The European Court’s Merits Judgment in Ukraine and the Netherlands v. Russia: As Good as It Gets (Almost)

In a landmark ruling, the Grand Chamber of the European Court of Human Rights yesterday delivered its much-anticipated merits judgment in Ukraine and the Netherlands v. Russia (nos. 8019/16, 43800/14, 28525/20 and 11055/22). The judgment is here; the Court’s press release summarizing it is here. For more background, see my post from last week and the other posts cited there. I won’t be providing any background in this post, or even attempt to summarize this massive judgment of more than 1600 paragraphs (the press release does that well).

The bottom line of the judgment is as follows:

1. The Court took a sensible, expansive approach to Article 1 jurisdiction and the Convention’s extraterritorial application in this case. In particular, it covered all of the incidents concerning the use of kinetic force/conduct of hostilities in 2014 and 2022 that were at issue in the case. This is a very good thing.
2. It did so while refusing to follow the Georgia v. Russia No. 2 ‘context of chaos’ approach, without expressly overruling that judgment (and while barely mentioning it). Moreover, it did so without saying that Ukraine or Europe were somehow unique. But – but – the approach it took was framed very cleverly so that some states, like France and the UK, could make creative arguments in the future that the Court’s conclusions should, indeed, be confined to the facts of Ukraine, or something closely approaching them.
3. The Court also took a very sensible approach to the interaction between the Convention and international humanitarian law. Quite rightly, and contrary to the arguments of some intervening states, it did not rely on any notion of lex specialis.
4. The Court expressly applied the de facto organ complete dependence and control test, as articulated by the ICJ in Nicaragua and Bosnian Genocide, to attribute all of the conduct of pro-Russian separatists to Russia, from 2014 onwards. In doing so, it also expressly relied on Article 4 of the ILC Articles on State Responsibility. It thereby put to rest literally decades of conceptual confusion between jurisdiction and attribution, and clearly affirmed that the rules of attribution in general international law apply in this context too. And while in the two ICJ cased the attribution claim was not successful on the evidence before it, here it very much was.
5. On virtually all major issues of fact, the Court took the reports of reputable bodies, such as the UN Commission of Inquiry or the OHCHR, as well as other supporting material, said that they demonstrated a pattern of violations by Russia, and that the burden was on Russia to show that these violations did not occur (or that its acts were justified). Russia’s failure to provide any such evidence (or its lies when it did provide some evidence), or more generally Russia’s failure to cooperate with the Court, then enabled adverse inferences and confirmed the reliability of facts established by other bodies. Note that this drawing of inferences is especially appropriate in a regime like the ECHR one, which expressly lays down a legal duty of cooperation with the Court (the same might not apply elsewhere).
6. The Court found that Russia shot down the MH17, likely by mistake, but that this mistake was unjustified from an IHL and a human rights standpoint, resulting in different types of violations of the right to life. (It also concluded that Russia failed to take positive measures that could have prevented this from happening, and that it deliberately obstructed the investigation.)
7. The Court found a host of violations of IHL and the Convention in various scenarios, including the deliberate or indiscriminate targeting of civilians, killings or mistreatment of people in detention, forcible displacement of civilians, and abductions of children. By and large this joint application of IHL and the Convention is done quite well. This is enabled by the fact that the violations alleged (and found to exist) either do not raise the ‘hard’ cases where IHL and human rights might conflict, or, if they do, Russia’s non-appearance and failure to make justificatory arguments made the Court’s conclusions easy. (Ironically, towards the end of the judgment the Court laments Russia non-appearance and says that it made its job harder – but in fact the very opposite is true. This case would have been much more difficult to decide, certainly on conduct of hostilities issues, if Russia was attempting to rebut Ukraine’s argument incident by incident.)
8. The Court refused to get into violations of the jus ad bellum, while dealing with them as part of the wider context and while leaving open the possibility that ad bellum violations may affect a human rights analysis.
9. On all but one (relatively minor) point, the Court was unanimous. There are also no separate opinions, something virtually unheard of in a merits judgment of the Grand Chamber. This was clearly a concerted effort by the Court to present a united front.

On the whole, this is an excellent judgment. Many uncertainties still remain, but this is likely the best possible outcome that was realistically obtainable. A cynical reader might accuse me in that regard that I am happy only because the Court followed most of the arguments presented to it in the amicus brief I co-authored with Sangeeta Shah – ok, fine, guilty as charged. Happy also to be dissuaded. But, from what I can tell, the Court acquitted itself very well indeed.

