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

In the first part of this post I talked about the (many) good things about the European Court’s admissibility decision in Ukraine and the Netherlands v Russia. In particular, the conclusion that Russia controlled the separatist areas of Eastern Ukraine from 2014 up to the oral hearing in the case in 2022 and (as the Court will inevitably find) to this day is legally and factually unimpeachable. It will be applied in all future cases dealing with the Ukrainian conflict. In this good category we can also include, albeit with a bit of hesitation, the Court’s approach to the jurisdiction issue regarding the downing of the MH17. Essentially the Court found that the missile that downed the MH17 was fired from Russian-controlled territory and that the plane was hit in the airspace above Russian-controlled territory, so that the spatial model of jurisdiction could apply here as well.

702. It is therefore clear from the ample evidence before the Court that, unlike in the case of the artillery attacks discussed above, both the firing of the Buk-missile and the consequent downing of flight MH17 occurred in territory which was in the hands of separatists. The Court has found that the area in the hands of separatists was, on the date of the incident, under the effective control of the respondent State (see paragraphs 694-695 above). The respondent Government argued that the incident occurred in the airspace controlled by the Ukrainian Government. The Court notes that it is not disputed that Ukrainian air traffic control was responsible for managing the passage of commercial aircraft over the territory captured by the separatists in eastern Ukraine. However, the Court’s conclusion that the territory in question was under the control of the Russian Federation entails the responsibility of that State, under Article 1, to secure Convention rights in exactly the same way as it would in a purely territorial context (see paragraph 561 above). Its spatial jurisdiction therefore covered the territory on the ground as well as the airspace above it.

This is undoubtedly correct. But applying this spatial approach to the downing of the MH17 is not entirely satisfactory and opens up the potential for arbitrary-line drawing, as Sangeeta and I had argued in our amicus brief. Just imagine if the plane was shot down a few kilometers away, while flying over Ukrainian-controlled territory, by a missile fired from the exact same BUK anti-aircraft system in Russian-controlled territory. Are we really going to say that the two scenarios should be treated differently? That in the former situation the people on the plane were deserving of protection for their right to life, but not in the latter? This is why in our view applying the personal model of jurisdiction as authority and control over the victims was far preferable to applying the spatial model, but doing so would have had immediate repercussions that the Court wanted to avoid.

The Court was then confronted with the question how its restrictive ‘context of chaos’ approach in Georgia v. Russia No. 2 applied to the MH17:

703. The only question that remains is whether jurisdiction in respect of this incident is excluded on the basis that it concerned “military operations in the active phase of hostilities”, in the sense of “armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos”, as the respondent Government have alleged (see paragraph 692 above). The Court finds that it cannot be so excluded. While the evidence in the present case shows that the downing of flight MH17 took place in the context of active fighting between the two opposing forces, it would be wholly inaccurate to invoke any “context of chaos” preventing jurisdiction on the basis of effective control over an area from being established.
704. First, the chaos that may exist on the ground as large numbers of advancing forces seek to take control of territory under cover of a barrage of artillery fire does not inevitably exist in the context of the use of surface-to‑air missiles. Such missiles are used to attack specific targets in the air. They may be used in circumstances where there is no armed confrontation on the ground below between enemy military forces seeking to establish control over an area (compare Georgia v. Russia (II), cited above, § 126). There is no evidence in the present case of any such fighting in the areas directly relevant to the missile launch site or the impact site.
705. Second, the Court acknowledges that in many instances the available information may be insufficient to enable the circumstances to be elucidated with the precision required in order to determine whether jurisdiction existed. However, the exceptional work of the JIT demonstrates that it is not impossible to pierce “the fog of war” in relation to particular incidents. Its painstaking investigation has provided a great deal of clarity as to the circumstances in which flight MH17 was downed. Most importantly, as noted above, it has shown beyond any doubt that the missile, which had been supplied and transported by the Russian Federation, was launched from and the aircraft was struck over territory under separatist control. As already explained (see paragraph 701), these areas were, the Court has found, within the jurisdiction of the respondent State at the relevant time.

