persons are women and children, causing fears
of increased risks of gender-based violence and sexual exploitation
and abuse.
32. The rapid influx of displaced persons is overwhelming response
capacities both in western Ukraine and in neighbouring countries.
Lviv is estimated to be hosting approximately 200 000 IDPs – more
than a quarter of its normal population –, with the Mayor warning
that the city is facing breaking point with regards to its ability to
welcome those in need.
33. Amongst neighbouring countries, Poland has been receiving
the largest number of refugees, with 1 700 000 persons fleeing the
war in Ukraine currently finding shelter there. Hungary is hosting
250 000 persons, the Republic of Moldova 110 000, Romania 85 000
and the Slovak Republik 200 000.
34. In order to face these enormous challenges, neighbouring countries
have gone to considerable lengths to quickly adopt tailored measures
to provide housing, food, cash, and schooling for refugees, in addition
to aid for local families hosting them.
Their efforts should be commended
and further supported by the international community, including
the Council of Europe. There is a need for financial assistance,
medical and other aid, and also expert programmes to meet the needs
of those who are in a vulnerable situation, such as victims of gender-based
violence, victims of trauma, children, persons with disabilities
and elderly people. At the same time, all those concerned should
avoid discriminating against people fleeing from the conflict, on
any grounds.
35. Council of Europe member States who are not neighbouring Ukraine
should also step up their support and contribute to welcoming refugees
from Ukraine. The European Union has set an example by triggering,
for the first time, its Temporary Protection Directive, allowing
those fleeing the war in Ukraine to obtain temporary residence permits
and access to education and the labour market in EU member States.
6.3. Funding and access for humanitarian
agencies
36. The United Nations has launched
a flash appeal to fund humanitarian operations, announced the release
of 20 million USD from the Central Emergency Response Fund to help
meet these urgent needs, and appointed a Crisis Coordinator for
Ukraine to lead the co-ordination of efforts.
Similarly, other humanitarian organisations,
such as the International Committee of the Red Cross, have asked
for support to meet the needs of those affected.
37. However, without the establishment of humanitarian corridors
and relevant security guarantees, humanitarian actors will not be
able to provide relief to trapped civilians and facilitate evacuations.
Safe and unhindered humanitarian access across conflict lines to
reach all those in need remains of pivotal importance and should
be guaranteed, in line with international humanitarian law.
7. Accountability
7.1. Proposal to set up a special tribunal
38. The Rome Statute of the International
Criminal Court (ICC) codifies the “act of aggression” reiterating the
definition set out in UNGA Resolution 3314 (XXIX),
and makes it an element of
the “crime of aggression” which it defines as
“the
planning, preparation, initiation or execution, by a person in a
position effectively to exercise control over or to direct the political
or military action of a State, of an act of aggression which, by
its character, gravity and scale, constitutes a manifest violation
of the Charter of the United Nations”.
39. Neither the Russian Federation nor Ukraine are parties to
the Rome Statute. Ukraine, however, issued a declaration accepting
the ICC’s jurisdiction for crimes occurring on its territory from
21 November 2013 onwards.
This covers
the crime of genocide, war crimes and crimes against humanity committed
on the territory of Ukraine, as explained below. The ICC jurisdiction
does not cover the crime of aggression which, in the case of non-party
States, can only be investigated if referred by the Security Council.
40. In the likelihood that the Russian Federation would exercise
its veto in the Security Council against a referral, an initiative
has been launched aimed at setting up a special criminal tribunal
to investigate and prosecute those responsible for the aggression
against Ukraine. This has been supported by a number of prominent
figures, including Sir Nicolas Bratza, former President of the European
Court of Human Rights and Chairman of the Council of Europe’s International
Advisory Panel, set up to investigate the tragic events in Odessa
of May 2014.
7.2. Investigation by the International
Criminal Court
41. On 28 February 2022, Karim
Khan, ICC Prosecutor, confirmed that there was a reasonable basis
to proceed with opening an investigation on alleged war crimes and
crimes against humanity committed in Ukraine. Subsequently, he announced
that his Office had received referrals on the situation in Ukraine
from 39 ICC States Parties – out of which 34 are Council of Europe
member States – under article 14 of the Rome Statute and that, on
the basis of the referrals received, he had opened an investigation
into the situation in Ukraine, encompassing within its scope any
past and present allegations of war crimes, crimes against humanity
or genocide committed on any part of the territory of Ukraine by
any person from 21 November 2013 onwards.
