Control in the context of chaos: the war in Ukraine and Russia’s jurisdiction under the ECHR

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In January 2021, the Grand Chamber of the European Court of Human Rights (the Court) issued its long-awaited judgment in Georgia v Russia (II) related to the armed conflict that took place between Georgia and Russia in August 2008, and the continued Russian presence in South Ossetia and Abkhazia. A contentious aspect of the Court’s judgment concerned the finding that the events that had occurred on the territory of Georgia during the five-day active phase of hostilities did not fall within the jurisdiction of the Russian Federation within the meaning of Article 1 of the European Convention on Human Rights (ECHR). In other words, Russia’s actions did not trigger application of the ECHR and its concomitant obligation to comply with the ECHR on the territory of Georgia during the active phase of hostilities of an international armed conflict. The judgment in the inter-state case was follow by the Court’s decision declaring inadmissible an individual case lodged by several applicants against Georgia. In Shavlokhova and others v Georgia, the Court found that active fighting between the military forces of the two states prevented Georgia from exercising its jurisdiction under Article 1 ECHR. More specifically, in the Court’s view, the events during the active phase of hostilities could not be considered ‘as attracting the normal exercise of territorial jurisdiction of Georgia […] merely because the territory in which the hostilities took place was formally Georgian’ (§ 33).

The Court’s finding on the non-application of the ECHR to the use of military force during the active phase of hostilities in Georgia v Russia (II) has been much discussed (see Marko Milanovic, Kanstantsin Dzehtsiarou, Marco Longobardo and Stuart Wallace, Floris Tan and Marten Zwanenburg). This finding has significant implications for inter-state and individual cases lodged in connection with international armed conflicts between Ukraine and Russia, and Armenia and Azerbaijan. The issue became once again topical in 2022 with Russia waging full-scale war against Ukraine, which prompted Ukraine to lodge its tenth application against Russia before the Court. In Ukraine v Russia (X), Ukraine is complaining about Russia’s targeted, indiscriminate and disproportionate attacks against civilians and their property across Ukraine. In an unprecedented move 23 states have requested leave to intervene as third parties in this case. Two more states intend to lodge such a request. As Justine Batura and Isabella Rosini write, interventions by more than a half of state-parties to the ECHR is an opportunity for them to weigh in on the contentious issue of interaction between human rights law and international humanitarian law.

Some scholars have critiqued the Court’s approach in Georgia v Russia (II), arguing in favour of the Court finding that kinetic military action by a state on the territory of a foreign state entails exercise by the former state of its jurisdiction within the meaning of Article 1 of the ECHR (see, for example, Marko Milanovic, Kanstantsin Dzehtsiarou). This post argues that even under the current jurisprudence, it would be wrong to conclude that Russia’s conduct of full-scale war in Ukraine does not amount to exercise of its extra-territorial jurisdiction on the territory of Ukraine. The reason is that the situation in Ukraine since 24 February 2022 is factually distinct from, what the Court calls, the five-day war in Georgia in August 2008 in that there are clear instances of exercise of spatial and personal jurisdiction against the backdrop of ongoing active hostilities.

Exercising control in the context of chaos

In Georgia v Russia (II), the ECHR reasoned that conduct of active hostilities, armed confrontation and fighting between military forces of two states essentially means that the states are seeking to establish control over an area. This implies that there is neither effective control over the area, nor any form of state agent authority and control over individuals in this area (§§ 133, 137). As a result, the well-established criteria for the exercise of extraterritorial jurisdiction by a state were not met in respect for military operations during the active phase of hostilities between the two states (§ 138).

To be sure, the full-scale war in Ukraine involves conduct of active hostilities and military confrontation where the parties seek to establish control over or hold on to a territory. But there are also clear instances of exercise of effective control by the Russian armed forces over parts of Ukrainian territory for a (relatively) extended periods. Between February and March, Russian armed forces controlled parts of Chernihiv, Kyiv and Sumy regions. This was also the case in parts of Kharkiv region between February and September 2022, and in the city of Kherson between February and November 2022. This remains the case in parts of the Donetsk, Luhansk, Kherson and Zaporizhia regions.

