The European Court’s Admissibility Decision in Ukraine and the Netherlands v Russia: The Good, the Bad and the Ugly – Part I

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Yesterday the Grand Chamber of the European Court of Human Rights delivered its much-anticipated decision on jurisdiction and admissibility in the interstate case of Ukraine and the Netherlands v. Russia (nos 8019/16, 43800/14 and 28525/20 – decision; press release). The Court declared the applications admissible, in a clear win for the applicant governments. It also made numerous pronouncement of systemic importance for international human rights law, most of them moving the Court’s jurisprudence in a good, sensible direction. (But not all).

The case resulted from a joinder of two applications filed against Russia by Ukraine, dealing with questions of human rights violations in Eastern Ukraine starting in 2014 and with instances of abduction of children, and an application filed by the Netherlands that deals with the 2014 downing of the MH17 airliner over Ukraine. For some background on the case and our prior coverage on EJIL: Talk!, including the relevant recent criminal judgment before Dutch courts on the MH17, see here, here and here; see also this post by Marieke de Hoon over on Just Security.

The cases raises many questions, both those of a preliminary nature and those of the merits, and is of course greatly complicated by Russia’s non-participation after its expulsion from the Council of Europe. Some of the most important issues related to the threshold question of Russia’s jurisdiction in the sense of Article 1 ECHR, i.e. that of extraterritorial application; the attribution of conduct under the rules of general international law, bearing in mind that some of the violations in the case were at least prima facie committed by non-state actors; the relationship between jurisdiction and attribution; the application of the ECHR in armed conflict; and the different possible framings of Russia’s responsibility for some of the violations alleged (commission v. complicity v. failure to prevent). Readers might recall that my former colleague Sangeeta Shah and I filed an amicus curiae brief with the Court, on behalf of the Human Rights Law Centre of the University of Nottingham, which focuses solely on the MH17 part of the case, in order to assist the Court with clarifying some of these issues.

Readers will also recall how on many of these points the Ukraine and the Netherlands v. Russia case sits in the shadow of some the Court’s recent restrictive jurisprudence on the application of the Convention extraterritorially and in armed conflict, specifically its judgment in Georgia v. Russia No. 2 (discussed extensively here). Other relevant recent cases include, first, the Grand Chamber’s 2021 admissibility decision in Ukraine v. Russia re Crimea, in which it found that Russia had jurisdiction over Crimea on the basis of control over the territory from the early stages of the conflict (discussed here). Second, the (refreshingly bold and subversive) 2021 Chamber judgment in Carter v. Russia, no. 20914/07, in which the Court found that Russia had assassinated Alexander Litvinenko in London and had jurisdiction over him (discussed here), and in which it employed a very sensible (and legally correct) approach to questions of jurisdiction and attribution, departing from the strictness of the GvR judgment while claiming to be faithfully applying it, while also being very strong on matters of evidence. And obviously the Court’s findings in Ukraine and the Netherlands v. Russia will have implications on other pending interstate and individual cases before the Court dealing with the conflict in Ukraine.

So what did the Court now decide? The bottom line is that the joined applications were found admissible on virtually all counts, and that the case will now proceed to the merits. The decision is very much a win for the applicant states, as well as for all those individual claimants whose cases were suspended until the Court finished its consideration of the interstate one, especially on the MH17. The Court grappled with some complex issues directly at the admissibility stage, even though it could have left many of them to the merits – the key one being the relationship between Russia and the Donetsk and Luhansk separatist entities, which the Court found to have been under Russia’s control in perhaps the most impressive piece of factual, multi-factorial analysis of the relevant evidence that I have seen. The Court made important pronouncements on jurisdiction and attribution, but as ever with these issues the judgment is a mixed bag. On the impact of the GvR No. 2 ‘contexts of chaos’ to this case the Court basically punted to the merits, which is perhaps the best that could have been expected. There’s a lot in there that’s good, but also some stuff that’s bad, and one point that’s just ugly. And the Court also dealt quite sensibly with some specific issues of admissibility, such as the application of the six-month rule in the context of an interstate dispute. 

As explained, the decision is a very long and rich one, and I will not summarize it in detail – the press release does a good job of that, for those who are interested. Nor I will do a blow by blow account of every single point of law, because there are just so many. Rather, I will focus on those I thought are of the greatest relevance and potential impact for future cases, especially with regard jurisdiction, attribution of conduct, and the application of the ECHR in armed conflict.