7.3. Proceedings before the International
Court of Justice
42. On 26 February 2022, Ukraine
filed an application before the International Court of Justice (ICJ) instituting
proceedings against the Russian Federation concerning a dispute
relating to the interpretation, application and fulfilment of the
1948 Convention or the United Nations Genocide Convention. The application aims
at showing that claims that Ukraine is responsible for genocide
in the Luhansk and Donetsk regions are unfounded and establishing
that the Russian Federation thus has no lawful basis to take military
action based on those false claims. Ukraine has also requested the
ICJ to indicate provisional measures to prevent irreparable prejudice
to the rights of Ukraine and its people.
7.4. Investigation by the United Nations
Human Rights Council
43. On 3-4 March 2022, the UN Human
Rights Council held an urgent debate on the situation of human rights
in Ukraine stemming from the Russian aggression. The debate resulted
in the adoption of a Resolution which establishes an Independent
International Commission of Inquiry to investigate alleged violations
of human rights in the context of the Russian Federation’s aggression
against Ukraine.
44. The Commission is to be constituted by three human rights
experts, to be appointed by the President of the Human Rights Council
for an initial duration of one year, with the mandate to, among
other things, investigate all alleged violations and abuses of human
rights and violations of international humanitarian law, and related
crimes, in the context of the Russian Federation’s aggression against
Ukraine, and to establish the facts, circumstances, and root causes
of any such violations and abuses; and to make recommendations,
in particular on accountability measures, all with a view to ending
impunity and ensuring accountability.
8. The Council of Europe response
45. Since the outbreak of the war,
the Council of Europe trialogue, composed of the President of the Assembly,
the President of the Committee of Ministers and the Secretary General
of the Council of Europe, has been united and crystal-clear in expressing
solidarity towards Ukraine, condemning the aggression by the Russian
Federation and reaffirming its support for the sovereignty, independence
and territorial integrity of Ukraine within its internationally
recognised borders.
On 25 February, the Committee of
Ministers, after consulting the Assembly, decided to suspend the
representation rights of the Russian Federation. Several Council
of Europe bodies and structures are contributing to tackling the
situation within their respective remits.
8.1. European Court of Human Rights
46. On 28 February 2022, the European
Court of Human Rights received a request from the Ukrainian Government
to indicate urgent interim measures to the Government of the Russian
Federation, under Rule 39 of the Rules of Court, in relation to
“massive human rights violations being committed by the Russian
troops in the course of the military aggression against the sovereign
territory of Ukraine”.
47. On 1st March 2022, the Court indicated
interim measures, asking the Russian Federation to refrain from military
attacks against civilians and civilian objects, including residential
premises, emergency vehicles and other specially protected civilian
objects such as schools and hospitals, and to immediately ensure
the safety of the medical establishments, personnel and emergency
vehicles within the territory under attack or siege by Russian troops.
The reality on the ground shows that the interim measures were not
respected.
48. The Court also recalled the interim measure indicated on 13
March 2014 which remains in force in the context of the case Ukraine
and the Netherlands v. Russia (nos. 8019/16, 43800/14 and 28525/20)
concerning the events in eastern Ukraine calling upon the Governments
of both the Russian Federation and Ukraine to comply with their
engagements under the Convention.
49. With regard to the current military action which commenced
on 24 February 2022 in various parts of Ukraine, the Court considered
that “it gives rise to a real and continuing risk of serious violations
of the Convention rights of the civilian population, in particular
under Articles 2 (right to life), 3 (prohibition of torture and
inhuman or degrading treatment or punishment) and 8 (right to respect
for private and family life) of the European Convention on Human
Rights”.
50. The Court has also received a number of requests for interim
measures from individuals against the Government of the Russian
Federation, including those taking refuge in shelters, houses and
other buildings, fearing for their lives due to ongoing shelling
and shooting, without or with limited access to food, healthcare, water,
sanitation, electricity and other interconnected services essential
for survival, in need of humanitarian assistance and safe evacuation.