Again it’s hard to say that this reasoning – which attempts to distinguish GvR rather than overrule it – is genuinely persuasive. If an armed conflict is a ‘conflict of chaos’ it is just completely artificial to draw distinctions between its land and aerial components. Both may be, but need not be, chaotic, whatever one’s understanding of chaos might be. Indeed the most likely hypothesis explaining the downing of the MH17 is precisely that the BUK operators made a mistake of fact, i.e. that they thought they were firing at a Ukrainian military plane and not at a civilian airliner, and this was obviously connected to the fighting on the ground. Moreover that the JIT could clarify the factual circumstances of the downing of the plane – which the Court essentially regarded as authoritatively settling the disputed facts – doesn’t mean the same thing couldn’t be done for particular incidents that happen on land, e.g. artillery shelling. That’s again precisely what commissions of inquiry or international or domestic criminal tribunals set out to do. Both tasks are difficult, but there is no difference in kind between them. So either the ‘context of chaos’ construct should not apply at all and GvR should be overruled, or it should be applied consistently to all hostilities with a nexus to the armed conflict.

That said, from the wholly pragmatic perspective of building a robust majority within the Grand Chamber, I have a lot of understanding for why the Court approached the MH17 question in the way it did. I just think we need to be clear on what the systemic consequences of such an approach are. Again, my main concern is with avoiding arbitrary line-drawing.

The final example of the good parts of the decision that I want to turn to (but there are others that I will not examine, such as the Court’s approach to the six-month rule) relates to how the Court conceptualized the relationship between the ECHR and international humanitarian law. Quite correctly the Court says that human rights and IHL can applied side-by-side. Now it also very openly acknowledges that there is a potential norm conflict between some rules in the Convention and some rules of IHL, in particular as to the justifiability of deprivation of life:

720. In the present case, the Court would observe that there is no apparent conflict between the provisions of the Convention and the relevant provisions of international humanitarian law in respect of the complaints made, with the possible exception of the complaints under the substantive limb of Article 2. In so far as the incidental killing of civilians may not be incompatible with international humanitarian law subject to the principle of proportionality, this may not be entirely consistent with the guarantees afforded by Article 2 of the Convention. It will therefore be for the Court, at the merits stage of the present case, to determine how Article 2 ought to be interpreted as regards allegations of the unintentional killing of civilians in the context of an armed conflict, having regard to the content of international humanitarian law.

We shall see on the merits how the Court will accommodate IHL in applying Article 2 of the Convention. I would just note here that a norm conflict exists not only in IHL-proportionality ‘collateral damage’ scenarios (which the Court has actually already dealt with from a purely human rights perspective in cases such as Finogenov v. Russia), but also with regard to the killing of combatants who pose no immediate threat to the lives of others at the time of their death and/or could feasibly be captured rather than killed. And then there is the whole question of whether a jus ad bellum violation, i.e. the fact that Russia is committing aggression in Ukraine, should matter in the human rights justifiability analysis.

Moreover the MH17 scenario is not one of incidental killing of civilians (although the Court didn’t say that it was, and may have been referring to the cross-border artillery shelling). Rather, it is (likely) one of mistake of fact that goes to distinction, not IHL-proportionality. The BUK crew thought they were targeting a military plane, but the aircraft they took down was in fact a civilian airliner. From an IHL perspective, the proportionality rule is simply irrelevant to the downing of the plane; there was no damage to civilians that was anticipated as incidental to targeting a military objective. Rather, there was deliberate targeting of an objective that turned out to be civilian, and the main IHL issue here is whether all feasible precautions were taken to verify the nature of the target. But again this is all for the merits.

The Bad

This brings us to the bad in this decision, which is thankfully greatly outweighed by the good. The first bit is not substantive, but procedural. Because this is ‘just’ an admissibility decision, it does not state the size of the majority for any specific operative paragraph of the decision, and there are no separate opinions. This is, as I explained before in the context of similar mega-admissibility decisions such as Bankovic and Behrami, a rigidly formalist approach that is just unhelpful and is not strictly required by the text of the Convention. In particular it makes it impossible to tell whether the Court’s reasoning on various points reflects a high degree of consensus on the bench and is thus likely to resonate in future cases, or whether it was on the knife’s edge and provoked a lot of internal controversy.

