Ukraine and the Netherlands v. Russia – A Tour de Force in Applying the Convention as Part of International Law

By Dr. Jasmine Sommardal, Associate Editor of the ECHR Blog 

On 9 July 2025, the Court delivered its long-awaited merits judgment in the case of Ukraine and the Netherlands v Russia. The case arose from four inter-state applications and concerns grave allegations of Convention rights, including administrative practices concerning extrajudicial killings, torture and arbitrary detentions in eastern Ukraine, the suppression of Ukrainian language in schools, the unlawful deportation of Ukrainian children, and the downing of Malaysia Airlines Flight MH17 in July 2014.

The Court concluded numerous Convention violations. Upon the publication of the judgment, the Registrar of the Court described it as one of the most consequential judgments in the Court’s history (see here). It has been lauded as ‘as good as it gets’, and ‘pure joy’. It is an almost unanimous judgment without a single separate opinion, sending a strong signal about a unified Court. The judgment is of considerable length: 497 pages, including 1652 paragraphs.

 This post will not provide a complete overview of the facts of the case or analysis of the Court’s reasoning (the legal summary is available here). Instead, it aims to give some initial reflections. These concern: I. jurisdiction in active state of hostilities and the attribution of conduct, II. questions of evidence and burden of proof, III. the relationship between the Convention and international humanitarian law, and IV. some points on the substantive rights violations concluded. In conclusion, this case is a tour de force of the Court in harmoniously applying the Convention as part of public international law.

I.                Jurisdiction in Respect of Military Attacks and the Question of Attribution

One major issue in this case was extraterritorial application and how (perhaps less whether) the Court would establish jurisdiction with respect to active state of hostilities (compare and contrast, Ukraine v. Russia (re Crimea), which did not concern military attacks). As noted elsewhere, the crucial matter was how the Court would relate its review to its findings in Georgia v. Russia II, where it had held that ‘in the event of military operations – including, for example, armed attacks, bombing or shelling – carried out during an international armed conflict, one cannot generally speak of “effective control” over an area’ and that the ‘reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area’ (para 126).

The Court distinguished (as expected, see here) the case at hand from the situation in Georgia v. Russia II. Yet, it may be said that it did more – elevating this distinction to a general level, by noting that it in view of the flagrant and unprecedented nature of the case, it had to ‘reflect anew on the exercise of its own jurisdiction under Article 32 to interpret and apply the Convention’, and taking into account that the majority of the Contracting Parties had expressly referred to ‘their support for accountability for all violations of international law’ (para 349). The Court did not, as in Georgia v. Russia II, restrict its review with respect to the active hostilities but established jurisdiction of the Russian Federation with respect to individuals affected by its military attacks (para 361).

The reasoning that led the Court to this conclusion is remarkable. The Court, in particular, held that the full-scale invasion of one High Contracting Party by another High Contracting Party ‘marked a watershed moment in the history of the Council of Europe and the Convention’ (para 349). It noted that the Parliamentary Assembly and Committee of Ministers had swiftly reacted and excluded the Russian Federation from the Council of Europe (on this, see Dzehtsiarou). The Court held that ‘[i]n 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’ (para 349).

The Court also took into account that the objectives of Russia 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’, objectives which are ‘wholly at odds with the Council of Europe peace project based on democracy, human rights and the rule of law’ (para 360). Juxtaposing the case with Georgia v. Russia II, it held that 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’ (para 361).

It is thus the broad scale, planning and gravity of the matter, as well as the response of other Council of Europe institutions, that lead the Court to revisit the earlier conclusions on chaos during the active phase of hostilities. The question is what these justifications imply. It could imply that in military interventions of the Contracting Parties overseas or in non-Council of Europe Member States, which may be less ‘extensive’ or ‘strategically planned’, the matter could be approached differently. Even without referring directly to a ‘European sphere’ of rights protection, such a normatively influenced assessment of effective control could still raise a danger of an inherent preference of the Court towards maintaining such a sphere (the Court refers to the Convention being interpreted in line with ‘contributing to the preservation of peace and security in Europe’ (para 349, emphasis added) and possibly looking at other interventions more leniently. It does not, as such, exclude the application of the Georgia v. Russia II notion of ‘a context of chaos’ ruling out jurisdiction in future cases. This assumption becomes more persuasive when reading Shavlokhova and Others v. Georgia, a case that concerns the same events of the five-day Georgia-Russia war, but Georgia’s jurisdiction, rather than Russia’s extraterritorial jurisdiction. In that case, the Chamber found that Georgia did not exercise territorial jurisdiction for much the same reasons as those in Georgia v. Russia II (for a longer analysis of the case, see here).