The judgment is so rich and detailed that I cannot possibly do it justice in a single post, so I won’t even try. In the remainder of the post I will simply quote some of the most important paragraphs from the judgment, looking at a selection of issues, while providing a bit of commentary. (There are a lot of quotes below, and the post is therefore very long).

Overall alignment between the ECHR and (the rest of) international law

A preliminary note – I was struck after reading judgment how it was generally well grounded in international law, and how there is no resistance to international law arguments (e.g. of the ‘ECHR is special’ variety) that have been evident in some previous cases. The whole judgment places the Convention as part of a wider system, and that is a good thing. We get this sense even from some purely terminological points (e.g. the Court’s discussion of how it would use the terms invasion, occupation and annexation, with repeated references to the 2024 ICJ advisory opinion on the occupied Palestinian territories (paras. 147-9). This is not a ‘fragmentationist’ Court.

It is also striking how the Court from the outset grounds its analysis explicitly in the values safeguarded by the Convention and the overarching international system:

177. As noted above, the Court has previously been required to examine applications arising out of situations of conflict in Europe (see paragraph 167 above). However, the events in Ukraine are unprecedented in the history of the Council of Europe. The nature and scale of the violence as well as the ominous statements concerning Ukraine’s statehood, its independence and its very right to exist represent a threat to the peaceful co-existence that Europe has long taken for granted. As already explained, this dangerous rhetoric has also on occasion been extended to encompass other Council of Europe member States, including Poland, Moldova and the Baltic countries. These actions seek to undermine the very fabric of the democracy on which the Council of Europe and its member States are founded by their destruction of individual freedoms, their suppression of political liberties and their blatant disregard for the rule of law. In none of the conflicts previously before the Court has there been such near universal condemnation of the “flagrant” disregard by the respondent State for the foundations of the international legal order established after the Second World War and such clear measures taken by the Council of Europe to sanction the respondent State’s disrespect for the fundamental values of the Council of Europe: peace, as already underlined, but no less importantly human life, human dignity and the individual rights guaranteed by the Convention.
178. The Court’s task under Article 19 is limited to ensuring the observance by the High Contracting Parties of the engagements undertaken in the Convention and its Protocols. The Court is not called upon to decide on the legality of Russia’s invasion and occupation of Ukraine in the abstract or the individual criminal responsibility of those implicated in the events, but rather to decide on the conformity of the actions of the respondent State with the fundamental guarantees contained in the Convention and its Protocols.
179. Pursuant to the 1969 Vienna Convention on the Law of Treaties (“the Vienna Convention”), the Court endeavours, in each case to come before it, to interpret the Convention in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. The underlying objectives of the Convention – namely to realise the aims and ideals of the Council of Europe by promoting peace based on justice and international cooperation – are of critical importance for the Court today in its interpretation of the Convention’s provisions.

Article 1 jurisdiction

This was the single most important issue of legal principle in this case. And here the Court expressly justifies the approach that it is about to take in teleological terms, tying its analysis to the paragraphs quoted above:

348. The Court is ever mindful of its responsibility, pursuant to Article 19 of the Convention, to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and its Protocols. The Convention is not merely a declaration of rights. It establishes a European system for the collective enforcement of the rights it contains with the aim, as attested to by both the Preamble to the Convention and the travaux préparatoires, of securing justice and peace on a continent twice ravaged by war in the twentieth century. It is clear from the evidence available that the military attacks by Russia on Ukrainian territory resulted in some of the most egregious and extensive alleged human rights violations arising in this armed conflict. In its preliminary observations, the Court has drawn attention to the threat posed to peaceful co-existence within Europe by the acts and intentions of the Russian Federation (see paragraph 177 above). It emphasised the critical importance of the underlying objectives of the Convention to the Court’s interpretation of its provisions (see paragraph 179 above).
349. The full-scale invasion of Ukraine, a High Contracting Party, by Russia, another High Contracting Party, which commenced on 24 February 2022 therefore marked a clear watershed moment in the history of the Council of Europe and the Convention. The Parliamentary Assembly and the Committee of Ministers reacted decisively to these events, swiftly excluding the Russian Federation from the Council of Europe as a consequence of its serious violation of its obligations under Article 3 of the Statute of the Council of Europe through its aggression against Ukraine (see paragraphs 80‑89 above). In the face of such an unprecedented and flagrant attack on the fundamental values of the Council of Europe and the object and purpose of the Convention, the Court must reflect anew on the exercise of its own jurisdiction under Article 32 to interpret and apply the Convention and its Protocols with a view to contributing to the preservation of peace and security in Europe through the effective protection and enforcement of the human rights of those whom the Convention is intended to protect. It is significant in this respect that the majority of High Contracting Parties have referred expressly, in their submissions as third parties in this case, to their support for accountability for all violations of international law by the Russian Federation and for efforts to hold the Russian Federation accountable under applicable international legal frameworks (see paragraph 157 above). They also acknowledged that the Court’s careful examination of the facts surrounding the downing of flight MH17 in order to determine whether extraterritorial jurisdiction arose (see Ukraine and the Netherlands v. Russia (dec.), cited above, §§ 701-06) reflected the application of the principles in its case-law to the specific facts of that incident (see paragraph 233 above).