(Health warning – a very long post, in two very long parts!)

The Good

Let’s start with the good. There is of course the bottom-line conclusion that the case will, almost in its entirety with just a few points declared inadmissible, proceed to the merits. But frankly in the climate of the ongoing war in Ukraine it would have been difficult to imagine the Court doing otherwise. Deciding this case and all the other interstate and individual cases dealing with the conflict on their merits is still a very, very long way off.

As important (or maybe even more so) are the broader questions of principle. On some of these this decision is really good. By far the best part of the decision is how the Court approaches questions of evidence. Readers might recall the aggressive approach to issues of proof, including the use of inferences, that a Chamber of the Court employed in Carter v. Russia to conclude that Russia assassinated Litvinenko. Simply put, this decision is Carter on steroids. Or it’s Carter’s proof-daddy (pick your metaphor, whatever). I have never seen the Court – and probably any international court – take such an imperious, yet detailed and rigorous approach to evidence. This is just outstanding, and bodes well for future complex cases of this kind before the Court. But this will only be possible on the assumption that Council of Europe member states do the right thing and actually provide the Court with the resources it needs to do its job properly.

At paras. 454-459 the Court sets out its general strategy with regard to evidence. It berates Russia for failing ‘to provide submissions or evidentiary material in respect of a number of the aspects identified, citing national security concerns and lack of relevance of the material to the questions under judicial consideration,’ while observing ‘that the information and supporting material sought was wholly or in large part within the exclusive knowledge of the respondent State.’ (455) It then says (456, emphasis added)):

The Court considers that through various sets of memorials, there has been a distinct lack of frankness and transparency in the written submissions provided by the respondent Government. For example, the evidence clearly demonstrates the importance of information concerning Igor Girkin, who was a key player in the events in Crimea and in eastern Ukraine and is one of the defendants in the Dutch criminal proceedings concerning the downing of flight MH17 (see paragraph 93 above). The allegation is that he was an agent of the FSB. The respondent Government in their submissions appeared to be deliberately vague when discussing Mr Girkin (see paragraph 511 below). They did not confirm whether the allegation was true and referred merely to press reports that Mr Girkin had retired by April 2014. There can be no doubt that they are in a position to clarify whether Mr Girkin was employed by the FSB and, if so, whether and when he retired. Furthermore, given the Court’s finding of Russian extraterritorial jurisdiction over Crimea from 27 February 2014, the respondent Government were also in a position to explain Mr Girkin’s involvement in the events there and the nature of the instructions given to him (see Ukraine v. Russia (re Crimea), cited above, in particular §§ 33, 47, 329 and 352).

The ‘distinct lack of frankness’ is then followed by the assessment that ‘the respondent Government’s responses to the specific request for further information and material in the supplementary memorials were superficial and evasive (457, emphasis added)) Moreover (ibid):

While national security concerns may be relevant in respect of some of the information sought, where they have been invoked by the respondent Government they have been deployed with a broad brush to justify a refusal to provide information and material which was necessary to assist the Court. There has been no attempt to engage with the Court with a view to finding a suitable manner of providing the information sought while protecting any justified national security concerns (see Georgia v. Russia (II), cited above, § 345).

The Court therefore concluded ‘that the approach taken by the respondent Government does not represent a constructive engagement with the Court’s requests for information or, more generally, with the proceedings for the examination of the case. It considers that the respondent Government have fallen short of their obligation to furnish all necessary facilities to the Court in its task of establishing the facts of the case, as required under Article 38 of the Convention and Rule 44A of the Rules of Court. It will therefore draw all the inferences that it deems relevant (see paragraphs 435-439 above).’ (459)

And oh my did the Court draw inferences, as I’ll explain in a moment. It also relied extensively on the factual findings in the reports of international bodies such as the OHCHR (a trend in international jurisprudence in these types of cases), but also on the findings of the Joint Investigatory Team (JIT) on the downing of the MH17. Most remarkably – and this is also perhaps a first for an inter-state court – the Court on several important points relied on the work of open-source investigators such as Bellingcat, which it found ‘credible and serious’ (472).

