On 9 July 2025, the Grand Chamber of the European Court docket of Human Rights (‘ECtHR’) delivered its long-awaited judgment on the deserves of the Ukraine and the Netherlands v the Russian Federation. Described as an ‘glorious judgment’ attaining the ‘very best consequence that was realistically obtainable’, the choice not solely vindicates (and may vindicate) the rights of so many victims of the Russian aggression, but in addition serves as a ‘historic file’ of the invasion and occupation of Ukrainian territories.
This put up doesn’t supply a full case overview. It focuses as an alternative on a selected side: whether or not and the way Russia’s aggression affected the Court docket’s reasoning on Russia’s human rights obligations below the ECHR.
It advances two arguments.
First, it means that the Court docket’s resolution to search out jurisdiction over navy assaults launched in areas not below Russia’s management was formed by Russia’s blatant violation of jus advert bellum. That is evident from the elements the Court docket relied upon, specifically the content material of state interventions and the item and objective of the ECHR.
Second, it critiques this method, arguing that the legality of a struggle shouldn’t decide jurisdiction. As an alternative, jus advert bellum concerns ought to be explicitly addressed when decoding substantive obligations, as this method higher displays the ECHR’s object and objective.
A.1. Intention to imagine duty as foundation for jurisdiction
The Court docket held that victims of Russian navy assaults in areas of Ukraine not below prior occupation fell inside its jurisdiction, as Russia had ‘assumed a level of duty over these people affected by its assaults’. It discovered that by planning and executing these operations, instantly or via “DPR” and “LPR” forces, with the purpose of buying management over Ukrainian territory and displacing Ukraine’s authority, Russia exercised authority and management over the victims affected by its navy assaults up till 16 September 2022 [para 361].
This take a look at seems to broaden the private mannequin of jurisdiction in Al-Skeini, and Jaloud [para. 354], the place jurisdiction arose from the train of public powers over the victims. The decisive hyperlink, right here, lies in Russia’s deliberate intention to displace Ukraine’s authority over its territory and inhabitants. That target intent runs via paras 358–361, with para 360 framing Russia’s goal as nothing lower than ‘the destruction of Ukraine as an impartial sovereign State’ via annexation and subjugation.
It’s unclear whether or not this emphasis on Russia’s imperialistic intentions types a part of the take a look at or just distinguishes the case from the ‘context of chaos’ method in Georgia v Russia II. Some readings counsel the Court docket could have crafted its reasoning to keep away from overruling precedent whereas attaining consensus among the many judges and limiting political backlash (see EJIL: The Podcast! Episode 36: The Scourge of Warfare).
A.2. Jurisdiction by reference to jus advert bellum
Even when the Court docket sought primarily to tell apart this case from Georgia v Russia II, it’s prompt that the reasoning was underpinned by Russia’s violation of jus advert bellum. That is evident from the 2 components it relied upon: the Conference’s object and objective, and the submissions of the applicant and intervening states.
(a) Emphasis on object and objective of the Conference
The item and objective of the Conference, and its position inside the wider normative and institutional context of the Council of Europe, had been emphasised by nearly all contributors. Ukraine [para 211], the 26 intervening states [para 157] and the Court docket itself [para 164] highlighted that the Council of Europe was established on the premise that ‘the pursuit of peace based mostly upon justice and worldwide co-operation is significant for the preservation of human society and civilisation’ [Statute of the Council of Europe, preamble]. It was additional accepted that the ECHR reaffirmed these very rules, and that its objective was ‘to understand the goals and beliefs of the Council of Europe’ [para 166].
The Court docket, cognisant of this wider position, famous that these targets – selling peace based mostly on justice and worldwide cooperation – are of “crucial significance” in decoding the Conference. [para 179]. It characterised Russia’s full-scale invasion as a “watershed second” and a “flagrant assault” on the Council’s basic values, requiring it to interpret Article 1 in a means that contributes to peace and safety via the efficient safety of human rights [para 349].
The truth that Russia’s invasion constituted a ‘flagrant assault’ on the Conference’s object and objective; that the Conference goals at ‘securing justice and peace on [the European] continent’ [para 348]; and that the interpretation ought to mirror these goals [para 349] led the Court docket to its conclusions on jurisdiction.
This doesn’t appear to be a purely factual evaluation. As an alternative, it appears like jurisdiction was established by reference to the illegality of Russia’s conduct.
(b) Contributions of the applicant and intervening states
Each written and oral submissions strengthened this studying (for an evaluation of the written submissions, see Milanovic). States agreed that the extraterritorial use of pressure doesn’t routinely create jurisdictional hyperlink, however nor does worldwide armed battle exclude it. [para 233].
To find out whether or not jurisdiction was established on this case, the Court docket needed to reconcile conflicting pursuits. Many states sought to steer the Court docket away from its ruling in Georgia v Russia II. Others, such because the UK, warned in opposition to an expansive interpretation that might prolong obligations to professional makes use of of pressure outdoors the ECHR’s scope. Different states, together with Spain, Latvia, Germany, Portugal, and Estonia, shared these considerations (see paras 287, 290, 294, 309).