However, while some had feared that Georgia v Russia II established the inapplicability of the Convention during an active phase of hostilities, such presumptions no longer hold. In Ukraine and the Netherlands v. Russia, it seems that the ECtHR, in a human-rights-friendly manner, infuses the objectives of the Council of Europe into the jurisdiction of the Contracting Parties. Jurisdiction seems to be normatively informed by the nature of the Convention, although the Court has been more cautious in this jurisdictional respect in earlier cases (notably, Bankovic and Others v. Belgium and Others para 65). Importantly, the Court now also justifies its own authority with the wish of a majority of the Contracting Parties (para 349). The Court can be said to tie its more expansive approach to their agreement on the need for an extensive understanding of ‘jurisdiction’.

With respect to attribution, the Court held that ‘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’ (para 363). It referred to the situation of dependence and control being such 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’ (para 363).

This is a clear and, in my view, laudable direct reference to the attribution of conduct to a state in accordance with ARSIWA, as de facto organs of the state, in line with public international law and in particular the case law of the ICJ (Bosnia Genocide Case, Nicaragua case).

II.              Evidence and Burden of Proof

The second point relates to questions of evidence and burden proof. Questions of evidence, indeed, play a special role in interstate cases, where the Court often acts as a first instance.

First, the Court, in an impressively detailed review of the established evidence on administrative practices in the case, relies on reports by numerous different organs, including the OHCHR, the Special Monitoring Mission to Ukraine, the OSCE and its bodies, ODIHR, UN Special Rapporteurs, the HRMMU, the Independent International Commission of Inquiry on Ukraine, UN Secretary General, the Council of Europe Commissioner for Human Rights and a large number of other actors, including NGOs (for instance, paras 639-742, or paras 774-1022, 1133-1150, 1193-1263, 1285-1338, 1357-1373, 1392-1436, 1461-1480, 1509-1545). The extensive use by the Court of this documentation confirms the importance of the work made to document the situation on the ground.

Second, it is notable that in the whole judgment, the Court consistently refers to the absence of information from the Russian Federation regarding the violations alleged. This allows the Court to conclude many substance matters without entering into potential justifications of the Russian Federation’s actions. Together with the existing evidence, the lack of opposing arguments often led the Court to (seemingly with ease), often with inferences, conclude that the actions concerned were in breach of IHL and the Convention interpreted in light of IHL (for instance, paras 608-609, 758, 769, 1043, 1492, 1571, and 1588).

One example among many concerns the downing of the MH17, and whether a potential honest and reasonable mistake in fact with regards to the civilian nature of the target could impact the assessment of compatibility with IHL. The Court essentially inferred from the other existing evidence and the lack of evidence provided by the Russian Federation that ‘no other measures were taken to ensure the accurate verification of the target of the Buk-TELAR’, and on this ground concluded that the launching of the missile was in in breach of the international humanitarian law principles of distinction and precautions (para 461). In this way, it avoided dealing with somewhat more debatable questions relating to how to assess a mistake in fact under IHL.

Another interesting aspect relates to the possible breaks in an administrative practice established by the Court, especially the practice of transferring children. The Court held that ‘[g]iven the overwhelming evidence of systemic transfers and of facilitating the adoption of Ukrainian children shortly before the 2022 invasion, the movement of children across the border between 2014 and 2022 gave rise to a real concern that the practice of transferring children to Russia established in the summer of 2014 continued throughout the intervening years’ (para 1587). The Court did not confine its examination of the complaint about the practice of transfering children only to the three groups transferred in 2014 and those transferred in 2022. Certain temporal breaks between the sequences of acts did not ‘affect the continuity of the overarching pattern and the intention behind it’ (para 1588).

