Ukraine, the Netherlands and 26 Third States Without Russia Before the ECtHR
On 12 June 2024, the Grand Chamber of the European Court of Human Rights held a hearing on the merits in the inter-State case of Ukraine and the Netherlands v. Russia.
The webcast of the hearing lasts four hours and twenty-five minutes, more than double than an “ordinary” Grand Chamber hearing. These four hours and twenty-five minutes are an important milestone in what is undoubtedly one of the most important set of cases in the history of European Convention on Human Rights. They cover more than ten years of Russian activities in Eastern Ukraine, including the open war of aggression since February 2022. The factual dimension of the proceedings alone is a daunting task for the Court.
Overall, the complexities of the procedural and substantive questions can only be hinted at here. Our account can only be anecdotal. We think the hearing is worth reporting on as it is certainly no usual business in Strasbourg. The proceedings raise the crucial question of what the Court and the Convention are meant to uphold. The aspects under consideration are, inter alia, the question of jurisdiction under Article 1 ECHR and the Convention’s interaction with international humanitarian law during what has become a bitter normality: armed conflicts in Europe. Parallel individual applications to the inter-State proceedings add complexity. The long duration of the hearing, which spanned a whole day, is also remarkable given that the Russian Federation did not participate in the proceedings. Following its exclusion from the Council of Europe (CoE), and its departure from the ECHR, Russia does not actively participate in the proceedings. The Court remains, however, competent to adjudicate over events up until 16 September 2022.
Ukraine’s Age-Old Quests for Russia’s Accountability and the MH17 Tragedy in Strasbourg
The proceedings bring together a total of four inter-State applications. Two Ukrainian applications, brought respectively in 2014 (43800/14) and 2016 (8019/16), as well as one application by the Netherlands from 2020 (28525/20). The fourth set concerns the time Russian invasion since February 2022 (10055/22). The complaints concern serious and systematic ECHR violations allegedly committed by Russia in the context of events occurring in Eastern Ukraine since 2014, particularly in Donetsk (DPR) and Luhansk (LPR), including the abduction and forcible transfer of children and the downing of Malaysia Airlines Flight MH17. In November 2022, the Court’s Grand Chamber declared three of the applications admissible in a more than 200 page decision with a voluminous annex, which was delivered in January 2023. The ECtHR found that the alleged administrative practices occurring in Eastern Ukraine from 11 May 2014 onwards, as well as the downing of flight MH17, fell within Russia’s jurisdiction under Article 1 ECHR, on account of its military, economic, logistical, and political support to the separatists controlling DPR and LPR oblasts.
Apart from this set of proceedings, there are three other inter-State complaints between Russia and Ukraine pending in Strasbourg, as well as some 8,500 individual cases, involving widespread human rights violations in Crimea and Eastern Ukraine, political assassinations in Russia and other States, and the Kerch Strait incident. The judgment on the merits in Ukraine v Russia re Crimea which was rendered on 25 June is not at the center of this blog.
The Role of Individuals in Inter-State Proceedings
The individual applicants who brought their claims under Article 34 ECHR against Russia are not formally parties to the inter-State proceedings. The relationship of inter-State and individual applications is not explicitly regulated in the Convention. The evolution of the ECHR system, which Isabella Risini and Tim Eicke recently sketched out, explains this gap. The Court is now tasked to navigate this blind spot of the Convention.
The MH17 Air Disaster Foundation, together with the individual applicants in the Ayley and Angline, Bakker, and Warta cases, have been invited by the Court to provide one set of joint written submissions as third parties. Mr Piet Ploeg, as representative of the individual victims and their next of kin, was allowed about ten minutes within the allotted speaking time of the Netherlands (starting around 1:43). He drew the Court’s attention to the suffering and mental anguish of the victims’ relatives because of the loss of their loved ones, their grief being further aggravated by Russia’s lack of cooperation in the investigations. His mostly unanswered questions resonate loudly with the silence of Russia. It is worthwhile to remember that it is the individual, not the States, who are directly or indirectly harmed and injured by a violation of one or more Convention rights. Quite rightly, the ECtHR showed a remarkable openness to consider individuals’ observations in the context of an inter-State case. While we applaud the role given to individuals in inter-State cases, Article 33 ECHR cannot act as a ‘comprehensive umbrella’ capable of absorbing all quests for individual justice. At the same time, individual justice is hart to achieve in the context of the scale of human rights violations here proceedings are about. As emphasized by Tigroudja, the ECtHR must strive to preserve one of its greatest procedural cornerstones, i.e. Article 34, placing the individual at the heart of the ECHR’s framework. At the same time, it must give meaning to the notion of collective enforcement of human rights.
