The Geneva Academy’s Third-party Intervention in Ukraine and the Netherlands v. Russia

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Third-party interventions at the European Court of Human Rights

Increasing recourse to amicus curiae briefs is a powerful game-changer in contemporary judicial practice. EJIL:Talk! has closely monitored this growing practice, with particular attention to developments before the European Court of Human Rights (ECtHR). Justine Batura and Isabella Risini have analysed the value of the unprecedented number of requests for third-State interventions in what was then Ukraine v. Russia (X). Amicus curiae briefs are also a unique opportunity for academics to share their expertise with human rights bodies in relation to specialized areas of the law and complex issues of interplay between overlapping international legal frameworks. In this vein, the co-editor of this blog, Prof. Marko Milanović, has shared (here and here) the two amicus curiae briefs that he and Prof. Sangeeta Shah submitted, first, in Ukraine and the Netherlands v. Russia regarding the 2014 downing of the MH17 airliner over Ukraine and, more recently, for the merits stage of Ukraine and the Netherlands v. Russia. In the context of its IHL Expert Pool, the Geneva Academy of International Humanitarian Law and Human Rights has intervened as a third party for the first time in front of the ECtHR in this (now joined) case by submitting a brief on 28th April 2023. In this blog post, we would like to share the main submissions in our intervention, and highlight its main points of convergence and divergence with the most recent one prepared by Milanović and Shah. By so doing, we hope to contribute to the discussion on the extremely salient issues raised by this case, and to reinforce, complement, or challenge the tremendously valuable observations made by our colleagues from Nottingham.

The Geneva Academy’s brief

The Geneva Academy’s third-party intervention focuses on three main subjects: (I) the extraterritorial application of the European Convention on Human Rights (ECHR) during an international armed conflict; (II) the relationship between the ECHR and international legal norms governing recourse to armed force between States (ius ad bellum); (III) the interplay between the ECHR and international humanitarian law (IHL).

In the first section, we engage constructively with the most recent case-law by the Court on extraterritoriality, especially the judgment in Georgia v. Russia (II) and the admissibility decision in Ukraine and the Netherlands v. Russia. We submit that the occurrence of military operations during an active phase of hostilities should not be construed as giving rise to an automatic exclusion of extraterritorial jurisdiction. Upon looking at the latest practice of other human rights bodies (as well as recent jurisprudence of the Court itself, e.g. in the Carter case), we further submit that the Court should refine the long-standing criteria that it has developed to infer jurisdiction, by infusing a functional reading into the notions of control (over an area or over individuals). For readers who are less familiar with the meaning and different variants of such a functional approach, we can offer a powerful quote from Prof. Shany. A functional approach to jurisdiction means fundamentally that ‘states particularly well-situated to incur IHRL obligations should do so’. This is in our view the best approach to avoid creating dangerous legal gaps. 

In the second section, we analyse the bearing that the commission of an act of aggression could have on the ECHR in several respects. At the outset, we submit that the occurrence of an act of aggression should not be used to establish or expand grounds for extraterritorial jurisdiction. Then, we look at whether the commission of such an act could affect the determination of compliance with the substantive rights protected by the ECHR. We review recent attempts at integrating more tightly ius ad bellum considerations with international human rights law, and the implications that this would have on both the work of the ECtHR and on key principles of IHL, including belligerent equality. Lastly, we make a concrete proposal to draw consequences from ius ad bellum considerations without side-lining IHL: we suggest that the commission of an act of aggression would entail an automatic breach of the obligation to secure human rights under Article 1 ECHR vis-à-vis the other States parties to the ECHR regime, whereas responsibility vis-à-vis individual victims would still need to be assessed on a case-by-case basis and, where relevant, by taking into account IHL.