III.            Relationship Between the Convention and International Humanitarian Law

The third main aspect of the judgment is the Court’s engagement with international humanitarian law. In addition to addressing the questions of a possibility of derogation, jus ad bellum, and the idea of IHL as lex specialis, the Court, in a remarkable way, finds support and interprets the Convention obligations in light of IHL.

i)                Derogation and Review of the Use of Military Force

The Court noted that the respondent Government had not derogated from Article 15 (para 426). In any event, the Court held that it had to pursue its ‘general interpretative task under Article 32 of the Convention in accordance with the principles clearly laid out in its previous case-law’. Nothing in the reasoning implies a less stringent standard of review due to facts which could have justified a derogation, or a distinction between ‘strategic political choices (use of military force in Chechnya), which were not within the Court’s realm, and other aspects of the situation, which the Court was able to examine’ (see Finogenov and Others v. Russia, para 215). Quite the opposite, the Court is particularly reprehensive about the Russian Federation’s objective being ‘no less than the destruction of Ukraine as an independent sovereign State, through the forcible acquisition of Ukrainian territory’ (para 1604).

It is also notable that while condemning the Russian activities in extremely strong wording, the Court does not directly refer to the invasion as an unlawful act. Indeed, the Court does not consider potential arguments of jus ad bellum when determining the compliance of the respondent State with substantive Convention rights. It held that ‘[i]n the absence of submissions from them on this question, the Court does not consider it appropriate to address it’ (para 431).

ii)              Lex Specialis

The Court also held that it ‘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’ (para 428).

The Court noted that the ICJ, in Democratic Republic of the Congo v Uganda, had not referred to lex specialis but referred to that ‘both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration’ (para 428). Yet, the Court’s use of IHL as an ‘interpretive tool when determining the scope of human rights guarantees’ confirms that it does not itself endorse the ICJ’s traditional approach, which involves that of lex specialis (in Nuclear Weapons, the ICJ held that ‘whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself” and in the Wall advisory opinion that ‘As regards the relationship between international humanitarian law and human rights law, […] the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law’ (para 106). The Court does not conceive of IHL as hierarchically superior or that it displaces human rights obligations in armed conflict.

iii)             Interpreting the Convention in Light of International Humanitarian Law

One of the most central aspects of the case is how the Court consistently interprets the Convention obligation in light of IHL. The Court held that it will take into account the relevant provisions of international humanitarian law where relevant in determining the scope of the guarantees under the Convention (para 429). In this respect, it ‘cannot avoid interpreting international humanitarian law’ (para 429). The judgment is, indeed, replete with such interpretations. In the whole judgment, the Court relies on unlawfulness under IHL in order to conclude Convention violations.

This can be compared and contrasted with the Court’s approach in cases such as Georgia v. Russia II, where the Court took into account the relevant provisions of international law, but primarily in view of establishing whether there was a conflict between those provisions and the Convention (paras 237, 267, 291, 331, 325). That approach seems to have been influenced by Hassan v. the United Kingdom, where the Geneva Conventions were relied upon so as to narrow down the requirements under Article 5 of the Convention in the context of an armed conflict. In fact, in Hassan, IHL and the Court’s general approach to applying Article 5 were conflicting.

The role played by IHL in the Court’s assessment of the Convention is entirely different. The Court consistently reads the Convention obligations and establishes their broad extent in light of IHL. Readers will be reminded of Ukraine v. Russia (re Crimea), where the Court held that when extending the application of its law to Crimea, it did so in contravention of the Convention as interpreted in light of IHL (para 946).

iv)             The International Humanitarian Law Referred To

For the reader versed in IHL, this case is thus a real treat. The Court took into account a great number of IHL obligations. What follows is an overview of these obligations, which were pivotal for the conclusions on the Convention violations.

With respect to the downing of the flight MH17, the Court referred to the IHL principles of distinction and precautions (paras 456-457), and an obligation to investigate also arising under international humanitarian law (para 485).

