Can the ECtHR Serve as an Alternative Venue for Inter-State Racial Discrimination Claims? Ukraine and the Netherlands v. Russia and the Strategic Value of Multi-Forum Litigation

On 9 July 2025, the European Court of Human Rights (ECtHR, the Court) issued its long-awaited merits judgment in Ukraine and the Netherlands v. Russia, a nearly 500-page ruling of unprecedented scale in the Court’s history, which also drew an exceptional number of third-party interventions (discussed here, here, and here). The proceedings consolidated three separate applications lodged pursuant to Article 33 of the European Convention on Human Rights (ECHR, the Convention) between 2014 and 2022, later joined under Rules 42(1) and 71(1) of the ECtHR’s Rules of Court. Collectively, these applications concerned a wide range of events in eastern Ukraine involving pro-Russian separatists since 2014 — including the downing of Malaysia Airlines flight MH17 and the alleged abduction of three groups of children and their temporary transfer to Russia — as well as mass and gross human rights violations resulting from Russia’s full-scale invasion of Ukraine beginning on 24 February 2022. The latter claims were initially filed as Ukraine v. Russia (X) (no. 11055/22). Already in November 2022, the Court declared the earlier Ukraine v. Russia (nos. 43800/14 and 8019/16) and The Netherlands v. Russia (no. 28525/20) applications partly admissible. In its July 2025 judgment, the Court examined both the merits of those claims and the admissibility and merits of Ukraine v. Russia (X), ultimately ruling in Ukraine’s favour in a landmark decision.

While much commentary has (rightly) focused on further unpacking the ruling on the most pressing issues — i.e. the scope of Article 1 ECHR, the extraterritorial application of the Convention in situations of armed conflict, and the intricate relationship between jus in bello and human rights law (see, among others, Milanović, Risini, Sommardal, and Jackson and Akande) — one dimension of the judgment has received comparatively less attention (safe for Milanovic’s closing observation here as regards Ukraine v. Russia (re Crimea)): the Court’s treatment of discrimination under Article 14 ECHR. This aspect is particularly striking when set against the International Court of Justice’s (ICJ) recent case law under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), where a markedly cautious approach has often led to the dismissal of claims of racial discrimination in situations of politically charged inter-State disputes. 

In Ukraine and the Netherlands v. Russia, the ICJ adopted a more restrictive interpretation of the grounds for discrimination under CERD in the case of Application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT) (Ukraine v. Russian Federation), (see here for comment). Therefore, the divergence between the ECtHR and the ICJ — rooted in textual differences between the treaties, the distinct institutional roles and mandates of the two courts, and their corresponding approaches to interpretation and standards of proof — deserves closer examination. 

From Crimea to Strasbourg: Reframing Discrimination Against Crimean Tatars Through the ECtHR’s Catch-All Approach

Article 14 ECHR constitutes the point of departure for addressing discrimination within the Convention system. As a subsidiary and non-autonomous clause, it prohibits differential treatment “on any ground such as… political or other opinion, national or social origin…” in the enjoyment of the rights and freedoms guaranteed by the Convention and its Protocols. Article 14 requires that the contested measure fall within the ambit of at least one substantive right or freedom under the Convention (Schabas, at 562). Once that threshold is satisfied, the Court usually examines whether there has been a difference in treatment of persons in relevantly similar situations — or, as formulated in Thlimmenos v. Greece, a “failure to treat differently persons whose situations are relevantly different” (para. 44) — on a prohibited ground. If such differential treatment exists, the burden shifts to the respondent State to provide an objective and reasonable justification. For particularly sensitive grounds, such as race or national origin, the Court demands “very weighty reasons” and accepts evidence of indirect discrimination established through robust patterns, statistics, or inferences drawn from context and official rhetoric, as illustrated in D.H. and Others v. Czech Republic (para. 46) and Nachova and Others v. Bulgaria (para. 147). Critically, the open-ended phrasing of Article 14 ECHR (“such as”) allows the Court to capture mixed-motive persecution, where political dissent and national or ethnic identity may be inseparably intertwined.

Discrimination under Article 14 ECHR may manifest in direct or indirect forms, which differ both in character and evidentiary demands. Direct discrimination entails less favorable treatment of an individual based on a protected characteristic, often with a clear causal link between disadvantage and protected ground. Indirect discrimination arises from apparently neutral measures that disproportionately affect members of a particular group, requiring broader contextual analysis to establish causation. While the Court initially showed some hesitation in addressing indirect discrimination — owing to its group-oriented dimension and the subtleties of structural disadvantage — it gradually acknowledged that neutral measures can produce disproportionate effects. Rulings such as those rendered in, inter alia, Hoogendijk v. the Netherlands; Zarb Adami v. Malta, and D.H. and Others v. Czech Republic are considered to be milestones in this evolution, confirming that credible evidence can shift the burden of proof to the State. Such developments reflect the ECtHR’s careful calibration of procedural fairness, equality of arms, evidentiary standards, and burden of proof, laying the conceptual and methodological groundwork for its subsequent treatment of cases implicating both direct and indirect discrimination on political and ethnic grounds, as comprehensively addressed in Ukraine and the Netherlands v. Russia.