51. On 4 March 2022, the Court decided that the interim measure
indicated on 1st March should be considered
to cover any request brought by persons falling into the above category
of civilians who provided sufficient evidence showing that they
face a serious and imminent risk of irreparable harm to their physical integrity
and/or right to life. It also indicated the interim measure, asking
the Russian Federation to ensure unimpeded access of the civilian
population to safe evacuation routes, healthcare, food and other
essential supplies, rapid and unconstrained passage of humanitarian
aid and movement of humanitarian workers.
8.2. Co-operation activities in Ukraine
52. The Council of Europe has an
Office in Ukraine, which is responsible for facilitating the implementation of
the Council of Europe's mission in the country as well as co-ordinating
and implementing co-operation projects and programmes.
53. The Head and Deputy Head of the Council of Europe Office in
Ukraine currently work from the European Youth Centre in Budapest,
while the local staff have either decided to remain in Ukraine or
have found refuge in neighbouring countries. The Secretary General
of the Council of Europe had taken prompt action to ensure that
Council of Europe staff who so wished, together with their families,
could be evacuated to the European Youth Centre in Budapest, where
they are provided accommodation and assistance.
54. The Secretary General has also asked the secretariat to prepare
a package of priority measures which can be implemented immediately
upon termination of the conflict. Council of Europe experience,
expertise and existing networks will be central to the package,
as will the needs expressed by the Ukrainian authorities.
55. Given the situation on the ground, it is not possible to evaluate
the results of the ongoing Action Plan. Previous Action Plans, however,
achieved considerable results with regard to contributing to the
independence and impartiality of the judiciary and parliamentary
supervision of the execution of European Court of Human Rights judgments;
strengthening local democracy; setting up the Public Broadcaster
and promoting freedom of expression; combating violence against
women and domestic violence, protecting minorities and countering discrimination;
tackling corruption and money laundering. Since 2014, the Council
of Europe has played an important role in securing and protecting
the rights of internally displaced persons.
56. As soon as conditions allow, the Council of Europe should
respond to the needs indicated by the Ukrainian authorities and
continue its work aimed at strengthening human rights, the rule
of law and democracy in Ukraine.
8.3. The Council of Europe Development
Bank
57. Since its creation, protecting
the vulnerable has been at the very core of the social mission of
the Council of Europe Development Bank (CEB). The CEB has been very
swift in responding to this emergency and is planning to take immediate,
targeted initiatives to help CEB member States
to address the urgent needs and adequate
management of the refugee flows due to the aggression against Ukraine.
At the time of writing, operational contacts to this end are under
way, which will make it possible to allocate grants swiftly. The
grants may cover areas such as the registration of displaced persons
as well as their transportation to shelters or more permanent destinations
within CEB member States.
58. Beyond the immediate response, the CEB is looking at two main
lines of action to support neighbouring countries hosting high numbers
of Ukrainians displaced by the war: fast-tracking emergency loans
to strengthen accommodation capacity and seeking co-operation with
the European Union to provide emergency relief and scale up social
infrastructures in the area of housing and health care.
8.4. The Commissioner for Human Rights
59. The Council of Europe Commissioner
for Human Rights, Dunja Mijatović, promptly reacted to the Russian
aggression against Ukraine, issuing a number of statements. To mention
a few, on 7 March she urged the Russian authorities to stop the
war against Ukraine as well as the unprecedented crackdown on freedoms of
expression, assembly and association against human rights defenders,
journalists, activists, and ordinary citizens who, in the Russian
Federation, oppose the war.
She devoted her statement on International Women’s
Day to Ukrainian women and girls, who are caught up in a war waged
with total disregard for human life and dignity.
60. On 9 March, following an emergency three-day mission to the
Republic of Moldova, including a visit at a border crossing with
Ukraine, the Commissioner published a statement in which she gave
account of the harrowing stories she heard from dozens of people
who had fled the war in Ukraine.
She commended the efforts made by
Ukraine’s neighbouring countries in receiving and helping those
fleeing from Ukraine, while calling on the international community
to step up its assistance by urgently providing more funding and
support to help neighbouring countries to scale up their response.
The Commissioner underlined that, in order to protect the rights
of the people fleeing Ukraine who decide to remain in the Republic
of Moldova, a long-term approach will have to be adopted and strategies
and integration measures envisaged in good time, including through
creating opportunities for child refugees to continue their education
and by offering psychological assistance to all those who need it.