With respect to the administrative practices alleged, the Court generally referred to ‘the need to interpret the notion of ‘lawfulness’ in the light of relevant provisions of IHL, requiring the occupying power to respect, unless absolutely prevented, the laws in force in the country and that penal laws occupied territory generally remain in force (para 606), and for instance that ‘if local laws are sufficient to secure the aims envisaged, any new provision applied by the occupying authorities could not be viewed as “essential” and therefore lawful’ (para 608). The Court thus continues its review of the legal acts of the ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ along the lines of Ukraine v Russia (re Crimea), interpreting the notion of ‘lawfulness’ in the light of IHL (para 606). This is significant. The Russian Government had failed to make arguments that justified the introduction of laws of the occupying power, as provided by IHL. This led the Court to conclude that ‘the conditions required for Russian law or measures taken by the occupying authorities to be recognised as providing a valid legal basis, for Convention purposes, for acts undertaken in Ukraine have not been met in the present case’ (para 609). It also led, for instance, to the Court concluding violations of Article 1 of Protocol 1, due to the failure to satisfy the Convention lawfulness requirement, when interpreted in accordance with IHL with respect to appropriation or destruction of property. In its review of other rights subject to a limitation clause, the Court took into account that laws, legal acts of the DPR, LPR or administrative decisions of the Russian Federation constituted ‘no legal basis’ for the measures under international humanitarian law (for instance, para 1349, para 1591).

Under its review of Article 2 in combat, the Court referred to the principles of distinction, proportionality and precautions in attack, as well as rules governing the means and methods of war prohibiting ‘the use of weapons which are by nature indiscriminate and the starvation of civilians’ and ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population” and that ‘it is prohibited to kill, injure or capture an adversary by resort to perfidy’ (para 751).

Under its review of Article 3 and Article 1 of Protocol No. 1, the Court referred to limitations in IHL on the use of sieges. This for instance included obligations to spare certain buildings when not used for military purposes, obligations that ‘prohibit the starvation of the civilian population and attacks against objects indispensable to the survival of the civilian population’ and requiring ‘parties to the conflict to endeavour to conclude local agreements for the removal from besieged or encircled areas of wounded, sick, infirm and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas’ (para 765).

With respect to the alleged violations hors de combat, the Court referred to ‘obligations of humane treatment and respect for life and the prohibition of the murder during international armed conflict’, for instance holding that ‘[t]he wilful killing of protected civilians, wounded soldiers who are hors de combat or POWs constitutes a grave breach of international humanitarian law’ (para 1035). In its review under Article 3, the Court extensively referred to rules on the treatment of civilians and persons who are hors de combat (paras 1068-1069).

Notable in this respect is that it found ‘especially abhorrent’ the prevalence of sexual violence and rape in the occupied territory (para 1077), the widespead rape of women and girls being a flagrant breach of IHL. The Court noted that ‘[t]hese forms of humiliation and violence take on powerful political and symbolic meanings’ (para 1077). It noted that ‘raping of women and girls in the context of an armed conflict has also been described as a means for the aggressor to symbolically and physically humiliate the defeated men’, and that ‘[t]he sexual abuse, torture and mutilation of male detainees is often carried out to attack and destroy their sense of masculinity or manhood. Abuse and torture of female members of a man’s family in front of him is used to convey the message that he has failed in his role as protector’ (para 1077). The Court further referred to the ICC Statute defining ‘rape committed as part of a widespread or systematic attack directed against any civilian population as a crime against humanity’ (para 1078). The Court’s emphasis on the symbolic signals of humiliation and domination in this context is laudable.

With respect to forced and compulsory labour, the Court referred to the fact that IHL permits labour by prisoners of war but ‘prohibits uncompensated or abusive labour’, and the detailed provisions of the third Geneva Convention in this respect (para 1092), and the prohibition to compel nationals to serve in the forces of a hostile power (para 1092).

With regards to the deprivation of liberty of civilians in occupied territories (para 1113), the Court noted that ‘deprivation of liberty will only be compatible with Article 5 § 1 if it has been imposed for one of the reasons listed in sub-categories (a) to (f) and was in accordance with a procedure prescribed by law’. But the Court distinguished the case from the situation in Hassan where the fact that IHL may allow for more far-reaching deprivations of liberty than Article 5 normally would was relevant. It noted that it had no information on the Russian Federation upholding the requirements of the GC IV. Thus, the deprivations of liberty could not‘conceivably be said to have amounted to lawful internment under GC IV. It is therefore not necessary for the Court in this case to address the apparent conflict between the authorisation for internment of civilians under the relevant provisions of international humanitarian law and the exhaustive categories of permissible detention listed in Article 5 § 1’ (para 1122).