The ECtHR’s nearly 500-page merits judgment provides a granular reconstruction of what it characterised as a deliberate, state-driven policy to erase both the cultural and political identity of Crimean Tatars. Consistent with its long-standing evidentiary practice established in both individual and inter-State cases, the Court applied its ordinary standard of proof, first articulated in Ireland v. United Kingdom: i.e., “beyond reasonable doubt” (BRD), satisfied through “sufficiently strong, clear and concordant inferences” drawn from consistent reports and materials (Ireland v. United Kingdom, para. 161). In applying this standard, Strasbourg has long accepted the use of circumstantial evidence, contextual inference, constructive knowledge, and even burden-shifting to the respondent State. On this basis, the ECtHR characterised the pattern of violations as amounting to an “administrative practice”—that is, repetition of acts (Ukraine and the Netherlands v. Russia (dec.), para. 825) combined with official tolerance (Ukraine and the Netherlands v. Russia (dec.), para. 826). Within this framework, it identified as interconnected components of the policy: the banning of the Mejlis, the representative organ of the Crimean Tatars; the closure of Ukrainian- and Crimean Tatar-language broadcasting; the suppression of Ukrainian-language education and the targeting of Ukrainian-speaking schoolchildren; the forcible transfer of Ukrainian children to Russia; and the systematic indoctrination of pupils with pro-Russian narratives denying Ukraine’s statehood and portraying it as a Soviet creation (paras. 1346, 1352, 1356, 1486–1491, 1494, 1569, and 1588).

In Ukraine and the Netherlands v. Russia, the Court found the respondent State responsible for multiple breaches of the Convention—including Articles 2, 3, 4 § 2, 5, 8, 9, 10, and 11, as well as Articles 1 and 2 of Protocol No. 1—committed “without discrimination on the grounds of political opinion and national origin” within the meaning of Article 14 (para. 1607). This dual-ground finding is doctrinally significant: it rejects the premise that political and ethnic motives are mutually exclusive. In the Court’s view, in an armed conflict, the suppression of political dissent could be inseparable from discrimination against a national or ethnic group, with both strands forming part of the same state policy. Methodologically, the ECtHR applied its established pattern-based evidentiary approach, under which discriminatory intent may be inferred from sufficiently strong, clear, and concordant inferences drawn from the broader political context, without requiring direct proof in the form of expressly discriminatory language or instructions.

The Court’s reasoning in this case illustrates the broader evolution of its jurisprudence on racial and group-based discrimination, particularly regarding indirect forms. Historically, the ECtHR approached indirect discrimination with caution, emphasizing individual circumstances and demanding compelling evidence to establish a prima facie case. In Ukraine and the Netherlands v. Russia, the Court relied on a combination of factual, regulatory, and contextual evidence—including documented administrative measures, attacks on civilians expressing pro-Ukrainian political views, and broader Russian narratives undermining Ukrainian statehood—to show that adverse effects on individuals were neither accidental nor incidental, but systematically linked to both political opinion and ethnic identity. By considering both direct acts of targeting, such as violence against pro-Ukrainian activists and Crimean Tatars, and indirect measures, such as the suppression of Ukrainian-language education and forced transfers of children, the Court applied a nuanced, sliding-scale approach to discrimination. This methodology reflects its willingness to infer discriminatory intent from patterns and cumulative effects, even absent formal statistical proof. Significantly, the judgment underscores that Article 14 ECHR protects both political opinion and national origin, and that a failure on behalf of a State to prevent and mitigate measures disproportionately affecting a particular group constitutes a violation, even when the actions appear neutral on their face.

…And Back to The Hague: The ICJ’s High-Evidence Hurdle for Racial Discrimination Against Crimean Tatars in Ukraine v. Russian Federation

Unlike the ECtHR, the ICJ in Ukraine v. Russia assessed the allegations of racial discrimination strictly under CERD’s jurisdictional yardstick, thus confining its competence ratione materiae to the list of prohibited grounds in Article 1(1): “race, colour, descent, or national or ethnic origin”—a numerus clausus (Thornberry, p. 98) which, as is evident, excludes political opinion. In prior contentious cases, most notably in Qatar v. United Arab Emirates, the Court construed “origin” as a characteristic fixed at birth (Preliminary Objections, para. 181; see also Desierto’s analysis here). As is evident, this interpretive posture imposed a demanding causation test: Ukraine was required to demonstrate that the contested measures were adopted because of one of the enumerated grounds, rather than merely correlated with them. Refusing to subsume political opposition under “ethnic origin”, the ICJ concluded that the targeting of Crimean Tatars and ethnic Ukrainians — including the Mejlis ban — was primarily political in nature. Applying the high evidentiary threshold already established in DRC v. Uganda (paras. 210, 237) and Bosnia and Herzegovina v. Serbia and Montenegro (paras. 209-210), which requires “convincing evidence” in cases of massive human rights violations, the ICJ dismissed most of Ukraine’s CERD claims for want of direct proof of ethnic animus. In doing so, it stressed that many victims were pro-Ukrainian activists, that comprehensive statistical data were unavailable due to Ukraine’s lack of access to Crimea, and that other groups, including Russians and Central Asians, had also suffered adverse treatment — factors which, taken together, complicated the inference that ethnicity was the decisive ground (paras. 216-217).