Turning to the question of state jurisdiction under Article 1 ECHR, the Court (quite properly) distinguished it from the question of its own jurisdiction (503-507), and then turned to attempting to clarify the relationship between the notion of jurisdiction and attribution of conduct in the law of state responsibility. Recall here for a moment how jurisdiction is the question of whether the Convention applies in the first place, and has two basic forms – state control over territory, or state control over the victim of a human rights violation. Attribution, by contrast, is the legal operation of assigning to a state the conduct of a human being, whether that conduct is one of action or of omission.

But here the Court falters somewhat (547-551):

  1. The Convention organs have developed a framework for the interpretation and application of Article 1 of the Convention. The relevant principles have evolved with a view to the effective protection of human rights in a largely regional context. Their origins pre‑date the ARSIWA (A 85-88), which were only adopted in 2001 and took into account the prior case-law of the Convention organs when formulating the relevant rules under international law.
  2. The Court’s case-law demonstrates that the assessment of whether a respondent State had Article 1 jurisdiction in respect of complaints about events outside that State’s formal territorial borders may involve consideration of ratione loci or ratione personae jurisdiction, or both. Where the principal argument is that the respondent State exercised effective control over an area, the question that arises is, essentially, whether that area can be considered to fall within the ratione loci jurisdiction of the respondent State, with all the attendant rights and responsibilities that entails, notwithstanding the fact that it falls outside its territorial boundaries. Where the argument is rather that the victims fell under State agent authority and control in territory which the State did not control, the principal question will be whether the respondent State exercised ratione personae jurisdiction.

With all due respect for the Court, I really don’t think that using the Latin labels ratione loci and ratione personae is really helpful here, because these labels are often used to discuss the jurisdiction of the Court (or a court), not the jurisdiction of a state, which is what’s at issue here. This is just a source of confusion. Then it gets a bit worse:

  1. Even in cases where it is established that the alleged violations occurred in an area under the respondent State’s effective control (and thus within its ratione loci jurisdiction), the latter will only be responsible for breaches of the Convention if it also has ratione personae jurisdiction. This means that the impugned acts or omissions must have been committed by State authorities or be otherwise attributable to the respondent State.

Now this I just don’t understand. The Court correctly distinguishes between the spatial and the personal models of jurisdiction. But why then say (entirely incorrectly) that for a state can violate the Convention only if it has both types of jurisdiction, and appears to equate personal jurisdiction with attribution? This just makes no sense, and is not what the Court actually does in the case. Rather, as the Court correctly says in the remainder of the paragraph, the state will be responsible for its own action or omission, i.e. the breach must be attributable to it. The Court then continues:

  1. The Court has consistently explained that issues of attribution and the responsibility of the respondent State under the Convention for the acts complained of fall to be examined at the merits phase of the proceedings (see, recently, Ukraine v. Russia (re Crimea), cited above, § 266, and the references cited there). It is, however, important to clarify that this concerns the evidential question whether the act or omission complained of was in fact attributable to a State agent as alleged. It does not preclude an assessment, at the admissibility stage, of whether particular individuals or entities could be considered State agents such that any actions shown at the later merits stage to have been taken by them would be capable of giving rise to the responsibility of the State (see, for example, the approach taken in the Commission’s decision of 26 May 1975 in Cyprus v. Turkey, nos. 6780/74 and 6950/75, D.R. 2, p. 125 at p. 137, and its subsequent report, cited above, p. 32 at § 84).
  2. Thus while the test for establishing the existence of jurisdiction under Article 1 of the Convention is not the same as the test for establishing a State’s responsibility for an internationally wrongful act under international law, now codified in ARSIWA (see Catan and Others, cited above, § 115), there may be some areas of overlap in so far as the Court is invited to examine whether any acts of the perpetrators are to be attributed to the State in the context of its jurisdiction assessment. In determining whether an individual or entity may be considered a State agent, the rules set out in the ARSIWA as applied by international courts and tribunals are clearly relevant and the Court’s case-law shows that they are taken into account (see, for example, Makuchyan and Minasyan v. Azerbaijan and Hungary, no. 17247/13, §§ 112‑18, 26 May 2020; and Carter v. Russia, no. 20914/07, §§ 162-69, 21 September 2021).

This is all correct, except for the fudge towards the very end. As Sangeeta and I have tried to explain in our amicus brief, the conduct constitutive of jurisdiction (which may or may not be identical to the conduct constitutive of the violation) must be attributable to the state. As such, some attribution issues can be decided at the admissibility stage and not on the merits. In other words, the state must exercise jurisdiction through its own organs or agents (e.g. Turkey controlling Northern Cyprus through its own armed forces), and to establish whether certain individuals are such the Court needs to apply the attribution standards of the law of state responsibility (which are binding law, not just something relevant and to be taken into account).