Again, this is not a value-neutral Court – how could it be? It is also particularly striking how the Court deftly uses the submissions of the intervening states in this case (26 of them) to legitimize the broad approach to jurisdiction that it will adopt – an approach that some states resisted. It’s almost as if the Court is saying – you want to backlash against this? When you made all the submissions you did, when you passed all the resolutions you did?

The Court then discusses the purpose of Russia’s armed intervention, direct and indirect, in Ukraine – obtaining control of Ukrainian territory (paras. 356-359) – and arrives at the most important paragraphs of the judgment:

360. The start of the Russian invasion of Ukraine on 24 February 2022 represented the continuation and escalation of the strategy pursued by Russia since 2014. The lengthy preparation phase, involving the prior deployment of troops and military material, and the scale of the invasion are clearly indicative of the degree of planning on the part of the Russian Federation. The move from covert to overt operations brought transparency and clarity as to the views and intentions of the Russian leadership and, in consequence, the underlying, long-term objectives of the Russian operations in Ukraine. These objectives were no less than the destruction of Ukraine as an independent sovereign State through the annexation of Ukrainian territory and the subjugation of the rest of Ukraine to Russian influence and control (see paragraph 174 above). These objectives, as already explained above, are wholly at odds with the Council of Europe peace project based on democracy, human rights and the rule of law (see paragraph 177 above).
361. The reality of the extensive, strategically planned military attacks perpetrated by Russian forces across Ukrainian sovereign territory between 2014 and 2022, carried out with the deliberate intention and indisputable effect of assuming authority and control, falling short of effective control, over areas, infrastructure and people in Ukraine, is wholly at odds with any notion of chaos (compare Georgia v. Russia (II), cited above, §§ 137‑38, summarised at paragraph 355 above). The Court concludes that in planning and in executing, directly or via the armed forces of the “DPR” and “LPR”, its military attacks across Ukrainian territory with a view to acquiring and retaining effective control over areas of sovereign Ukrainian territory and thereby removing those areas from the effective control of Ukraine, the Russian Federation assumed a degree of responsibility over those individuals affected by its attacks (see paragraph 354 above). In these circumstances, the Russian Federation exercised, through its de jure and de facto armed forces, authority and control over individuals affected by its military attacks up until 16 September 2022. Such individuals therefore fell within the jurisdiction of the Russian Federation for the purposes of Article 1 of the Convention. It follows that the Russian Federation was under an obligation pursuant to Article 1 to secure to individuals affected by its military attacks the Convention rights and freedoms relevant to their situation (see, mutatis mutandis, Al-Skeini and Others, cited above, § 137).

Let’s deconstruct this carefully:

1. The Court finds not only that Russia was acting with a bad purpose, but with the worst of purposes – one wholly at odds with the European peace project. (Does that mean this is a special case – the Court doesn’t say so, but that is how this could be read?)
2. ‘[C]arried out with the deliberate intention and indisputable effect of assuming authority and control, falling short of effective control, over areas, infrastructure and people in Ukraine’ – now this is a bit of a mess. A deliberate intention (isn’t intention always deliberate?). An intention test, or an effect test, or both? The mixing up of authority and control (over persons) with effective control (over territory)?
3. ‘is wholly at odds with any notion of chaos (compare Georgia v. Russia (II), cited above, §§ 137‑38’ – this is the sum total of attention given to the notion of a context of chaos in GvR. That’s it. GvR is compared, not overruled (the Court loves this use of the word compare – compare Al-Skeini, para. 137, which so compared Bankovic.) There is no real explanation whether the shift in approach compared to GvR is being done because GvR was wrongly decided (which it was), or because it was dealing with a war lesser in magnitude, not an all-out-assault on the European peace project as with Ukraine.
4. Russia planned to take Ukraine’s territory, and therefore assumed responsibility for those within those territories even if it did not obtain control of them – is that right? Does this approach therefore make sense only in wars of territorial conquest? What about pure aerial bombardments, as in Bankovic, where territorial conquest is not contemplated?
5. Military attacks are forms of authority and control over individuals affected by them, and are thus jurisdiction in the personal sense of that term. (That’s really all that needed to be said). 
6. ‘In these circumstances’ – is it ONLY in these circumstances? The Court doesn’t say so, but that is how this could be read.
7. The Court (rightly) says nothing about attacks having to be ‘proximate’, a wholly arbitrary criterion it invented in GvR, which had attracted a lot of attention in submissions before the Court and is now just fleetingly mentioned in para. 353 of the judgment and not applied at all.

What are we to make of this? As a matter of principle, it is only point (5) that matters – if a state kills someone, they’ve exercised authority and control over them. That’s it. Should it really matter what kind of context etc this is taking place in? Why is anything else needed? The Court here is really justifying itself – to states parties, not necessarily to other constituencies – why the restrictive GvR approach is being abandoned.

But all this fudging – purposes, intents, values – is I think also meant to send a much more problematic signal. Maybe we won’t treat every case like this, if say it is a limited overseas military intervention, a few airstrikes here or there. This paragraph is where, in my view, the Court attempts to do the right thing, covering all conduct of hostilities incidents in the case, while simultaneously trying to appease the British and the French (among others), signaling to them that lesser conflicts might not get the same kind of scrutiny. Without saying any of this expressly, carefully cloaking itself in ambiguity.

So, to sum up – this is the right outcome. The Court passed what I called the Mariupol test. It would have been absurd to hold that shelling a city into oblivion is not a human rights problem. But it possibly leaves the door open to double standards in some future cases, which are less catastrophic than the war in Ukraine. Possibly: the language the Court uses is chosen – with deliberate intention – to avoid, for example, relying on blatant double standards, such as the argument that European wars are different from those overseas, which would have immediately opened it up to criticism.

Attribution

Now we come to something I really like – the Court’s analysis of the attribution of the conduct of the separatists to Russia:

362. Acts and omissions of the Russian military are acts of Russian State organs and are plainly attributable to the respondent State.
363. In its admissibility decision, the Court has already explained that the acts and omissions of separatists in the areas under the effective control of the Russian Federation were attributable to that State (Ukraine and the Netherlands v. Russia (dec.), cited above, § 697). In this respect, the Court underlines that, having regard to the wealth of evidence before it, it is satisfied that all the armed hostilities undertaken by the separatists reflected an overall strategy and tactics wholly devised by the Russian Federation. There can, moreover, be no doubt that direct and critical combat support was provided by the respondent State from the very earliest stages of the armed conflict (see paragraphs 356 and 358 above). The reality of the relationship between the separatists on the one hand and the respondent State on the other was such that, whatever their legal status, the separatists were completely dependent on military, political and economic support from the respondent State to carry out their activities and were, ultimately, a mere instrument of that State. It is for these reasons that the Court was persuaded that, from 11 May 2014, the relationship of the separatists to the Russian Federation was so much one of dependence on the one side and control on the other that it would be right to equate the separatists in the “DPR” and the “LPR” with de facto organs of the Russian Federation, within the meaning of Article 4 ARSIWA. Any other solution would allow States to avoid their Convention obligations by choosing to act through entities whose supposed independence is purely fictitious.
364. The applicant Ukrainian Government have alleged that the overall command of Russia’s “hybrid forces” in eastern Ukraine was under the direct control of the General Staff of the Russian armed forces (Ukraine and the Netherlands v. Russia (dec.), cited above, § 586). The Court observes that once the armed separatists were formally integrated into the military hierarchy of the Russian armed forces, they had the legal status of State organs and were, accordingly, from that date de jure organs of the respondent State within the meaning of Article 4 ARSIWA. In view of its finding that prior to that date the separatists were de facto organs of the Russian Federation, it is not necessary for the Court to make any finding as to the date on which this transition occurred.