61. I fully share the Commissioner’s concerns. I also believe
that the Commissioner’s role is crucial to continue to raise awareness
about the situation of those fleeing Ukraine and those who remain
in Ukraine, and to support initiatives and efforts aimed at documenting
human rights violations and breaches of international humanitarian
law in Ukraine, including through regular contact with her networks
of human rights defenders and the civil society in the country.
62. The Commissioner and her Office intend to continue to carry
out missions to the borders with Ukraine in the next weeks to obtain
first-hand understanding of the situation there and provide further
recommendations.
8.5. The Special Representative of the
Secretary General on Migration and Refugees
63. On 9 March 2022, the Special
Representative on Migration and Refugees, Leyla Kayacık, convened
an extraordinary online meeting of the Council of Europe Network
of Focal Points on Migration to gather information on the situation
of the civilian population fleeing from Ukraine to neighbouring
countries, and the challenges faced by the relevant authorities.
64. The meeting provided an overview of fast-changing developments
in member States
, including
the need to protect women and children from abuse, exploitation
and trafficking, and in particular unaccompanied children.
65. The Special Representative will explore how best the Council
of Europe can respond to current needs in the framework of the Action
Plan on Protecting Vulnerable Persons in the Context of Migration
and Asylum in Europe (2021-2025).
I strongly encourage her to continue
this work.
9. Application of Article 8 of the Statute
against the Russian Federation
9.1. Suspension
66. On 25 February 2022, following
a meeting of the Joint Committee, bringing together members of the Assembly
and the Committee of Ministers, the Committee of Ministers decided
to suspend the representation rights of the Russian Federation with
immediate effect, pursuant to Article 8 of the Council of Europe
Statute. The decision was motivated by the serious breach by the
Russian Federation of its obligations under Article 3 of the Statute.
On the same day, the decision
was notified to the Minister of Foreign Affairs of the Russian Federation.
67. Following a separate meeting on 2 March 2022, the Committee
of Ministers adopted a resolution on the legal and financial consequences
of the suspension,
which
clarified that the suspension covers representation in the Committee
of Ministers, the Parliamentary Assembly, the Congress of Local
and Regional authorities and their subsidiary organs and bodies,
and intergovernmental committees set up on the basis of Articles
15a, 16 and 17 of the Statute.
68. The suspension does not affect the exercise of her mandate
by the Council of Europe Commissioner for Human Rights, nor the
functioning of the European Commission against Racism and Intolerance
(ECRI), two monitoring bodies set up by Committee of Ministers’
resolutions.
69. In addition, suspension does not affect the Russian Federation’s
position as a party to those Council of Europe conventions and agreements
which it has ratified or signed without reservation in respect of
ratification. In particular, the Russian Federation remains subject
to its obligations under the European Convention on Human Rights.
Any current and future applications introduced against or by the
Russian Federation will continue to be examined and decided by the
Court. The Russian Federation may continue to participate in the meetings
of the Committee of Ministers only when the latter exercises its
functions in respect of the supervision of the execution of judgments
with a view to providing and receiving information concerning the
judgments where it is the respondent or applicant State, without
the right to participate in the adoption of decisions by the Committee
nor to vote.
70. The suspension of the Russian Federation does not affect its
right of participation in partial agreements of which it is a member.
71. Finally, the Russian Federation retains its rights and obligations
attached to its position as a member State, including payment of
its obligatory financial contributions to the Organisation’s General
Budget as well as to the budgets of those partial agreements of
which it is a member.
72. In response to the Committee of Ministers’ decision, the spokesperson
of the Ministry of Foreign Affairs, Maria Zakharova, stated that
“We will soon determine our future
steps. Those who initiated and supported this faulty decision will
bear full responsibility for the collapse of the common legal and
humanitarian space on the continent and the disastrous consequences
that the Council of Europe will inevitably face. Without Russia,
the Council of Europe will lose its pan-Europe identity and eventually,
its reason for existence”.
73. Despite this and other statements, at the time of writing
the Russian Federation has not officially withdrawn from the Organisation.
It has not, however, honoured its financial commitments, the first
part of which has already become due in 2022.