The second bit that I would regard as bad is how the Court conceptualizes the relationship between its approach to spatial jurisdiction and the attribution rules of general international law. Recall, in particular, how the ICJ in Bosnian Genocide and Nicaragua distinguished between two possible ways of attributing the conduct of a non-state armed group or separatist entity to a state (see more e.g. Talmon). First, if the entity was at a higher level of abstraction completely dependent upon the state, it would become a de facto organ of the state; the only thing distinguishing it from a de jure organ would be the lack of formal organ status under the state’s domestic law. If the complete dependence test was met, all of the acts of the separatist officials would be attributed to the state, even those that were ultra vires, so long as they were done in their official capacity. Second, in the absence of such complete dependence, a specific act by the separatist group could be attributed to the state if the state instructed the entity or effectively controlled it into committing this act. The former case fits within Art. 4 of the ILC Articles on State Responsibility, the latter under Art. 8.

The European Court should properly engage with this attribution framework of general international law, as developed by the ICJ and the ILC. Its jurisprudence so far, in which it applied the spatial model of jurisdiction which is about control over territory, either directly or through a subordinate local entity, has been simply unclear as to whether the Court regarded all of the acts of such a subordinate entity (e.g. the Turkish Republic of Northern Cyprus) to be attributable to the state exercising spatial jurisdiction (e.g. Turkey).

In UNvR, the Court, to its credit, does attempt to clarify this problem. But the way in which does so is unconvincing (564, emphasis added):

As explained above (see paragraph 549), even where allegations concern an area within the respondent State’s ratione loci jurisdiction, that State will ultimately only be held responsible for breaches of the Convention if the impugned acts or omissions are attributable to it. In purely territorial cases, it is uncontroversial that the territorial State is responsible for the policies and actions of local administrations. Their acts and omissions are automatically attributable to the territorial State. It follows that in cases where a State’s ratione loci jurisdiction is established outside its sovereign borders, the acts and omissions of the local administrations in the areas concerned will similarly be automatically attributable to the State which has Article 1 jurisdiction (see paragraph 561 above).

This is just difficult to understand. The reason why the acts of a ‘local administration’ in purely territorial cases are ‘automatically’ attributable to the territorial state is because the officials of such an administration are de jure organs of the state. That is, they enjoy such status under the state’s domestic law. So, for example, the acts of the Nottingham city council or of the Scottish first minister are attributable to the United Kingdom as much as the acts of the British prime minister, but this is because UK law says so, i.e. treats these individuals as state organs. The same goes for (say) federal officials in the United States, who are equally organs of the US as are the governor of New Jersey or the sheriff of some county in Texas.

But to extend the same idea to ‘local administrations’ in foreign territories occupied by the state requires some other principle, because the state’s own law will not treat such administrations as parts of the state’s organic structure. For example, until the recent unlawful annexation of the four Ukrainian regions by Russia, Russian law did not regard the officials of the Donetsk or Luhansk People’s Republics as being Russian state officials. This is precisely the type of scenario that the ICJ’s complete dependence test was designed to address, to close a loophole in which the state could treat an entity as an organ in fact but modify its domestic law to evade responsibility. But it just goes entirely unmentioned by the European Court.

Later in the decision, after concluding that Russia controlled the relevant territories of Eastern Ukraine, the Court says this:

697. As explained above (see paragraph 564), the finding that the Russian Federation had effective control over the relevant parts of Donbass controlled by the subordinate separatist administrations or separatist armed groups means that the acts and omissions of the separatists are attributable to the Russian Federation in the same way as the acts and omissions of any subordinate administration engage the responsibility of the territorial State. It will be for the respondent Government to demonstrate at the subsequent merits phase of these proceedings, should they wish to do so, that the separatists did not, in fact, control particular pockets of land or commit the particular acts which form the basis of the allegations by the applicant States; or that the specific acts of particular separatists cannot be attributed to them.

The Court here treats the Donbass separatists essentially as de facto organs of Russia. The good thing about this is that the Court separates out jurisdiction from attribution at least notionally. But the bad thing about this is that there is simply a leap here from control over territory to the control over non-state entities operating in that territory. Would we really say, for example, that the conduct of the Palestinian Authority is automatically attributable to Israel simply on account of the fact that Israel is the occupying power in the territory in which the PA operates?