This is all exactly right (and also exactly what we argued in the Nottingham amicus brief). The Court correctly articulates the de facto organ test and its basic purpose, and finds (for the first time in a case of this type in international jurisprudence) that its requirements were met on the facts. (Which they definitely were). The Court also rightly notes that the subsequent Russian annexation simply confirmed the existence of an organic relationship. And finally, at para. 366, the Court concludes that ‘All acts and omissions of the Russian armed forces and the armed separatists of the “DPR” and the “LPR” are attributable to the Russian Federation.’ That means, for example, that it doesn’t matter who gave the order to shoot down the MH17, or who pressed the button that fired the missile, a separatist or a Russian soldier or official –  either way Russia did it.

The relationship between the Convention and IHL; derogation

The Court also adopted the right approach in articulating how the Convention and IHL should interact:

428. The ICJ has clarified that the protection offered by human rights conventions does not cease in case of armed conflict. It has explained that as regards the relationship between international humanitarian law and human rights law, there are three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. It has in the past referred to international humanitarian law as being lex specialis in this context (B101 and 103-08). However, in its more recent 2005 judgment in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), it did not invoke the concept of lex specialis and instead explained that in its previous case-law it had concluded that “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration” (B109-12). The Court, for its part, has not described the relationship between the Convention and international humanitarian law as one of lex generalis and lex specialis. In particular, the Court’s case-law demonstrates that the specific provisions of international humanitarian law do not displace Convention guarantees in situations of armed conflict. Rather, they are used as an interpretative tool when determining the scope of human rights guarantees in such situations. In the context of the Convention, there is no circumstance in which international humanitarian law will apply to the complete exclusion of the Convention’s human rights guarantees. This follows logically from the Court’s consistent position that even in situations of international armed conflict, the safeguards under the Convention continue to apply (see, recently, Ukraine and the Netherlands v. Russia (dec.), cited above, § 718).
429. As it has already underlined, in the present case the Court is asked to interpret and apply the Convention against the backdrop of international armed conflict. The Court will take into account relevant provisions of international humanitarian law where relevant when determining the scope of human rights guarantees under the Convention Articles invoked by the applicant Governments. This is not only rendered necessary by its general interpretative obligation as described above, or by the arguments from the applicant, respondent and third-party Governments concerning the relevance of international humanitarian law in this case (see paragraphs 369‑400 above). It also follows as a consequence of the special character of the Convention as an instrument of European public order for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, to “ensure the observance of the engagements undertaken by the High Contracting Parties” (see paragraphs 159 and 161 above). In these circumstances, the Court cannot avoid interpreting international humanitarian law and, where necessary for it to carry out its role, will assess compliance with international humanitarian law provisions (see, notably, Hassan, cited above, § 109-10. See also Kononov v. Latvia [GC], no. 36376/04, §§ 200‑27, ECHR 2010, and, similarly, the Court’s analysis of State immunity rules in Jones and Others v. the United Kingdom, nos. 34356/06 and 40528/06, §§ 201-15, ECHR 2014).
430. The Court observes that its duty is to interpret the Convention in harmony with international law “so far as possible” (see paragraph 427 above). There may be situations where a harmonious interpretation of provisions of the Convention with relevant provisions of international humanitarian law is not possible in the absence of a derogation under Article 15 of the Convention (see paragraph 425 above), since the provisions are in conflict with one another. In its admissibility decision, the Court acknowledged that this might be the case as regards the Article 2 complaints advanced by the applicant Governments (Ukraine and the Netherlands v. Russia (dec.), cited above, § 720). Whether such conflict does, in fact, arise on the facts of the present case will be addressed in the context of the Court’s examination of the respective Article 2 complaints of the applicant Governments, below.

To summarize, the Court has held that:

• It has the jurisdiction to apply IHL when interpreting and applying the rules in the Convention.
• It expressly refused to conceptualize this relationship as one of special to general law (lex specialis), even though quite a few states invited it to do so. Rather, it looks at that relationship as a purely interpretative one, not a hierarchical one.
• It acknowledges the possibility that the rules in the Convention and IHL may, in rare cases, conflict – but no such scenario actually arose in this case.
• It leaves for some future case the problem of what the derogation clause in Article 15 (and its reference to lawful acts of war) does to mediate the relationship between the two bodies of law. Again, this is because no ‘hard’ scenario arose here, but the Court clearly doesn’t think that Article 15 is a dead letter. Governments should take note – exploring the possibility of derogating in conflict by express reference to IHL has just become a bit more pressing.

