Puppet states and human rights abuses: a quest for accountability

puppetOn 30 November 2016, I served as a member of the reading committee at Sciences Po in Paris which conferred a PhD in law on Bogdan Ivanel for his work on puppet states. Mr Ivanel rightly draws attention to the serious accountability problems confronting the current phenomenon of puppet states. Puppet states are secessionist entities located on the territory of one state (the ‘mother state’) but are more or less controlled by another state (the ‘sponsor state’). While the puppet typically has its own governmental institutions and largely functions as a de facto state, it is not normally recognized by the international community. In fact, it can be considered as an extension of the sponsor state, which may occupy the puppet’s territorial base. Most puppet states have been established on the territory of the former Soviet Union, e.g., Nagorno-Karabakh, Transnistria, South Ossetia, Abkhazia, and Eastern Ukraine. Given the current geopolitical stalemate, these entities are not going away any time soon. Thus, it makes sense to take them seriously, or at least to open the debate regarding their accountability towards the citizens they ‘govern’. Accountability for human rights abuses committed on the puppet’s territory, should be realized through a combination of holding the sponsor state, the mother state, and the puppet state itself responsible.

The creation of puppet states obviously raises international concerns over unlawful intervention, title to territory, and self-determination: the puppet state’s territorial base is essentially contested between the mother and sponsor state, with the latter having created and/or maintaining the puppet by the threat or use of (superior) force. But more importantly perhaps, from an individual rights perspective, daily life in puppet states is often characterized by widespread human rights violations, such as torture, unlawful detention, human trafficking, forced resettlement, property violations, and even war crimes. This state of affairs, which may be a consequence of the international illegality of the puppet state’s very creation, begs the question as to the locus of human rights accountability vis-à-vis the individuals at the receiving end of injurious policies committed in and by puppet states.

One may reflexively consider puppet state authorities as the pertinent human rights duty-bearers, but the problem is that international law does not consider puppet states as autonomous subjects of the international legal order. Puppet states have not become parties to international and regional human rights treaties, such as the European Convention of Human Rights (ECHR). Even if they were to accede to a treaty, the depositary of the relevant treaty may well cast doubt on the puppet state’s statehood and on that ground refuse the instrument of accession. Thus, technically, puppet state authorities may perhaps abuse individuals, but they do not owe any human rights obligations to them. This is likely to create an accountability vacuum. The European Court of Human Rights has responded to this by locating accountability at the level of states (parties to the ECHR), namely the sponsor state and the mother state. In Ilascu et al. v Moldova and the Russian Federation, a 2004 judgment regarding Transnistria, the Court held both the sponsor state (Russia) and the mother state (Moldova) responsible for human rights violations committed on the territory of Transnistria. Russia was responsible because Transnistria remained ‘under [its] effective authority, or at  the  very  least  under [its] decisive influence’ (paras. 392-393). However, Moldova also incurred, at least in part, responsibility as it had ‘positive  obligations  to  take  appropriate  steps  to  ensure  respect  for  those rights  and freedoms within its territory [which] remain even where the exercise of the State’s authority is limited in part of its territory’ (paras. 313-314). The Court’s dual state responsibility approach narrows the accountability gap, even if it remains somewhat elusive what steps Moldova could have taken given the overwhelming power and influence of Russia in Transnistria.

Mr Ivanel’s suggestions are along the same lines, for the most part concentrating on mechanisms to regulate and hold accountable sponsor states and mother states in respect of abuses committed on the territory of puppet states. However, he refrains from enhancing the international legal status of the puppet state itself. It is my view that imposing human rights obligations on the puppet state qua separate entity may have a positive effect on its behavior vis-à-vis the individuals subject to its authority, and improve its accountability for human rights abuses. One has to be aware that the most proximate cause of abuses in puppet states is the puppet state’s own government, which – in spite of the sponsor holding its strings – often has its own agency. To be sure, holding other entities – the mother state and the sponsor state – responsible for these abuses may go some way to change the puppet state’s behavior. However, as these changes have to be mediated, the strongest compliance-inducing mechanism is heaping the moral and legal opprobrium on the puppet state itself, by means of imposing direct human rights obligations. Possibly for fear of legitimizing puppet states and recognizing unlawful changes of the territorial status quo, the international community has so far refrained from doing so. Still, such legitimacy concerns have been overcome in international humanitarian law, some norms of which have bound non-state armed groups since at least the 1949 Geneva Conventions. In addition, convincing arguments have been made that such groups also have direct obligations under international human rights law, arguments which often rest on the state-like territorial control and authority exercised by some armed groups, and their capacity to comply with human rights obligations (Daragh Murray, Hart 2016; Katharine Fortin, forthcoming OUP 2017). Given that puppet states are ipso facto territorial entities, the next normative leap is to make them also responsible for human rights violations, probably under customary international law. Characterizing puppet states as human rights duty-bearers is not just an academic exercise. Instead, it may dramatically modify the international reputational pay-offs of their authorities’ abusive policies, even if international enforcement may leave to be desired.