There are also many straightforward instances of exercise of control and authority over individuals by members of Russian armed forces and other military units under Russia’s control in Ukraine. Thus, execution, torture, ill-treatment, confinement, or sexual abuse – which are reported to have been committed by Russian forces in various parts of Ukraine – necessarily implies exercise of physical control over the person.

The fact that such control over an area or persons takes place against the backdrop of active hostilities should not lead to the non-application of the Convention to state’s conduct. To hold otherwise would be inconsistent with the longstanding jurisprudence that exercising effective control over an area through military presence and exercising control and authority over an individual through state agents outside the state’s own territory amounts to exercise of jurisdiction by that state within the meaning of Article 1 of the ECHR (Al-Skeini and Others v United Kingdom, §§ 130-139). In fact, in Georgia v Russia (II), the Court recognised the jurisdiction of the Russian Federation in respect of treatment and confinement of civilians and prisoners of war which commenced while the active hostilities where ongoing. Thus, the civilians in question were detained between 10 and 27 August 2008, and the POWs between 8 and 17 August 2008. These periods of detention overlap with the active phase of hostilities that took place between 8-12 August 2008 and was found by the Court not to entail exercise of jurisdiction by Russia. This could be taken to suggest that a state can be exercising control and authority over an individual for the purposes of jurisdiction under Article 1 of the ECHR even during active hostilities. However, the Court seems to be following a different reasoning. Its conclusion regarding Russia’s jurisdiction over civilians and prisoners of war is based primarily on the fact that the civilians and POWs were also detained during the occupation phase which commenced after the hostilities had ceased. In particular, with regard to the civilians, the Court found that ‘in so far as [they] were mostly detained after the hostilities had ceased, […] they fell within the jurisdiction of the Russian Federation within the meaning of Article 1 of the Convention’ (§§ 238-239). As regards the POWs, the Court reasoned that ‘given that they were detained, inter alia, after the cessation of hostilities, […] they fell within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention’ (§§268-270).

The fog of war

Other reasons advanced by the Court – and much criticised by scholars as irrelevant and unconvincing – in support of its refusal to change its approach regarding the lack of exercise by state of jurisdiction during active hostilities are of a practical nature. In Georgia v Russia (II), the Court referred to the large number of victims, contested episodes and evidence involved as well as the difficulty of establishing the relevant circumstances (§ 141). In Shavlokhova and others v Georgia, the Court noted the impossible task of establishing ‘direct and immediate cause’ or at least ‘sufficiently close proximity’ between the actions of Georgian army and their impact on the applicant (§ 32). The difficulty stemmed from the fact that both states-parties to the armed conflict resorted to massive bombings and shelling of a territory during the same period.

These considerations so far as they demonstrate the Court’s reluctance to deal with the chaos of war apply with equal, and in some respect even greater, force as regards the war in Ukraine. Indeed, in view of the scale and length of the war, the number of affected victims and contested episodes can be much higher. At the same time, the full-scale war in Ukraine that commenced on 24 February 2022 is perhaps one of the best-documented armed conflicts in history. Various domestic and international governmental and non-governmental actors are involved in monitoring and documentation, either on the ground or through open source, of the war’s effect on Ukraine’s population. For instance, the UN Independent International Commission of Inquiry on Ukraine is mandated to investigate and establish the facts of, among other things, alleged violations and abuses of human rights in the northern regions of Ukraine in late February and March 2022. The availability of information may render the Court more willing to engage with the merits of war-related applications.


Russia had been waging a full-scale war in Ukraine for about six months before it ceased being a party to the ECHR on 16 September 2022. In those six months, there have been clear instances of Russia’s armed forces or Russia-controlled armed groups exercising effective control on parts of Ukrainian territory. There have also been straightforward cases of members of these forces exercising physical control over individuals’ life and personal liberty in Ukraine. The documentation of the conflict by domestic and international actors should facilitate the task of establishing circumstances of such territorial or personal control at least in most, if not all, potential cases. The Court should therefore take a case-by-case approach to examination of the complaints stemming from the war in Ukraine. A general conclusion that the Convention does not apply to Russia’s actions during its full-scale war in Ukraine, similar to the Court’s finding on the five-day war in Georgia, would be against its well-established jurisprudence on the spatial and personal bases for states’ extraterritorial jurisdiction.

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