Aggression and the jus ad bellum

While the Court takes note of Russia’s aggression throughout the judgment as part of the overall context, it (sensibly) refuses to say that it has the jurisdiction to establish violations of the Charter because doing would directly affect the human rights analysis (even though this is a perfectly plausible position):

431. Neither applicant Government invited the Court to take account of jus ad bellum when determining the compliance of the respondent State with substantive Convention rights. In the absence of submissions from them on this question, the Court does not consider it appropriate to address it.

The downing of the MH17 and mistakes of fact

A hugely important issue in contemporary IHL is how mistakes as to distinction – errors in identifying the target, which result in the attack being directed against a civilian or a civilian object – should legally be treated. We discussed this issue in the Nottingham brief, because the downing of the MH17 was caused (almost certainly) by such a mistake – the operator thought they were firing at a military aircraft, but in fact they shot at a civilian airliner (see also here). The Court flags this issue, but finds that it does not have to resolve it fully, since, on the facts, the mistake made here was not reasonable:

458. The question arises whether a mistake of fact in targeting which results in the targeting of civilians or civilian objects will always violate the principle of distinction, or whether an honest and reasonable mistake would negate the element of intent necessary for such a breach to occur (see paragraph 424 above [this is a reference to the Nottingham brief]). To the extent that ambiguity exists in this respect, it would only be necessary for the Court to attempt to resolve it if it could be shown that an honest and reasonable mistake of targeting had occurred in the present context. An important consideration in this respect is whether the persons in charge of the targeting process did everything feasible to verify the identity of the target and took all feasible precautions to minimise the risk of loss of life.
459. The applicant Dutch Government have explained that, although a Buk-TELAR is equipped with a radar and can therefore identify potential targets, its radar is only capable of positively identifying one of its own military aircraft as a “friend”. Any aircraft not identified as a “friend” is identified as a “foe”, regardless of whether the aircraft is a military or civilian aircraft (see paragraph 436 above). The evidence of the applicant Dutch Government as to the inability of a Buk-TELAR acting alone to distinguish between military and civilian aircraft was uncontested by the respondent Government at the admissibility stage and remains uncontested. The Court accordingly accepts the evidence before it in this respect. In consequence, the deployment of a Buk-TELAR in isolation, without the remaining units of the Buk missile system and in particular without a Buk-TAR, and in the absence of other measures capable of accurately identifying military targets, would constitute a violation of the principle of distinction. In circumstances where a Buk-TELAR is being deployed alone, the principle of precautions would also require the taking of further measures to enable the accurate identification of the potential target (see paragraph 457 above).
460. It is accordingly pertinent to examine what other measures were taken to ensure the accurate identification of target objects. As already noted, no evidence has been provided by the Russian Federation as to any preparatory steps taken prior to the launching of the missile to confirm the nature of the intended target. Requests by the JIT and the examining magistrate in the proceedings in The Hague for information as to the crew of the Buk‑TELAR and to interview the commander of the 53rd AAMB, which would have enabled the taking of any such steps to be explored and elucidated, were refused by the Russian authorities (A1849 and 1852). The reason given for the refusals was that there was insufficient evidence of Russian involvement (A1967; and B450, 465, 467 and 469). This reason cannot be considered plausible in the face of the extensive evidence collected by the JIT. The Court infers from the evidence and from the absence of any information from the Russian Federation that no other measures were taken to ensure the accurate verification of the target of the Buk-TELAR.
461. In these circumstances, the launching of the missile from the Buk‑TELAR in eastern Ukraine was in breach of the international humanitarian law principles of distinction and precautions. Pursuant to Article 52 AP I (B140), the attack was accordingly an indiscriminate attack prohibited under international humanitarian law (see also B102). In view of this conclusion, the downing of flight MH17 cannot constitute a lawful act of war and there is accordingly, in the context of the present complaint, no potential conflict arising from the absence in Article 2 § 2 itself of any accommodation of deaths which are compatible with international humanitarian law.