At paras. 552 et seq the Court then ruminates a bit on the different models of jurisdiction. But then things become more interesting when it addresses the GvR No. 2 judgment which would, if applied as it was actually written, basically exclude from the purview of the Convention the entirety of the war in Ukraine. It would of course have been wonderful for the Court to have now just overruled GvR then and there. But that would be expecting too much, especially bearing in mind the particular institutional context. Rather, instead of overruling GvR the Court starts qualifying it. Before quoting from that judgment the Court says outright that ‘Extraterritorial jurisdiction is not excluded in situations of international armed conflict: the Court’s case-law is replete with examples of States being held responsible for acts which occurred in the context of an international armed conflict taking place outside their own sovereign borders.’ (556). And then it says this (558, emphasis added):

In Georgia v. Russia (II), there was a clear, single, continuous five‑day phase of intense fighting during which Russian troops advanced on Georgian territory seeking to establish control (“the five-day war”); after that, a ceasefire agreement was reached and largely observed. The Grand Chamber was therefore able to refer to “the five-day war” as a distinct “active phase of hostilities” and to separate out complaints which it identified as concerning “military operations carried out during the active phase of hostilities”. It summarised the alleged attacks falling under this heading as covering “bombing, shelling and artillery fire” (see, for example, § 51 of the judgment). Since it found jurisdiction to exist in respect of the detention and treatment of civilians and prisoners of war even during the “five-day war” (see §§ 238-39 and 268-69 of the judgment), there can be no doubt that a State may have extraterritorial jurisdiction in respect of complaints concerning events which occurred while active hostilities were taking place. The Georgia v. Russia (II) judgment cannot, therefore, be seen as authority for excluding entirely from a State’s Article 1 jurisdiction a specific temporal phase of an international armed conflict.

Listen, the whole point of all that ‘context of chaos’ stuff in GvR was precisely to exclude entirely a specific temporal phase of an IAC – ‘active hostilities’ – and to do that with regard the actual conduct of hostilities. The reader will by now surely have become aware that the Court had no intention of applying GvR in this case, yet didn’t want to overrule it – that awaits some future judgment. And we’ll come to GvR again later on.

The Court then proceeds to articulate the criteria for spatial and personal jurisdiction (560 et seq), and in doing so things rapidly but mercifully briefly take a turn from the good to the bad to the ugly and back – on which more anon. There is a good, even shining moment when discussing the personal conception of jurisdiction, which, according to the Court ‘encompasses two distinct, albeit potentially overlapping, scenarios:’ (568)

  1. First, it covers the exercise by State agents of physical power and control over the victim or the property in question (see Al-Skeini and Others, cited above, § 136). This clearly includes cases in which the individual is in custody (Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005‑IV). It may also include cases in which freedom of movement or action is subject to a lesser form of restraint (see, for example, Medvedyev and Others v. France, [GC], no. 3394/03, § 67, ECHR 2010).
  2. Second, it covers isolated and specific acts of violence involving an element of proximity (see Georgia v. Russia (II), cited above, §§ 130-32; and Carter, cited above, §§ 129-30). Thus, jurisdiction has been found in respect of the beating or shooting by State agents of individuals outside that State’s territory (see, for example, Isaak v. Turkey (dec.), no. 44587/98, 28 September 2006; and Andreou, cited above) and the extrajudicial targeted killing of an individual by State agents in the territory of another Contracting State, outside the context of military operations (see Carter, cited above, §§ 129-30). The Court has explained that accountability in these situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State which it could not perpetrate on its own territory. In Carter, it added that targeted violations of the human rights of an individual by one Contracting State in the territory of another Contracting State undermined the effectiveness of the Convention both as a guardian of human rights and as a guarantor of peace, stability and the rule of law in Europe (cited above, § 128).
  3. In all cases of State agent authority and control, any jurisdiction established is a personal one over the victim. The extent of the State’s obligations under Article 1 of the Convention is to secure to that individual the Convention rights and freedoms that are relevant to his or her situation. In this sense, therefore, the Convention rights can be divided and tailored (see Al-Skeini and Others, cited above, § 137; and Carter, cited above § 126); the rejection of that proposition in Banković and Others (cited above, § 75) is, therefore, no longer an accurate statement of the Court’s approach under Article 1 of the Convention.

