Amicus Curiae Brief in Ukraine and the Netherlands v. Russia

The European Court of Human Rights recently joined two major interstate cases pending before it – the interstate case filed by Ukraine and the Netherlands against Russia that concerned the downing of the MH17 airliner and events in Eastern Ukraine in 2014, which it declared admissible in January, with the new interstate application filed by Ukraine against Russia that concerns the full-scale invasion from February 2022 onward. The joined case will essentially require the Court to decide on whether Russia has violated the right to life in the conduct of hostilities in Ukraine, which are from Russia’s perspective largely taking place extraterritorially. At the admissibility stage of the first case the Human Rights Law Centre at the University of Nottingham filed an amicus curiae brief, co-authored by Sangeeta Shah and myself, dealing solely with the downing of the MH17. The HRLC was invited by the Grand Chamber to file a brief on the merits as well, which we have now done. It’s available on SSRN for any readers who might be interested; here’s a summary:

The brief is confined to the outstanding jurisdiction issues that were not dealt with in the Court’s admissibility decision, as well as the interpretation of Article 2 of the ECHR in light of applicable rules of international humanitarian law (IHL). This brief considers the relationship between the ECHR and IHL more fully than our brief at the admissibility stage, particularly in light of the Court’s joinder of application no. 11055/22 that concerns numerous acts of hostilities committed in the international armed conflict between Russia and Ukraine since February 2022.

The first part of the brief addresses the issues of jurisdiction that are to be determined by the Court at the merits stage, discussing the rules relating to jurisdiction that apply to the conflict between Russia and Ukraine since February 2022. In particular it argues that the Court should overrule the restrictive approach it had adopted in its Georgia v. Russia (No. 2) judgment. This section also confirms the rules of attribution that should be considered when assessing state responsibility for a violation of the ECHR. The second part of the brief examines how Article 2 of the ECHR should be interpreted in light of the applicable rules of IHL. It discusses in particular how Article 2 should be interpreted jointly with Article 15(2) ECHR, which permits derogation from the right to life in respect of deaths resulting from lawful acts of war, and how the Court should take into account IHL rules on distinction, proportionality, precaution and means and methods of warfare in its analysis. Finally, the third part of the brief examines how mistake of fact in the use of lethal force should be considered in light of the obligations under Article 2 of the ECHR and applicable rules of IHL.