Thus, the Court finds (relying on an inference) that Russian forces took no measures to ensure the verification of the target. The mistake, such as it is, cannot therefore be justified. Note the reference to a ‘lawful act of war’ – the language of Article 15(2) of the Convention, with respect to derogations from the right to life – which is the only such reference in the judgment (at least in the Court’s own analysis). This makes me wonder whether earlier drafts of the judgment engaged more fully with the derogation clause, but this is pure speculation. Russia was thereby found responsible for violation the negative duty to respect the right to life of the hundreds of people on board the airliner. It was also found reasonable for failing to take positive measures that could have reduced the overall risk to life, such as warnings (para. 465).

The conclusion the Court reached here seems straightforward, but the importance of these paragraphs should not be underestimated. Imagine if this was a case such as Bankovic, and if the issue being litigated was (say) the mistaken bombing of the Chinese embassy in Belgrade in 1999. If the state concerned actually put forward arguments and evidence as to why its mistake was honest and reasonable, the Court would have had to engage in a very intense fact-finding and evaluative exercise that it could avoid here, when Russia simply flat out denied that it shot down the aircraft.

Lying to obstruct the investigation

The Court then finds Russia responsible for failing to effectively investigate the downing of the MH17, thus violating the positive procedural duty under Article 2 ECHR. This violation is due to both the failure of Russia’s own investigation (such as it was) and due to its failure to cooperate with the multinational JIT (paras. 488-500).

I was particularly struck with how the Court repeatedly finds (if in slightly more polite, yet still emphatic language) that Russia was constantly lying about the downing of the MH17. Thus, it says that Russian ‘inquiries regularly resulted in the disclosure of information which was later shown to be at best inaccurate and at worst a complete fabrication’; that ‘[f]rom the earliest days after the downing of the flight, the respondent Government circulated misinformation as to the cause and circumstances of the crash; that Russia was ‘deliberately setting false trails, wasting the time and resources of the JIT’. The Court also concludes that Russia failed to provide any remedy to the victims, and again uses language of bad faith:

512. There has been no other fact-finding forum that has allowed these critical details to be explored and elucidated. Indeed, given that the information required is in the sole hands of the authorities of the Russian Federation, that State’s continued blanket denial of involvement in the downing of flight MH17 and refusal to provide information for scrutiny makes it impossible for the full truth about this incident to be established by any independent fact-finding body. As a consequence thereof, any suggestion that the elucidation of the facts might be achieved and the liability of Russian State officials established in civil proceedings in Russia can only be described as fanciful.

Language this strong is rare in a Strasbourg judgment, but is perfectly appropriate under the circumstances (for more on state lies as violations of human rights in the context of investigations, see here, section VII).

Violations of human rights through shelling and bombing

Recall that this set of issues was, from the jurisdictional standpoint, the most controversial in the case. But once that hurdle was crossed, the Court had no problems in establishing violations – of the right to life, and not just of the people who died but also of those exposed to lethal risk; of the prohibition against ill-treatment, due to the suffering they endured; and even of the right to property. The Court at the outset says that it is not dealing with hard cases of potential conflict between IHL and human rights (para. 747), and essentially throughout the judgment infers Russia’s intent to attack civilians deliberately or indiscriminately. This is all made possible by the fact that Russia failed to provide any contrary evidence, despite being obliged to do so – but again, the same approach can’t easily be emulated before other courts and tribunals. (Note – when reading this section of the judgment one can easily substitute Ukraine for Gaza, but again in doing take note of the caveat above).