Note two points – the most explicit overruling of Bankovic to date, and the Grand Chamber’s affirmation of the Chamber’s approach in Carter, which applied the personal model to extraterritorial assassination and started the subversive hollowing-out of GvR while pretending to apply it faithfully. I am content. And as I explained before, if all this is true there is no non-arbitrary way of limiting the personal conception of jurisdiction only to targeted violations of the right to life; at a minimum the same approach must apply to all human rights.

Then starts the genuinely epic part of the decision, in which the Court applies the spatial concept of jurisdiction to Eastern Ukraine, finding that Russia had effective control over the separatist territories (576 et seq). The Court does this in more than 120 paragraphs. One hundred and twenty. I can’t summarize this and do it justice, so I won’t even try. It analyzes multiple different factors of influence and control, starting with Russia’s direct military presence in the relevant areas, relying on multiple sources. It does so with an unprecedented degree of detail and granularity, while drawing inference after inference. For example:

  1. This vast body of material provides strong evidential support for the allegation that Russian soldiers were present in the armed groups and that regular Russian troops were deployed in their military units, notably to participate in certain battles. As explained above, the concordant elements revealed in the evidence and the specific, detailed allegations of the applicant Ukrainian Government in this respect call for an explanation from the respondent Government as to the full extent of involvement by its soldiers in eastern Ukraine (see paragraphs 436, 459 and 586 above). However, the respondent Government have provided no convincing arguments that could call into question the credibility of the applicant Ukrainian Government’s version of events and the evidence submitted in support of it (see Ukraine v. Russia (re Crimea), cited above, § 328). The only reasonable inference to be drawn in these circumstances is that the allegations of the applicant Ukrainian Government in this respect are substantially accurate.


  1. Against the weighty evidence of the ongoing, organised provision of weapons and other military equipment from and by the Russian Federation is the suggestion by the respondent Government that the separatists could have acquired their weapons and equipment on the arms market. There is no evidence to support this suggestion. There are no detailed submissions in the respondent Government’s memorials as to how this arms market operates, who are the key players and how and from whom, specifically, the “DPR” and the “LPR” might have sourced the weapons and equipment identified in eastern Ukraine. Nor is there any assessment of the kind of budget which would be required for the purchase on the arms market of the weapons identified in Donbass or analysis of how the necessary funds to make such purchases might have been acquired. There are no submissions on how such purchased weapons entered Ukraine or, in particular in this respect, any acknowledgment that such weapons and equipment crossed the border from Russia. The Court underlines again the acknowledged relationship between the separatist entities and the Russian Federation (see paragraph 458 above). The Court does not consider it credible, in view of this relationship, that the respondent Government would not be in a position to provide more accurate and detailed information as to the source of the weapons and equipment to which the separatists have had access throughout the conflict.


  1. The Court observes that the respondent Government have in the past consented to provide certain information concerning military deployments, including personnel and equipment. In the course of the proceedings in Georgia v. Russia (II), for example, the respondent Government provided exact numbers of military personnel, tanks, armoured fighting vehicles, artillery systems and air defence systems deployed in the conflict in South Ossetia and Abkhazia in August 2008. Such information extended to identifying at least one particular unit deployed there by name and confirming the establishment of a military base with details of the number of personnel stationed there and its military equipment (see §§ 150 and 165 of the judgment). The Court accepts that information about military matters might reasonably be considered sensitive and that its classification for national security purposes is not, in principle, unreasonable. However, the allegations in the present case date back to spring 2014, almost nine years ago. The Court also observes that the Ukrainian authorities were permitted by the Russian Federation to undertake an extraordinary observation flight on 20-23 March 2014 (see paragraph 656 above). In these circumstances, it is difficult to accept that confirming the numbers deployed to border regions within the Russian Federation itself between March and September 2014 could be considered – in general terms and without more explanation – to jeopardise national security. The Court further observes that the respondent Government did not avail themselves of possibilities open to them to ensure that national security interests were protected in the provision of information in these proceedings. Rule 33 § 2 of the Rules of Court provides that public access to a document or to any part of it may be restricted. It would, moreover, have been possible for the respondent Government to remove sensitive passages in documents, to submit a summary of the relevant passages omitting sensitive information or to submit practical proposals of their own to the Court that would have allowed them to satisfy their obligation to cooperate while preserving the secret nature of certain items of information (see Georgia v. Russia (II), cited above, § 345; and paragraph 607 above).
  2. The Court accordingly infers from the respondent Government’s refusal to provide the information requested that the number of troops deployed in the border regions of the Russian Federation and the dates of their deployments corresponded broadly to the allegations made by the applicant Governments. It is also reasonable to infer, against the backdrop of all the information available in the case-file including the evidence as to the presence of Russian military in eastern Ukraine itself, that these troops were deployed to that region in order to be available for further deployment to eastern Ukraine. This constitutes a further example of the military support offered to the separatists by the Russian Federation.