In the third section, we submit that the interplay between the ECHR and IHL should not be limited (as in the Court’s recent case-law) to cases of conflict of laws between these two bodies. We highlight several areas of cross-fertilization where IHL offers a necessary tool for interpreting human rights norms even in the absence of such a conflict. Finally, we analyse the interplay between the ECHR and IHL in two areas of particular relevance to the case at hand, where a conflict is traditionally considered as arising. With regard to detention, we provide grounds for the ECtHR to reaffirm that ECHR rules on deprivation of liberty in international armed conflict should be accommodated with IHL rules on internment of prisoners of war and civilians. At the same time, and in light of the evolving practice of States, we submit that failure to derogate from the ECHR should not remain deprived of any legal consequences. In this vein, we propose that de facto derogations, while not preventing an interpretation and application of the ECHR in light of IHL, should still result in the non-derogating State being held responsible for the failure to comply with its obligation of giving notice under Article 15(3) ECHR. As for the use of force in armed conflict, we identify different types of situations in the case under scrutiny, each of them calling for a specific approach to the interplay between the ECHR and IHL.

Comparison with the brief by the Human Rights Law Centre of the University of Nottingham

If we compare our intervention with the one submitted by Professors Milanović and Shah on behalf of Nottingham’s Human Rights Law Centre, we can spot several lines of convergence with regard to the core issues raised by the case. At the same time, differences subsist in relation to specific – but nonetheless important – aspects, on which we will pause here.

To start with, both submissions engage at length with the various grounds that the ECtHR has used to circumscribe jurisdiction during armed conflict. Our interventions share the fundamental belief that the Court should not shy away from addressing claims arising from hostilities on either technical or policy grounds, even when they concern “military operations carried out during an active phase of hostilities” (see, for instance, our similar remarks concerning the “context of chaos”). But the paths leading to this conclusion are slightly different, as manifested by our treatment of the criteria to establish extra-territorial jurisdiction. In relation to personal jurisdiction, Milanović and Shah suggest that the Court ‘should take the opportunity [offered by this case] to overrule the arbitrary approach adopted in Georgia v. Russia (II)’ (para. 10 of their brief). On our part, and for all the compelling arguments that our colleagues put forward, we do not demand of the Court such an abrupt U-turn. It is true, as Milanović has noted elsewhere in this blog, that both Carter and the admissibility decision in Ukraine and the Netherlands v. Russia represent a form of ‘subversive hollowing-out’ of the Georgia v. Russia (II) judgment. But as his and Shah’s submission admits (at para. 8), both those pronouncements were premised on a re-affirmation (not a denunciation) of the theoretical framework set out in that much criticized precedent. For this reason, we preferred limiting by way of interpretation the notion of “isolated and specific acts involving an element of proximity”, instead of rejecting it altogether (see para. 7 of our intervention). This would spare the Court an additional step back in an already wavering jurisprudence, without diminishing its capacity to address conflict-related claims. As past decisions in the ECtHR case-law indicate, nothing precludes (even presumptively) “military operations” in the form of “bombing, shelling [and] artillery fire” from falling into that exception and creating a relevant jurisdictional link under the personal model. Subsuming material facts into legal categories is a standard judicial operation, not an a priori assessment to be done once and for all. Moreover, if only one considers the oft-cumbersome pre-planning phase of such military operations, the “fog of war” becomes a little less thick, and the exercise of some form of control – around which jurisdiction revolves – becomes more difficult to discard (especially under a functional understanding of jurisdiction). Moving to spatial jurisdiction, also this criterion is treated differently in the two submissions. While contesting in principle the “context of chaos” exception to Article 1 jurisdiction, Milanović and Shah are ready to accept it in practice when ‘control over a discrete area is contested to such a degree that it is impossible to determine whether any State exercises control’ (para. 4 of their submission). We are keen on going a little further than that and recognize that control over an area might be established even in situations that involve fighting and contested domination over territory (see paras. 7 and 9 of our submission). This would chiefly be the case in relation to sieges – a method of warfare that is recalled oftentimes in the application of Ukraine, especially for cities like Izium, Mariupol and Sumy. In our view, what matters in such situations is not primarily the intensity of the hostilities or the speed in conquering grounds, but the control that the encircling army exerts over a part of the territory (and therefore, on the persons therein) by being able to determine the entry (or exit) of persons and goods. It is precisely tactics such as sieges and blockades that show how military operations can represent the apotheosis, not the renunciation, of control.