There is again no reference here to the work of the ICJ and the ILC, let alone any application of the principles they set out. One way of reading this is that the Court is setting out ECHR-specific rules of attribution (for extensive discussions, see here and here). Maybe that’s justified, maybe it’s not. At the very least, however, the Court should have explained what exactly it was doing, how it relates to the general international law rules of attribution as authoritatively interpreted by the ICJ and the ICL, and why it thought it necessary to depart from any general rules.

It is particularly disappointing to observe how the Court has approached this type of attribution when, by contrast, the Chamber in Carter directly engaged with the work of the ILC and applied it to the facts of the case. This is all the more disappointing because, as I read the facts and the evidence that the Court had so comprehensively set out and analyzed when establishing Russia’s control over the separatist territories, the Court had more than enough information at its disposal to support a finding of de facto organ status under the ICJ’s complete dependence test, as developed and applied in Nicaragua and Bosnian Genocide. This is especially the case when the facts are evaluated in the context of Russia’s subsequent purported annexation of these entities and the incorporation of their officials into its own organic structure de jure, the speed and ease of which confirms the nature of their pre-existing de facto relationship. Again I just don’t understand why the Court thought that deviating from the approach of the ICJ and the ILC was necessary, or even whether it was aware that this is what was being done.

Another problem with the Court’s approach is that the rigour of the factual analysis in this case is very much exceptional compared to some its predecessors. Put differently, on the evidential question this case is very much an outlier, if positively so. I am genuinely unsure, for example, whether all of the conduct of the separatist authorities in Transnistria (see Ilascu, Catan) should be regarded as automatically attributable to the Russian Federation. The major virtue of the Court’s approach, however, is in greatly simplifying attribution issues on the merits. It would be very difficult for Russia to demonstrate (even if it wanted to participate in further proceedings) that the conduct of DNR/LNR forces should not be attributed to it. Or, with regard to the downing of the MH17, it becomes practically irrelevant whether the BUK launcher was operated by a Russian crew or by the separatists – the shooting down of the plane would be attributable to Russia either way, triggering the negative aspect of Art. 2 ECHR.

The Ugly

Now we come to the single point in this decision that is in my view just flat-out wrong as a matter of both law and broader principle. This is the implication that the spatial conception of jurisdiction as control over territory can only be applied in the Convention’s ‘legal space,’ i.e. when one state party controls the territory of another state party (e.g. Russia and Ukraine, Turkey and Cyprus etc), but not when a state party controls the territory of a non-state party (e.g. the UK in Iraq or Afghanistan, France in Mali, etc).

This position, which can so manifestly be criticized for double-standards, i.e. that ECHR human rights are the human rights of Europeans and don’t apply when Europeans do bad things to other people, was first implied (but no more than that) in the Bankovic decision, at para. 80:

In short, the Convention is a multi-lateral treaty operating, subject to Article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.

On a very strict construction of this paragraph it makes some sense. It is clear that any rationale for avoiding a vacuum of protection only applies if the protection existed in the first place. That’s just logical, but it’s also not the message that the Court was sending here, which was about treating Europe and not-Europe differently. And even as a matter of logic relying on this ‘legal space’ idea to restrict the extraterritorial application of the Convention simply assumes that the avoidance of a vacuum is the only reason supporting the extraterritorial application of human rights treaties. There are other such reasons, say the idea of the universality of human rights rooted in universal human dignity.

This paragraph was then taken up by the UK House of Lords in Al-Skeini, in which their Lordships ruled that the spatial model of jurisdiction cannot be applied outside the territories of the states parties to the Convention (which is, remember, not what Bankovic actually held). In other words, even if the UK was the occupying power in Basra or Southern Iraq more generally, the ECHR could not apply there by virtue of territorial control alone.

When Al-Skeini came to the European Court, the Grand Chamber seemed to kill off the idea that limiting spatial jurisdiction to the ‘legal space’ of the Convention was right:

142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “legal space of the Convention” (see Cyprus v. Turkey, cited above, § 78, and Banković and Others, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States. The Court has not in its case-law applied any such restriction (see, among other examples, Öcalan; Issa and Others; Al‑Saadoon and Mufdhi; and Medvedyev and Others, all cited above).