  1. All of this shows that the Russian Federation has played an active role in the financing of the separatist entities. Indeed, there is no evidence before the Court of any other form of financing and no real explanation by the respondent Government of potential alternative sources of funds and services. The elements in the material before the Court paint a consistent picture of significant economic support from the Russian Federation. Again, by virtue of the acknowledged relationship between the “DPR” and the “LPR” on the one hand and the Russian Federation on the other (see paragraph 458 above), the respondent Government ought to be in a position to provide the Court with more precise information in this respect and with documentary evidence supporting its claim that the source of funding was “tax and non-tax revenues from the core business of individuals and legal entities”. The failure to provide any such information or documentation is telling and justifies the drawing of inferences in this respect.

The Court therefore concluded that (693) ‘The available evidence supports the conclusion that by the time of the 11 May 2014 “referendums”, the separatist operation as a whole was being managed and coordinated by the Russian Federation. The Court finds that the appointment of various different leaders of the major armed groups to “government” positions following the “referendums” was subject to Russia’s approval and marked a critical step in the transition of the array of irregular armed groups into a single “separatist administration”.’ Moreover:

  1. The vast body of evidence above demonstrates beyond reasonable doubt that, as a result of Russia’s military presence in eastern Ukraine and the decisive degree of influence and control it enjoyed over the areas under separatist control in eastern Ukraine as a result of its military, political and economic support to the separatist entities, these areas were, from 11 May 2014 and subsequently, under the effective control of the Russian Federation (see paragraph 560 above). The threshold for establishing Russian jurisdiction in respect of allegations concerning events which took place within these areas after 11 May 2014 has therefore passed. Moreover, in response to the invitation in June 2020 to clarify the nature of the current relationship between Russia and the separatist entities (see paragraph 401 above), the respondent Government replied that “[t]here has been no change to the relationship outlined above”. In the absence of any evidence demonstrating that the dependence of the entities on Russia has decreased since 2014, the Court finds that the jurisdiction of the respondent State continued as at the date of the hearing on 26 January 2022. As noted above (see paragraph 393), it may be necessary for the Grand Chamber to assess, at the merits stage, whether the jurisdiction of the respondent Government continued beyond that date.

Essentially, the Court’s conclusion was that Russia effectively controlled the parts of Eastern Ukraine administered by the separatist entities (I will discuss the relationship between this finding and the attribution issue in the next part of the post). The requirements of the spatial model of jurisdiction were met. Then, however, it had to consider the potential impact of the ‘context of chaos’ exclusion from jurisdiction under GvR No. 2, and here it essentially punted and joined this issue to the merits. It did so partly because most of the violations alleged in this case did not specifically concern the conduct of hostilities.

One such issue, however, was the deaths of civilians resulting from shelling that involved the firing of artillery from Russian territory into Ukrainian-controlled territory in which the civilians were located, and which meant that the spatial model of jurisdiction could not be applied (698-699). Here the Court left the door open to applying the personal model of jurisdiction, even though this was precisely the type of activity it had excluded from the Convention’s coverage in GvR:

  1. It will accordingly be necessary to examine whether the Russian Federation had personal jurisdiction in respect of these complaints (see paragraphs 565-571 above). The question whether there was State agent authority and control in respect of acts of shelling in the present case, such as to give rise to the respondent State’s jurisdiction in respect of them, requires a careful examination of whether these incidents fell within the exception identified in Georgia v. Russia (II) by reference to the specific facts of the incidents alleged (see paragraphs 557-558 above). In the circumstances of the present case, this matter is so closely connected to the merits of the case that it cannot be decided at the present stage of the procedure. The Court accordingly decides to join to the merits of the case the objection raised by the respondent Government as to whether the applicant Ukrainian Government’s complaints of administrative practices of shelling in violation of Article 2 of the Convention and Article 1 of Protocol No. 1 to the Convention, together with associated Article 14 complaints, fall within the Article 1 jurisdiction of the respondent State, in so far as these complaints are declared admissible (see paragraphs 831-832, 868-869 and 875 below)