Moving to the interplay between the ECHR and IHL, the main difference between the two submissions is that we did not focus exclusively on the right to life under Article 2 ECHR. Instead, we strived to articulate the relationship between the two bodies of law in relation to several rights protected under the ECHR and applicable in the case at hand. Our goal was to transcend solutions that (i) limit the scope of the interaction to conflict of laws and (ii) result in the primacy of one or the other body of rules. As for the former aspect, we highlighted several instances where IHL can assist in the interpretation of ECHR rights even without a conflict of laws (see our paras. 42-44). This cross-fertilization is not limited to substantive ECHR rights that can be construed against the background of relevant IHL obligations (in the present dispute, this concerns in particular forcible transfers and deportation from occupied territory; pillage and destruction of property; cruel, inhuman and degrading treatment; and the protection of cultural and natural heritage, including the environment). It also involves the domain of procedural rights, with notable implications on, inter alia, obligations of transparency in relation to the duty to investigate violations. As for actual conflicts of laws, our analysis does not result in the super-imposition of one regime over the other, or in the mechanical application of one at the expense of the other. We rather point to a comprehensive, dynamic framework, in which the accommodation of the ECHR regime with certain IHL rules (as in the case of internment of prisoners of war and civilians, or the incidental killing of civilians in compliance with the IHL principles of proportionality and precautions) is complemented by the infusion of human rights standards in relation to specific methods of warfare or armed conflict situations (as for siege warfare or situations governed by the law enforcement paradigm) (see our paras. 45-56). In sum, compared to Milanović and Shah, we strive to provide a broader picture of the interplay between the ECHR and IHL – one that is not concerned exclusively with violations of the right to life in armed conflict, and that, even when it engages with that topic, does not result always and necessarily in the primacy of IHL.

Finally, the points of greater (although still relative) friction between the two submissions concern the questions of automatic derogation, on one hand, and the impact of the commission of an act of aggression, on the other. We certainly agree with Milanović and Shah that human rights obligations concerning the right to life and to liberty in situations of armed conflict should be construed against the background of relevant IHL norms. We also concur with them when they stress the importance of the IHL principle of equality between belligerents for the interpretation and application of human rights norms during conflict. However, we do not believe that these topical questions raised by contemporary practice and scholarship can be solved on the basis of purely ‘pragmatic grounds’ (see Milanović and Shah, paras. 26 and 28). This is why we propose to draw specific legal consequences from the failure to give notice of derogations and, most importantly, from the commission of an act of aggression, but always in a way that does not call into question the central relevance of IHL in governing conflict scenarios. The unprecedented number of third-State interventions in this case demonstrates that the legal and political stakes are too high for aggression not to be woven in the legal fabric of the ECHR (and the case-law of the ECtHR). At the same time, we do not believe that this implies a zero-sum game resulting in the sacrifice of one body of law in favour of the other(s). Milanović and Shah analysed (but ultimately rejected) the possibility of reading a ius ad bellum assessment into the ECHR reference to “lawful acts of war” in Article 15(2) ECHR (para. 28 of their submission). On our part, we have looked for other, meaningful ways of attributing legal value to the commission of an act of aggression – and concluded that this could be done through a progressive reading of Article 1 ECHR (see paras. 36-38 of our submission). Thus, we submitted that the launching of an act of aggression would entail a breach of the obligation to secure human rights under Article 1 ECHR, understood in its horizontal dimension vis-à-vis other States Parties to the ECHR system and entailing autonomous legal consequences. For its part, the vertical relationship between the duty-bearing State and the individual falling within its jurisdiction would still fall to be determined by the relevant ECHR norms, read in conjunction with applicable IHL obligations when demanded by the facts of the case. This solution, we believe, would have far-reaching advantages. It would result in the harmonious co-application of the various spheres of law triggered by the occurrence of an armed conflict (ius ad bellum, ius in bello, and human rights law), without jeopardizing their coherent application. While having the merit of aligning the ECtHR case-law with innovative streams of practice and scholarship, it would also reflect and uphold the protection of the fundamental collective interests that sit firmly at the centre of all these regimes.

Conclusion

We are confident that both similarities and differences in the submissions will, in their own way, assist the Court in addressing this and future cases. The background harmony on certain core issues reflects a widely perceived hope that the ECtHR reaffirm, clarify or revisit some fundamental tenets of its jurisprudence. At the same time, variations in certain solutions testify to the importance and liveliness of the academic debate on these seminal issues surrounding the interpretation and application of the ECHR. We look forward to seeing how the Court will now weave them in a melody for the better protection of human rights in conflict situations.

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