The ECtHR in Georgia v. Russia – a farewell to arms? The effects of the Court’s judgment on the conflict in eastern Ukraine

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On 21 January 2021, the ECtHR rendered its judgment on the merits in Georgia v. the Russian Federation (II). The complaint lodged by Georgia concerned grave human rights violations committed by Russia or non-state armed groups under its control in Abkhazia, South Ossetia and the ‘buffer zone’. In its consideration of the question as to whether the violations occurred within Russia’s jurisdiction under Article 1 of the European Convention on Human Rights (the ‘Convention’), the Court analysed separately the period of active hostilities between Russia and Georgia and the subsequent occupation phase. It asserted Russia’s jurisdiction during the occupation, but opined that Russia did not exercise effective control during the 5-day military operation in 2008.

The Court’s restricted approach on the matter, albeit understandable, is troubling. Most importantly, it undermines human rights protection during active hostilities. Logically, the Court’s findings have provoked lively debates among the academia (see, for example, here and here).

This post considers the implications of the ECtHR’s recent judgment for the Court’s future cases, specifically, for the upcoming Ukrainian individual and Ukrainian and Dutch inter-state complaints. It concentrates on the Court’s analysis of the exercise of the jurisdiction under the Convention and does not review any other findings in the judgment which were analysed in great detail by Professor Marko Milanovic.

Two exceptions to the territorial principle

The Grand Chamber in Georgia v. Russia found that neither ‘effective control’ nor ‘state agent’s authority and control’ can be generally invoked as grounds for extraterritorial jurisdiction with respect to an area of active hostilities. Regarding the ‘effective control’, the ECtHR concluded that an ongoing military operation with intense fighting over a territory, per se, signifies that both sides to the conflict lack control over the battlefield. ‘State agent’s authority and control’ exception, in turn, was limited by the Court to the ‘exercise of physical power and control’ over an individual excluding the incidents of, for instance, shelling or bombardment. This diverts from earlier practice where the Court extended the state’s extraterritorial jurisdiction to the cases of fire aimed at individuals by the police or military forces (see, for instance, Solomou and Others v. Turkey (no. 36832/97); Andreou v. Turkey (no. 45653/99)). The Court explained that those instances represented ‘isolated and specific acts involving an element of proximity’.

The Court’s overcautious approach to adjudicating the incidents of war is quite understandable. The number of the armed conflicts it has to consider is growing. The judges also seem to fear that the unrestricted application of the extraterritorial jurisdiction may transform a regional human rights court into an institution considering the conduct of hostilities worldwide. However, this rationale, although reasonable, may not be in line with the Court’s wider role to ensure an effective protection of human rights enshrined in the Convention. One may question whether a higher complexity of cases or considerations or increasing workload indeed outweigh the potential ramifications of the Court’s judgment.

Implications for Ukraine

The Court’s categorical interpretation of the jurisdictional matter may detrimentally impact similar cases of the armed hostilities.

The uneven character of war

First, the Court’s approach may work well in situations of military operations with a clear distinction between an active phase and a ceasefire. In more tangled conflicts without one start and one cessation of the armed confrontation it may, at best, be very hard to apply.

The Court’s findings may haunt the Grand Chamber in the Ukrainian cases. The conflict taking place in Ukraine differs in some crucial respects from the Russian-Georgian war. First, the fighting has been taking place in different areas of the Donetsk and Luhansk regions simultaneously since early 2014. Second, on numerous occasions, the control over certain locations passed from one party to another multiple times. For example, Ukrainian town of Debaltseve taken by the armed groups in the spring of 2014 and liberated by Ukrainian forces in July 2014, was again seized by the rebels, after heavy fighting, in February 2015. Third, the hostilities and frail ceasefires (either on the whole conflict area or within separate zones; for an indefinite or short term; respected or violated by the parties) followed each other in a quick succession. An additional complication is that Ukraine and Russia have widely diverging narratives about Russia’s involvement in the hostilities. This is in a stark contrast with the Georgian war, where Russia acknowledged its direct participation in the conflict.

As of today, in addition to the inter-state applications, the Court has received over 7,000 individual complaints regarding the situation in Ukraine, most of which relate to the Donbas conflict. If the Court opts to draw a line between the episodes of active hostilities and those of cessation of violence for the purpose of establishing state’s jurisdiction, it would inevitably engage in an endless examination of the alternative facts presented by Ukraine and Russia. This would be an overwhelming exercise for a human rights court. Alternatively, the Court may decide to come up with a more nuanced approach to the much more factually complex Ukrainian situation.

Creating lawless areas

The second issue is that, unlike the relatively short-termed active phase of the Russia-Georgia war, hostilities in eastern Ukraine have been ongoing with various degrees of intensity for almost 7 years now. In Georgia v. Russia, the Court’s refusal to extend jurisdiction affected a 5-day period. In Ukraine, many settlements remained active battlefields for months or years.

This leads to an even more concerning question. If neither party to the conflict exercised control over those settlements for a significant period during the hostilities, would it create a ‘vacuum of protection’ which is exactly the type of a lacuna the Court seeks to avoid? (see e.g. Al-Skeini and Others v. the United Kingdom, (no. 55721/07)). Judge Grozev raised this issue in his Partly Dissenting Opinion, stating that such strict application of the ‘effective control’ concept would exclude the jurisdiction of both parties over the battlefield. In eastern Ukraine, this might mean the lack of jurisdiction in thousands of individual applications concerning the violations committed by the rebels or state armed forces during the military operation.

To fill this gap, the ECtHR held that the states continued to be bound by the rules of the International Humanitarian Law (‘IHL’). Although this rationale is correct, the Court seems to ignore the apparent shortcomings of declaring IHL to be the only legal regime governing a protracted on-again, off-again armed conflict.

First, there is no permanent international court considering individual complaints regarding IHL violations. The Court’s reluctance to extend the Convention’s protection over the hostilities phase may in fact deprive thousands of individuals of an effective remedy before an independent international court and leave their claims for national courts to adjudicate. This can be particularly damaging for Donbas cases, given the poor judicial track-records of both Ukraine and Russia. As of January 2021, 38.8% of all pending applications submitted to the ECtHR were complaints against Russia (22%) and Ukraine (16.8%). These numbers indeed bring out the systematic problems within the states’ judicial systems. It is highly probable that domestic proceedings would not offer the conflict’s survivors justice and remedies they are looking for.

Second, the protection granted under the Convention covers some rights and freedoms, which are not guaranteed or are not so widely covered under IHL, such as the freedom of the press, the right to assembly, strike or vote, as well as the right to private and family life. Moreover, even within the IHL the scopes of protection guaranteed during international or non-international armed conflicts differ.


It is unclear to what extent the ECtHR will apply this take on extraterritorial jurisdiction to the Ukrainian conflict. The Court’s findings pertain to the interplay between war and human rights in general; thus, it is hard to imagine that the judges did not keep in mind Ukrainian and other conflict-related cases when deciding Georgia v Russia. At the same time, there are reasons to expect that the Court will come up with a more nuanced interpretation in its Ukrainian cases. Although the ECtHR’s findings in Georgia v Russia is not (yet) a well-established jurisprudence, it has already been harshly criticised by a number of the Court’s judges.

Whether or not the Court’s approach will be subsequently revised, the message it sends now is explicit. The Court does not wish to tread on IHL ground, even if it means leaving the human rights angle of military operations without adjudication.


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