Two Weeks in Review, 24 April – 7 May 2023

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Marko Milanovic offers a summary of the Amicus Curiae brief he co-authored with Sangeeta Shah submitted recently to the ECtHR. The brief, regarding the case of Ukraine and the Netherlands v. Russia, deals solely with the downing of the MH17 plane. The authors examine the outstanding jurisdiction issues that were not dealt with in the Court’s admissibility decision, as well as the interpretation of Article 2 of the ECHR in light of applicable rules of international humanitarian law. Milanovic explains that

The first part of the brief addresses the issues of jurisdiction that are to be determined by the Court at the merits stage, discussing the rules relating to jurisdiction that apply to the conflict between Russia and Ukraine since February 2022. In particular it argues that the Court should overrule the restrictive approach it had adopted in its Georgia v. Russia (No. 2) judgment. This section also confirms the rules of attribution that should be considered when assessing state responsibility for a violation of the ECHR. The second part of the brief examines how Article 2 of the ECHR should be interpreted in light of the applicable rules of IHL. It discusses in particular how Article 2 should be interpreted jointly with Article 15(2) ECHR, which permits derogation from the right to life in respect of deaths resulting from lawful acts of war, and how the Court should take into account IHL rules on distinction, proportionality, precaution and means and methods of warfare in its analysis. Finally, the third part of the brief examines how mistake of fact in the use of lethal force should be considered in light of the obligations under Article 2 of the ECHR and applicable rules of IHL.

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