Arguments of the Applicants
Ukraine argued, inter alia, that in order to prevent any legal ‘vacuum’ in the Convention’s espace juridique, the Court should establish Article 1 ECHR jurisdiction whenever a Contracting State launches a war of aggression against the territory of another member State. The Dutch Government, speaking as applicant in the MH 17 part of the proceedings, addressed the question under the lens of Article 2 ECHR (right to life) procedural obligations as regards the downing of MH17. According to the Netherlands, by supplying the Buk-TELAR to the separatists, and by failing to adopt investigative measures, Russia violated its obligations under Article 2 ECHR as well as the principle of distinction under IHL, both of which go ‘in tandem’ without contradicting themselves.
Ukraine v. Russia (X) and 26 More
The case of Ukraine v. Russia (X), originally numbered 11055/22, is the case that deals with Russia’s invasion of Ukraine since February 2022. That case was joined with the older Ukraine and the Netherlands v. Russia proceedings (nos. 43800/14, 8019/16 and 28525/20), part so f which have been pending since 2014. This joinder can be seen as a visible effort to provide speed where justice can be expected only very slowly, if at all. In the tenth set of proceedings lodged by Ukraine, twenty-six member States of the ECHR as well as Canada were granted leave to submit observations as third parties. The briefs are available in a comprehensive analysis by Marko Milanović. From our perspective, the participation of third States, which is unprecedented in scale, should be rendered accessible through the Court’s website, for the sake of transparency.
All Eyes on the Relationship Between ECHR and International Humanitarian Law
The intervention by the 26 third States via the representative of Norway, Henriette Busch, concern only the proceedings of Ukraine v. Russia (X). The oral arguments presented by the States addressed State (extra)territorial jurisdiction pursuant to Article 1 ECHR and, most prominently, the application of the Convention in armed conflicts. The complexity of the arguments also emerges from the way these arguments blend into each other. Further, there is no “one-size fits all”- formula that would channel the interaction of the two bodies of law. The interventions of third States serve as a much-needed participation in a dialogue, as answer to the Court’s 2021 finding in Georgia v. Russia (II) that, because of the ‘context of chaos’ during the active phase of armed conflict, it (§ 142) “lacks the legal basis to assessing acts of war and active hostilities in the context of an international armed conflict outside the territory of a respondent State” (§ 142).
As explicitly clarified by the Court’s Practice Directions on the modalities of interventions, third parties are not entitled to express support directly for one or the other party. Justine Batura looked into this procedural update in more detail. The support of Ukraine technically would entail the support of the idea that the Convention applies in armed conflict. States usually intervene in self-interest in the case’s outcome (Dzehtsiarou 2023).
What would Winston Churchill do?
As to the relationship between the ECHR and the jus in bello, third States stressed the need to consider IHL in the interpretation and application of the Convention, relying of the lex specialis principle for the purpose of resolving normative conflicts. The ‘great absent’ from third States’ oral arguments seemed to be the derogation clause pursuant to Article 15 ECHR, and its reference to deaths resulting from lawful acts of war. Prodded on the point by Judge Tim Eicke’s questions (at about 3:06), third States preferred to defer an answer to a later date. The representatives of Poland and the United Kingdom, on the other hand, replied with a ‘mixed bag’ of arguments. Drawing from both the ECHR’s travaux préparatoires and State practice, they suggested that the Convention was never intended to regulate ‘lawful acts of war’ as referred to in Article 15 ECHR. The point made is not entirely convincing. In an attempt to correct the shot, Sir James Eadie, acting representative of the British Government, observed (starting from 4:09) that the intention of the drafters was never to lead to a complete exclusion of possible exceptions to Article 1 ECHR in cases of armed hostilities. Winston Churchill would – perhaps – interpret the UK’s intervention as a noteworthy interaction with both the Court and the Convention in times when Brexit from the ECHR is discussed more or less openly.
Poland argued also from the perspective of immediate neighbor of Ukraine. Poland’s representative, Eliza Suchożebrska, reminded the audience and the Court of the history of the Council of Europe and the reasons of why the Convention was created from the ashes of World War II. Against this background, a detachment of the ECHR and armed conflict was deemed to be counterintuitive.
The 26 third States emphasized that jurisdiction has to be fact-based, having regard to various factors of effective control such as a State’s military presence on a given territory or because of a military occupation. Overall, as Batura and Risini observed elsewhere, third parties might help alleviate Russia’s non-participation.
The Normalization of Adjudicating War in Europe
In the 1950 Convention’s original architecture, inter-State applications were envisaged as the default mechanism to oversee the application of the substantive provisions enshrined therein. More than seventy years later, inter-State proceedings remain the core business of the Court. The ECtHR recently published its judgment on the merits in Georgia v. Russia (IV). The spotlight was, however, on Klimaseniorinnen, Duarte, and Carême, published on the same day. Accordingly, the inter-State judgment has gone rather unnoticed in the espace academic (except for Veronica Botticelli’s forthcoming piece in the EHRLR). This is not to say that climate change is not an extremely important issue. However, it is high time that we all must ask ourselves where, when and what should be the objects and the subjects of deliberation and adjudication in Strasbourg, and what is meant to be upheld by these exercises.
