This is a short post to flag to readers that on Wednesday next week, 9 July, the Grand Chamber of the European Court of Human Rights will be delivering its much-anticipated merits judgment in one of the most important interstate cases ever to be decided by that Court, Ukraine and the Netherlands v. Russia. The case concerns hostilities in Ukraine in 2014, the downing of the MH17 airliner, and events in 2022 after the start of Russia’s full-scale invasion of Ukraine, up to the point at which the Convention ceased to apply to Russia due to its expulsion from the Council of Europe.
For more background on the case, readers can consult this two-part post on the Court’s admissibility decision in the case (here and here), and this post on third party interventions in the case, including an unprecedented number of member states (26) intervening (ostensibly) in support of Ukraine. The Court’s press release announcing the delivery of the judgment, also containing a summary of the proceedings so far, can be found here.
This will inevitably be a very rich judgment – whether one agrees with it or not – on a wide range of issues, including the ECHR’s extraterritorial application and the relationship between the Convention and international humanitarian law (IHL). Here are some of the most important issues to look out for:
(1) The key question remaining in the case from the standpoint of the Convention’s extraterritorial application, and the notion of state jurisdiction in Article 1 thereof, is how the Court will look at conduct of hostilities issues in the case, in particular in the light of its (rather horrible) Georgia v. Russia No. 2 judgment, in which it excluded from the scope of the Convention state conduct that took place in the context of active hostilities during an international armed conflict. If the Court applied GvR strictly, it would have to declare inadmissible all possible human rights violations arising from ‘pure’ conduct of hostilities incidents, such as artillery shelling affecting civilians. Thus, the case would be limited to the downing of the MH17 (which the Court made into something of a special case in its admissibility decision), and to incidents involving persons in the power of the enemy, such as the massacre in Bucha. If, by contrast, the Court were to overturn GvR, it would cover the entirety of the Russian invasion and set a major precedent for other states and situations.
(2) The written submissions in the case provide an important window into the possible outcomes of the case in that regard. Ukraine, obviously, argued that all of the war should be covered. Two states – France and the UK – although nominally appearing in support of Ukraine, actually argued in favour of Russia by saying, essentially, that only Bucha-type incidents but not the conduct of hostilities scenarios should be covered. Other intervening states supported Ukraine, either fully or more hesitantly, or hedged their arguments.
What, then, will the Court decide on this single most important outstanding issue? Obviously I have no idea. But my sense is that it is unlikely that the Court will completely fail what I called the Mariupol test and just say that because of a ‘context of chaos’ no conduct of hostilities incidents other than the MH17, including the devastation of Mariupol, would be a human rights problem. But it’s still possible that this could happen. There seem to be three possible outcomes here: (i) the Court buys into the Anglo-French restrictive argument and follows GvR; (ii) it overturns GvR and says that all incidents in the application are covered by the Convention – the right approach, in my view; (iii) it finds a way to rule that Ukraine (or Europe) is somehow special, so that the GvR approach should not be followed in the Russo-Ukrainian war, but that this approach would remain valid otherwise. This third outcome is probably the likeliest, simply because the Court is wary of provoking backlash by powerful states who do not want it to sit as a final arbiter of their uses of force in overseas conflicts. But that third outcome will also be the easiest to criticize as relying on blatantly arbitrary double-standard. We shall see what the Court does.
(3) What are the other points to watch out for in this case? First, most importantly, how the Court will apply IHL together with the Convention, especially when it comes to operations that result in the taking of life. It will be interesting to observe in that regard whether the Court mentions or uses some variant of the lex specialis maxim, and whether it gives any considerations to how the Convention should address mistakes of fact during war (e.g. in targeting, as arguably happened with the MH17). Note, however, that because of Russia’s non-appearance, and the lack of opposing arguments (especially those of fact), this case is unlikely to deal with genuinely hard cases in which the rules of the Convention and IHL might go in different directions. Second, how the Court will approach derogations under Article 15 ECHR, or the lack thereof, in managing the relationship between the Convention and IHL. Third, whether the Court will say anything about Russia’s aggression, and about whether ad bellum illegality has any kind of role to play in a human rights analysis. Finally, whether the Court will discuss and apply the rules of attribution in general international law when analysing Russia’s responsibility for the conduct of pro-Russian separatists in Ukraine.