But now this idea has risen from the dead in the UNvR decision, like so:

562. The Court has never said that there can only be effective control over an area outside a State’s sovereign borders if the area in question falls within the territory of one of the High Contracting Parties (see, in particular, Issa and Others v. Turkey, no. 31821/96, §§ 74-75, 16 November 2004). However, this would appear to be the rationale behind its conclusion that the controlling State should in principle be held accountable for all breaches of negative and positive obligations under the Convention within the controlled territory (see paragraph 561 above). After all, as the Court has explained, to hold otherwise would be to deprive the population of that territory of the rights and freedoms previously enjoyed and to which they are entitled, and would result in a vacuum of protection within the legal space of the Convention (see Cyprus v. Turkey, cited above, § 78; and Al‑Skeini and Others, cited above, § 142). It has moreover emphasised that the Convention is a constitutional instrument of European public order: it does not govern the actions of States which are not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Al-Skeini and Others, cited above, § 141).
563. The Court has accordingly concluded that extraterritorial ratione loci jurisdiction existed in a number of such cases concerning territory inside the Convention legal space (see, for example, Cyprus v. Turkey, Ilaşcu and Others, Catan and Others, Georgia v. Russia (II) and Ukraine v. Russia (reCrimea), all cited above; and Chiragov and Others v. Armenia [GC], no. 13216/05, ECHR 2015). To date, the Court has never found there to be extraterritorial jurisdiction on account of ratione loci jurisdiction over an area outside the sovereign territory of the Council of Europe member States.

The Court returns this point a bit later, after discussing the personal notion of jurisdiction:

572. Unlike jurisdiction based on effective control over an area, the Court has on numerous occasions found personal jurisdiction under Article 1 of the Convention to exist outside the Convention legal space (see, among other examples, Öcalan, Medvedyev and Others, Al-Skeini and Others and Jaloud, all cited above).

What is so problematic about this? First there is the ambiguity in what the Court is saying – the Court seems to simply be describing the fact that the spatial model has so far been applied to the territories of member states, while the personal model of jurisdiction has also been applied outside them. But why even bother with this description, if there is no intent to do more? And the intent behind it – the implication – is that this is how things should be. There is, in other words, a huge jump here from the ‘is’ to the ‘ought’, from the descriptive to the normative, that is generally unreasoned but for the reference to the avoidance of a vacuum of protection point (which, again, is logical but trivial).

There is no case in which the spatial model was applied to the territory of a non-state party simply because no case in which that type of approach would have been the most appropriate was actually litigated. Nobody, for example, brought a case against France re Mali. The Afghan cases dealt primarily with procedural duties of investigation, and the Court adopted a bespoke ‘special circumstances’ approach to them. The closest case is Al-Skeini, but there the big issue in the background – one that the European Court very much wanted to avoid – was that the UK’s control over the parts of Iraq which it had occupied was very tenuous because of the raging insurgency in those areas. This was in fact the subsidiary holding of the House of Lords, that the UK did not actually have control over Iraqi territory. The European Court just side-stepped this entirely by using the personal model to cover all six applicants in Al-Skeini.

It is terribly dangerous to derive from this jurisprudence a principle that essentially says that ECHR states parties have higher obligations in Europe than elsewhere. Would we really be content with a position that the spatial model of jurisdiction could not apply had Russia invaded Belarus instead of Ukraine, wrecking that country as it has Ukraine, simply because Belarus itself is not an ECHR party? Would we really be content with a position under which the downing of the MH17 would not be covered if the plane was struck from Russian territory while it was flying over Belarus? I need not belabour this point further.

To conclude, these paragraphs in UNvR should not be relied upon in future cases. The Court may be hinting that this is an avenue worth pursuing, but it has not held so. Its remarks are not just ambiguous but are obiter and do not concern the facts of this specific case, because Ukraine obviously is an ECHR member state. The is-ought coyness of the Court on this point does not do it credit. Moreover as I have explained we don’t know the majority within the Court on this point, nor what bargains needed to be struck among the judges to get a majority on others. A cynic might read this (and surely I am not one) as a judicial signal to Western states that they should not worry too much about the implications of this decision and other litigation concerning the war in Ukraine for their own overseas military adventures. We should not go there. So let’s not go there, and let’s not allow the ugly in this decision to overshadow the good (of which there is so much).