The reconciliation of those divergent views led to a give attention to Russia’s unprecedented aggression. Ukraine maintained that discovering jurisdiction—given Russia’s aggression in opposition to one other Excessive Contracting Occasion with the intent to destroy it—wouldn’t have an effect on states’ obligations concerning professional makes use of of pressure, particularly outdoors the ECHR’s authorized scope. It is because solely the previous violates the item and objective of the Conference. A number of states endorsed this reasoning, supporting jurisdiction on the premise that Russia’s aggression was basically incompatible with the Conference’s object and objective (see Czech Republic [242]; Poland [242, 260]; Belgium [280]; Croatia [284]; Germany [289]; Portugal [289]; Netherlands [298]).
This consensus, coupled with the Court docket’s emphasis on peace and justice, signifies that the legality of Russia’s operation influenced the interpretation and utility of Article 1. Even when the Court docket articulated a purely factual take a look at, in apply it’s laborious to see how different professional makes use of of pressure, corresponding to peacekeeping missions, peace-enforcement operation, self-defence, and even humanitarian interventions, may fulfill the criterion of intent to displace a territorial state’s governmental authority. The brand new foundation of jurisdiction due to this fact seems relevant solely to clear, manifest circumstances of aggression.
B.1. Jurisdiction in mild of jus advert bellum – a harmful precedent
The excellence between aggression and legit makes use of of pressure underpinning states’ contributions, and by extension the Court docket’s reasoning on jurisdiction, is problematic.
If jurisdiction is assessed by reference to the legality of the navy operation, this creates a de facto asymmetrical utility of human rights obligations. The suggestion seems to be that, in mild of the Conference’s object and objective, states committing aggression should owe human rights obligations, successfully as a ‘punishment’, so their actions may be scrutinised. Against this, states utilizing pressure for professional functions can be shielded from such obligations, and their conduct left unscrutinised.
As an illustration, if Banković had been to come back earlier than the Court docket once more with the identical information, the result would probably stay unchanged below the brand new take a look at. Nevertheless, if the identical information occurred within the context of a struggle of aggression, it could be extra debatable that victims fell inside the aggressor’s jurisdiction
This reasoning is problematic. Entitlement to human rights protections can’t rely on the legality of the navy operation. Each human rights and worldwide humanitarian legislation (‘IHL’) violations happen, whatever the legality or legitimacy of a celebration’s use of pressure below jus advert bellum. That’s the entire level of IHL, and it’s why the Court docket’s scrutiny of the state conduct on the battlefield is critical in all circumstances.
B.2. Substantive obligations in mild of jus advert bellum – the orthodox view
The lawfulness of a navy operation below jus advert bellum just isn’t irrelevant to human rights. Quite the opposite, it may and may affect the interpretation and utility of obligations corresponding to the suitable to life (see: Haque, Shrivastava; see additionally: Lieblich ).
On this case, the Court docket was not invited to use jus advert bellum when decoding substantive obligations, as Ukraine restricted its claims [para 217] to violations arising from non-compliance with IHL (on this level, see Jackson and Akande). When requested why it had not relied on Basic Remark 36 and the Human Rights Committee’s proposition that ‘acts of aggression as outlined in worldwide legislation, leading to deprivation of life, violate ipso facto article 6 of the Covenant’, Ukraine agreed with that interpretation and defined the exclusion of claims regarding troopers throughout energetic hostilities due to the ‘context of chaos’ ruling in Georgia v Russia II.
Nevertheless, the Court docket’s and states’ emphasis on ‘peace’ and ‘justice’ suggests an important distinction between human rights legislation and IHL: the previous doesn’t keep the latter’s neutrality in the direction of the legality of struggle (on this level, see Schabas). This distinction ought to inform the evaluation of human rights obligations in inter-state conflicts. Reaching totally different conclusions on whether or not states have violated, as an illustration, their proper to life obligations, based mostly on their place below jus advert bellum just isn’t an asymmetrical utility of human rights legislation. It’s a symmetrical utility that results in distinct outcomes due to their totally different positions below the legislation (jus advert bellum).
If the Court docket is certainly a guardian of peace and justice, these goals require attributing duty for breaches of peace. ‘Peace,’ particularly when paired with ‘justice,’ just isn’t a impartial time period. Moreover, the Council of Ministers has already discovered that Russia’s ‘aggression’ – not Ukraine’s defensive actions – had been a ‘flagrant assault’ on the European system. What distinguished the 2 states at that time was not their compliance with IHL, however with jus advert bellum.
Recognising this could prolong safety past the standard human rights–IHL interaction and acknowledge that everybody affected by aggression is a sufferer. It might be absurd to counsel that an aggressive struggle inflicting hundreds of soldier deaths as compliant with human rights obligations, just because no civilians had been harmed.
Conclusion
The Ukraine and the Netherlands v the Russian Federation case is undoubtedly a landmark resolution, but in addition a missed alternative to explicitly have interaction with the connection between jus advert bellum and human rights legislation.
In inter-state conflicts, jus advert bellum guidelines are related guidelines relevant between the events and may form how human rights obligations are interpreted. This interpretative interplay, nevertheless, ought to inform the substantive rights and never jurisdiction. Limiting human rights protections to an in-compliance-with-IHL evaluation undermines the importance of the underlying values based mostly on which the ECHR is developed. ‘Peace’ and ‘justice’ have authorized content material in the event that they broaden ECHR’s safety to all people affected.