In sum, it will be determined on the merits of this case – and of all the other cases that will deal with the Ukrainian conflict – whether the Court will apply GvR, thus essentially excluding these types of ‘chaotic’ kinetic hostilities from the purview of the Convention, whether it will (wholly unpersuasively) try to distinguish GvR on the facts, or whether it will just overrule it, as it has now more or less done with Bankovic. For my part, I just cannot see how a human rights court, sitting in the Europe that we have today, will be able to say that the obliteration of Ukrainian cities such as Mariupol through the mass use of explosive weapons is not properly a human rights question. But we shall see. All I can say for the moment is that, warts and equivocations and all, this admissibility decision is a good sign that the Court will eventually do the right thing.

This was the good, and as we could see there was a lot of it. In the next part, I will examine what the Court said on the downing of the MH17. Also in the next part – the bad and the ugly.

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Richard Mackenzie-Gray Scott says

January 26, 2023

Hi Marko! I hope all is well :-)

A question on your opinion about the attribution tests created by the ICJ and ILC apparently being "binding law". Wondering where this stance comes from? And if the ILC and ICJ creations are legally binding, because, for example, state practice and opinio juris evidence they are customary, is the ECtHR bound to apply them? I sort of see it the other may around, in that the creations of the ILC and ICJ are relevant to questions of attribution and part of what is consiered to be the law of state responsibility, but not a legally binding end point whereby the ECtHR, or other judicial/quasi-judicial bodies, cannot come up with alternative appraoches.

All good wishes,


Marko Milanovic says

January 26, 2023

Hi Richard,

Thanks for this. I don't think we really disagree, but to clarify - I'm not saying that a particular formulation of a test by the ICJ or the ILC are as such binding law. I'm saying that the general international law of state responsibility is binding law. Now it's perfectly possible to disagree with say the ICJ about the content of that law, as the ICTY did in Tadic. But one can't ignore it. There is, to my knowledge, no state that has said otherwise in terms of its opinio juris etc, and plenty of examples of recent statements (e.g. in the cyber context) in which the authority of the international law of state responsibility is reaffirmed. And if a genuinely subject-specific approach is needed, which departs from the general international law framework, then at the very minimum the relevant court needs to explain what it's doing and why a special approach is needed/justified. Which the ECtHR just doesn't do here. Hope that makes sense!


M.F. Gigliotti says

January 30, 2023

Prof. Milanovic,

thank you for this very clear post.
As you note, the Court held that “as a result of Russia’s military presence in eastern Ukraine and the decisive degree of influence and control it enjoyed over the areas under separatist control in eastern Ukraine as a result of its military, political and economic support to the separatist entities, these areas were, from 11 May 2014 and subsequently, under the effective control of the Russian Federation” (para 695).
It is interesting to consider the implications of this finding if applied to the broader context of the Russo-Ukrainian war.

First, as to the actual start of the conflict, wouldn’t the Court’s finding support the view that Russia’s armed attack started at least in May 2014, rather than February 2022? As noted by the ICJ, “in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack” (Military and Paramilitary Activities, merits judgment, para 195). I say ‘at least in May 2014’ because, of course, we would also need to consider Russia’s annexation of Crimea in March of that year: annexation can be an act of aggression as per the definition of aggression in UNGA Res. 3314 (XXIX), art. 3(a). It is also worth noting that the ECtHR’s Grand Chamber concluded that Russia exercised effective control over Crimea in the period 27 February – 18 March 2014. that is, even before the formal annexation (Ukraine v Russia re. Crimea admissibility decision of December 2020, para 335).

Second, doesn’t the Court’s finding dispose of the self-determination argument sometimes made in relation to the separatist territories? That type of argument is highly problematic for other reasons as well (eg. it assumes the existence of a right to remedial secession beyond the colonial/foreign occupation contexts and that the secessions in Eastern Ukraine reflected the will of the local populations).
Of course, the questions above fall outside the scope of the issues dealt with by the ECtHR in these specific cases. What are your views?
Many thanks
Massimo F. Gigliotti