74. I would like to point out that the suspension is a temporary
measure and is not sustainable in the long-term. Even if the Russian
Federation continues to be a member of the Council of Europe and
a party to Council of Europe instruments, including the European
Convention on Human Rights, effective membership requires co-operation
and a climate of trust, which are difficult in these circumstances.
9.2. Request to withdraw
75. On 10 March 2022, the Committee
of Ministers decided to ask the Assembly’s Opinion on the potential further
use of Article 8 of the Statute.
The Assembly’s Opinion is required
in the context of a possible request to a member State to withdraw
but is not binding on the Committee of Ministers, which remains
responsible for the decision.
76. The Russian Federation’s aggression against a sovereign, independent
State, and the distraught caused by the heavy toll of destruction,
suffering and death have provoked profound outrage. Nonetheless,
the Assembly’s Opinion should carefully weigh arguments in favour
and against withdrawal.
77. By ceasing to be a member of the Council of Europe, the Russian
Federation would also cease to be a party to all those conventions
which are open only to Council of Europe member States, including
the European Convention on Human Rights.
78. The most prominent argument against withdrawal is that it
would deprive millions of Europeans, who live in territories subjected
to the jurisdiction or de facto control
of the Russian Federation, of the right to apply for redress to
the European Court of Human Rights against Russia. It would also
prevent Council of Europe member States submitting inter-State applications
against the Russian Federation before the Court.
79. To balance this concern, one should consider that the effective
compliance with the decisions and judgements of the European Court
of Human Right, as well as the interim measures that it may decide, depends
on the genuine will of the Russian Federation to abide by its international
obligations in good faith. Previous experience shows the lack of
genuine will by the Russian Federation to execute key judgements
of the Court, as reflected in the number of cases concerning the
Russian Federation whose execution is subject to enhanced supervision
by the Committee of Ministers.
80. Along the same lines, concerns may be raised as regards the
possibility for Ukrainians themselves or other member States to
obtain redress against the Russian Federation should the Russian
Federation withdraw or be excluded from the Council of Europe. As
described earlier, however, a number of international bodies such
as the ICC, ICJ and the Human Rights Council have already initiated
investigations into human rights violations, international humanitarian
law violations and war crimes committed by the Russian Federation in
Ukraine and an initiative aimed at setting up a special international
criminal tribunal has been launched.
81. Yet, it is important to recall that the Council of Europe
is the only pan-European organisation where both Ukraine and the
Russian Federation are members, and can meet for dialogue, discussion
and confrontation.
82. Since the Russian Federation joined the Council of Europe
in 1996, the Assembly has spared no efforts to maintain dialogue
with the Russian authorities, including at times of great tension
in their relations. This is evident from the list of resolutions
and recommendations adopted by the Assembly.
Experience,
however, shows that the Russian Federation did not comply with any
key recommendation formulated by the Assembly.
83. The Assembly should and will continue to support and promote
dialogue as a means of conducting international relations and solving
disputes. With the Russian Federation’s aggression against Ukraine, however,
it has become painfully clear that dialogue serves no purpose unless
both sides are in good faith. In fact, insisting on pursuing dialogue
with the hope of having an influence against incontrovertible signs
to the contrary can undermine the Assembly’s credibility and, ultimately,
lead to complacency.
84. Furthermore, dialogue should be distinguished from membership.
Unlike other international organisations such as the United Nations
and the OSCE, the Council of Europe expressly provides for procedures
and conditions to admit members, suspend them, ask for their withdrawal
and exclude them.
85. The serious breach of the Statute and other international
obligations by the Russian Federation demonstrates contempt for
Council of Europe values and is of such a gravity as to justify
that the Committee of Ministers ask for its withdrawal. If the unprovoked
and unjustified military attack against the sovereignty, independence
and territorial integrity of another member State, and its subsequent
invasion do not warrant exclusion, what would? And, if the Russian
Federation is allowed to remain a member, what leverage can the Council
of Europe have on other member States, in cases of serious breaches
of its Statute?
86. The case of Greece, who decided to leave the Council of Europe
in 1969 and rejoined in 1974, shows that once there is a genuine
commitment to adhere to Council of Europe values and standards it
is possible for a State to come back.
87. Even if Russian troops were withdrawn immediately, the effects
of this war cannot be reversed and will remain a deep wound in the
lives of many Europeans but also in the trust that the Russian authorities
can expect. This is even more the case when one considers that,
despite the many appeals for the cessation of hostilities and to
comply with international law, the Russian leadership has persisted
in its decision, showing no change of heart and reiterating its
preparedness to use force to achieve its objectives.