Several judges appended separate opinions. Then-President Judge Donoghue criticized the majority’s view of ethnicity as fixed at birth, arguing that ethnic identity can be shaped or reinforced by political marginalization and State practices (Separate Opinion, para. 11). She emphasized that for many minorities, political and ethnic identities are inseparable — a view echoed in the writings of distinguished scholars (Thornberry, pp. 134-137) and further reiterated by the expert evidence submitted by Ukraine. Judge ad hoc Pocar emphasized that, in a repressive environment, it is nearly impossible for Ukraine to provide direct evidence of intent, effectively demanding from the applicant an almost probatio diabolica (Separate Opinion, paras. 23-24). Similarly, in the recent Azerbaijan v. Armenia case, the ICJ acknowledged that racial discrimination may arise from facially neutral measures producing disparate effects (Preliminary Objections, paras. 95-96). Yet, in doing so, it arguably — and problematically (Joint Dissenting Opinion of Judges Nolte, Charlesworth, Cleveland and Tladi, para. 21) — placed the burden of proof squarely on the applicant, adhering to the strict maxim onus probandi incumbit actori. In practice, the “credible evidence” standard, coupled with the strict allocation of the burden of proof, renders the successful invocation of CERD exceedingly difficult, particularly in contexts of occupation, armed conflict, or systemic repression. Indeed, States alleging violations face significant challenges in accessing internal records or reliable statistical data, with the result that even clear and sustained patterns of marginalization may fail to satisfy the ICJ’s demanding evidentiary threshold. The outcome is a jurisprudence that risks privileging formalistic equality over substantive protection, leaving vulnerable groups exposed to ostensibly neutral measures that, in reality, entrench profound discriminatory purposes based on race.

In Ukraine v. Russian Federation, the ICJ upheld only one claim under CERD: the reduction of Ukrainian-language education in Crimea. By a vote of 13–2, it held that this measure violated both Article 2(1)(a) and the right to education under Article 5(e)(v). Distinct from the other claims, this was framed in terms of language — a dimension the majority acknowledged as an essential social bond for ethnic groups (paras. 335, 354–357). This outcome stands in marked contrast with the ICJ’s dismissal of claims concerning Crimean Tatars and ethnic Ukrainians, where ethnicity was artificially disentangled from political opinion. Although the reasoning reveals an internal inconsistency, the recognition of language as intrinsically linked to ethnic origin suggests a latent convergence with Strasbourg jurisprudence, which treats political, cultural, and ethnic dimensions as mutually reinforcing rather than compartmentalized. By affirming language as a core marker of ethnic identity, the ICJ edged — albeit cautiously — towards the ECtHR’s more contextual and intersectional approach, leaving open the prospect for a development of case law less bound by rigid formalism and more attuned to the need for protection of minority communities under repression.

Conclusion: Navigating Multi-Forum Approaches to Inter-State Discrimination Claims

The experience of Ukraine and the Netherlands v. Russia illustrates both the promise and limits of international adjudication in cases of racially and politically motivated repression. By consciously engaging with, yet departing from, the ICJ’s CERD reasoning, the ECtHR demonstrates how a human rights forum can navigate the gaps left by inter-State mechanisms. This selective engagement — what might be called “cherry-picking” judicial dialogue — highlights that coherence across international courts is less a product of formal alignment and more the result of pragmatic adaptation to institutional strengths and constraints. For minority groups like the Crimean Tatars and ethnic Ukrainians, the ECtHR’s openness to contextual inference, mixed-motive discrimination, and cumulative harms offers a far more capacious avenue for accountability than the ICJ’s narrow, evidence-intensive approach. The cases underscore that multi-forum strategies are not redundant but essential insofar as they allow affected (and often vulnerable) States to leverage parallel and complementary procedural strengths, illuminating the intersection of political and ethnic discrimination in ways that a single forum cannot. Ultimately, Ukraine and the Netherlands v. Russia positions Strasbourg as a critical bulwark for the safeguard of minorities and vulnerable groups’ rights. At the same time, it underscores the need to activate inter-State procedures more broadly, including in universal (and not only regional) human rights treaties, where they could ‘compensate’ for the ICJ’s current ‘struggle’ with grounds of discrimination under CERD and, more general, its structural limitations in addressing complex forms of racialized repression, particularly in conflict settings.