757. In the face of the evidence and the numerous credible and reputable reports, the burden is on the respondent State to show that the military attacks perpetrated by its armed forces, including the “DPR” and the “LPR”, were compatible with international humanitarian law. The respondent State could have provided information on targeting decisions and instructions to its troops, strategic and tactical decisions regarding the use of particular weapons in particular areas, decisions regarding precautions taken to minimise harm to civilians and civilian objects and documentary evidence concerning investigations and evidence obtained about the use of artillery or other heavy weaponry in the context of specific incidents such as those to which the preceding paragraphs refer. The respondent Government could have engaged with the findings of the OSCE, the OHCHR, the Commission of Inquiry and others to explain why the conclusions reached with respect to these incidents were inaccurate and to provide information allowing a different conclusion to be reached. The insertion into the Rules of Court in September 2023 of Rule 44F on the treatment of highly sensitive documents further facilitated the provision of relevant evidence to the Court while protecting any national security interests of the respondent State. However, no submissions have been made nor evidence produced by the respondent Government on the conduct of armed hostilities, by its de jure or de facto armed forces in eastern Ukraine and, later, beyond from spring 2014 to 16 September 2022 (see paragraphs 637-638 above). The Court reiterates that the respondent Government participated in the separate proceedings on admissibility and could have, in that context, provided relevant information concerning the military attacks perpetrated before that date. It further reiterates that the respondent Government were asked, on 1 March 2022, to inform the Court as soon as possible of the measures it was taking to ensure that the Convention was fully complied with in the context of its military actions across Ukraine from 24 February 2022 (see paragraph 9 above). In their reply of 5 March 2022 the respondent Government provided no such information, making instead bare assertions that the Russian Federation was not attacking civilians or civilian objects and that it was taking every measure to avoid civilian casualties (see paragraphs 140-141 above). Such bare assertions cannot stand in the face of the overwhelming evidence to the contrary. No further submissions were received from the respondent Government (see paragraph 142 above).
758. In view of the weight of the evidence and the failure of the respondent Government to provide any explanation, it is appropriate for the Court to conclude that the accounts of the OSCE, the OHCHR and the Commission of Inquiry of the military attacks that occurred throughout this period were entirely, or at least largely, accurate. On the basis of the wealth of evidence it has before it, the Court finds that the respondent State was responsible for a pattern of military attacks from May 2014 to September 2022 that did not comply with the principles governing the conduct of hostilities under international humanitarian law.

…

760. There is accordingly no doubt that Article 2 is applicable in respect of the military attacks conducted in breach of international humanitarian law by the respondent State between May 2014 and 16 September 2022. This is the case irrespective of whether such attacks resulted in death or injury: the very nature of the conduct, involving indiscriminate and disproportionate military attacks and also attacks directed at residential areas and civilian infrastructure, was such as to put civilian lives at risk. These deadly attacks cannot be justified under Article 2 § 2 and therefore breached Article 2 of the Convention.
761. As regards the allegation that the military attacks conducted from 24 February 2022 also breached Article 3 of the Convention, the Court observes that the scale and intensity of the military attacks across Ukrainian territory and their widespread failure to respect provisions of international humanitarian law intended to protect civilians inevitably created fear and terror among the civilian population in Ukraine. The Court reiterates that international humanitarian law prohibits acts of violence which have as their primary purpose spreading terror among the civilian population (see paragraph 751 above). Survivors of attacks have been left physically scarred and psychologically traumatised (see paragraphs 721, 725, 737 and 742 above). Even before the intense campaign of bombing civilian energy infrastructure began on 10 October 2022, civilians in heavily targeted cities and cities under siege were left with limited or no access to housing, electricity or water. Those in besieged cities were forced to shelter in basements and buildings for weeks or months, in dire conditions and in the absence of the most essential supplies such as water, food, heat and access to essential medical assistance (see paragraphs 703, 713-714, 725, 738-739 and 742 above).
762. The Court has no doubt that the level of suffering described meets the minimum level of severity for the purposes of Article 3 of the Convention. It therefore finds that the intense and sustained military attacks on Ukrainian sovereign territory by the respondent State between 24 February 2022 and 16 September 2022 amounted to inhuman treatment of civilians in Ukraine and was in breach of Article 3 of the Convention.

Other types of violations

For IHL experts, there is an extensive discussion of siege warfare (paras. 764-766); destruction of property during occupation (paras. 768-9); extrajudicial killing, including of Ukrainian soldiers hors de combat (paras. 1034-1045); unjustified internment of civilians (para. 1122). Each of these is deserving of its own post. The discussion of forcible displacement is again very transposable to other contexts, like Gaza (paras. 1171-6). Throughout the Court is making findings of bad faith from patterns of conduct and Russia’s failure to provide contrary evidence.

There are some violations which are particularly notable because they deal with issues that are largely not regulated by IHL. Here it is human rights law that is more ‘special’ – for those who like all that specialis stuff. Thus there is a discussion of violation of the right to privacy due to data collection in Russian filtering camps (paras. 1179-81), and an extensive discussion of the freedom of speech and freedom of assembly in the context of an occupation (paras. 1347-1350, 1380-2). The Court finds all of these measures unjustified, and generally says that separatist ‘laws’ did not qualify as law for the purpose of justified limitations of rights under the Convention.

Finally, there is a striking finding of discrimination by Russia against Ukrainians on account of their nationality – it is very interesting how the Court juxtaposes its analysis to the ICJ’s CERD case on this issue, in which the discrimination argument largely failed (paras. 1605-7).