88. Should withdrawal happen, for the Russian Federation to be
able to return as a Council of Europe member on an equal footing
with the others, a profound change would be necessary in the direction
taken by its leadership.
10. Conclusions
As regards Ukraine
89. The aggression of the Russian
Federation against Ukraine is against all the values the Council
of Europe stands for. Council of Europe member States and the international
community as a whole should work relentlessly to achieve the cessation
of the hostilities and the complete and unconditional withdrawal
of the Russian troops from the territory of Ukraine. They should
all stand by the Ukrainian people, upholding their right to live
in an independent and sovereign State, the territorial integrity
of which is respected
90. It is necessary to scale up the response to meet the humanitarian
needs of people in Ukraine and outside. The establishment of safe
humanitarian corridors in Ukraine is urgently needed and so is access
to humanitarian agencies. The efforts deployed by Council of Europe
member States neighbouring Ukraine should be commended. The international
community should step up its assistance by providing more funding and
support in order to help neighbouring countries to scale up their
response, in the short and the long-term. Irrespective of their
geographical proximity with Ukraine, all Council of Europe member
States should play a role in welcoming Ukrainians and providing
assistance.
91. Through its numerous bodies and institutions, and in the respect
of its remit and mission, the Council of Europe should be on the
frontline in providing help, assistance and expertise to Ukraine.
92. There cannot be any impunity for violations of international
law, human rights and international humanitarian law currently being
committed in Ukraine. Council of Europe member States and the organisation as
a whole should support the investigations and proceedings which
are under way in the International Criminal Court, the International
Court of Justice and the special commission set up by the Human
Rights Council. As long as the Russian Federation is a member of
the Council of Europe, the jurisdiction of the European Court on
Human Rights continues to apply.
As regards the Russian Federation
93. 1989 was a defining year for
the Council of Europe. The Cold War came to an end, the Berlin wall
came down and Mikhail Gorbachev, President of the Soviet Union,
in his historic speech before the Parliamentary Assembly of the
Council of Europe, outlined his idea of “a common European home”.
94. Since 25 February 2022, the war waged by the Russian Federation
against Ukraine has signalled the opening of a new phase in European
history. The Russian Federation has chosen recourse to force over dialogue
to advance its foreign policy objectives. Despite being a permanent
member of the UN Security Council, it has chosen aggression, undermining
peace and security. It has violated the Statute of the Council of
Europe and the obligations and commitments it undertook upon becoming
a member of the Organisation.
95. In the common European home, there is no place for an aggressor.
In its Opinion pursuant to Statutory Resolution (51) 30, the Assembly
should call on the Committee of Ministers to request the Russian
Federation to withdraw from the Council of Europe.
96. For the Russian Federation to be able to return as a Council
of Europe member on an equal footing with the others, a profound
change is necessary. The infringements of international law and
the breach of trust caused by this aggression are so serious that,
if Russia wished to be a member of the Council of Europe, it should
submit a new application and show its commitment to democracy, human
rights and the rule of law.
As regards the Council of Europe
97. These tragic events confirm
the relevance and continuous necessity of the Council of Europe
as a value-based inter-governmental organisation working to promote
democracy, human rights and the rule of law. The Assembly should
call on Council of Europe member States to ensure the financial
sustainability of the Organisation, should the Russian Federation
fail to meet its financial commitments to the Council of Europe.
98. The Council of Europe should open an in-depth reflection on
its role in the new historical phase created by this aggression.
A new gathering of Heads of State and Government of Council of Europe
member States could chart the way forward for the Organisation,
to make it more effective and better equipped to promote democratic
security in Europe and tackle the challenges ahead.
99. Irrespective of the decision which the Committee of Ministers
will take in relation to the potential further use of Article 8,
the Assembly believes that the Council of Europe should continue
to reach out to the Russian people, many of whom who do not support
this war and do not have access to independent and objective information
about it. Specific initiatives should be envisaged to this end,
should the Russian Federation cease to be a member of the Organisation.
The Council of Europe should continue to support human rights defenders, democratic
forces, free media and independent civil society in the Russian
Federation.