With respect to the Article 8 assessment of displacement of civilians in occupied territory, the Court referred to IHL in its assessment of whether the displacement was ‘forced’ (para 1166). It referred to the ICTY Karadžić case, and the IRMCT’s Prosecutor v. Ratko Mladić (para 1167), as well as the UN Guiding Principles on Internal Displacement and materials from the ICRC.

Under its review of Article 9, the Court referred to the ‘obligation to respect the religious convictions and practices of persons in occupied territory’ (para 1267), and under Article 10, to the ‘killing, imprisonment and intimidation of civilian journalists is prohibited by international humanitarian law’, and that journalists engaged in dangerous professional missions are likend to civilians (para 1342). Under Article 11 concerning the right to peaceful assembly and association, the Court took into account the entitlement of an occupying state, to take measures to maintain law and order (para 1380).

With regards to the destruction of property as the result of unlawful military attacks, the Court also extensively took into account IHL (para 1439). The Court among other things referred to the fact that pillage is prohibited under all circumstances under IHL, and that although IHL in some circumstances permits the appropriation of certain property by the occupying power, such measures must satisfy a certain ‘quality of law’ to fulfil the ‘lawfulness’ requirement (para 1448) and requires the fulfilment of certain conditions (para 1449). The Court also referred to the destruction of property being prohibited unless absolutely necessary by military operations (para 1450).

As to the question of suppression of the Ukrainian language in schools, the Court held that the provisions of IHL, read together with the obligation to maintain the laws in force in the occupying territory ‘unless absolutely prevented’ did not authorise the he occupying Power to change the educational system in occupied territory, referring to the importance of ‘children in occupied territory being educated in line with their language and cultural traditions’ (para 1490). The Court also noted the ICJ’s finding of a violation of CERD with respect to these practices (para 1491).

In relation to the alleged administrative practice of abduction and transfer of children, the Court also referred extensively to IHL (para 1567). It held, among other things, that ‘for transfers of children to qualify as lawful evacuations under international humanitarian law, they would have had to comply with a number of requirements (see paragraph 1567 above). Evacuations may be carried out only in case of “imperative military reasons” or for the “safety of the population”; within the bounds of occupied territory unless impossible; and only temporarily. There are extensive procedural rules concerning the need for written consent from parents or legal guardians and the obligation to make arrangements to facilitate the return and reunification with their families of evacuated children’ (para 1593).

Similar to Ukraine v. Russia (re Crimea), the lawfulness requirement is central in the Court’s review. But the Court’s extensive approach to ‘lawfulness’ of the Convention, infusing it with requirements of IHL, did not preclude it from noting something about the pursuance of legitimate aims and proportionality. The Court held that the evidence it had had regard to, presented a ‘picture of interconnected practices of manifestly unlawful conduct by agents of the respondent State on a massive scale’. The Court also noted that it was inherent in its findings that ‘there was official tolerance for this conduct by the superiors of those directly responsible and by the high authorities of the Russian Federation’. It therefore separatelly underlined that the evidence showed conduct that was ‘clearly disproportionate to any aims that might be considered legitimate under the qualified rights in the Convention’ (para 1625).

A further example of reasoning which shows consideration for the broader sphere of public international law, is the Court’s review of the discriminatory nature of Russia’s violations. The Court referred to ICJ’s judgment in Ukraine v. Russian Federation on CERD, which had found that ‘any disparate adverse effect on the rights of Crimean Tatars and ethnic Ukrainians can be explained by their political opposition to the conduct of the Russian Federation in Crimea and not by considerations relating to the prohibited grounds under CERD’ (para 1605). However, contrasting the Convention with the CERD, the Court noted that Article 14 also prohibits discrimination on the ground of political opinion, and concluded a Convention violation.

Notable in this judgment is also that it uses terminology – such as ‘occupation’, ‘annexation’ and ‘occupying Power’  –  in line with that used by the ICJ (paras 145-149, also noted here).

IV.            On the Substantive Rights Violations

Beyond the extensive use of evidence, the implications that came with the Russian Federation’s failure to answer the allegations, as well as the extensive use of IHL and international legal materials, many of the Court’s conclusions of the Convention interpretation may not come as a surprise. However, some short points can also be made in this respect:

-        With respect to the dawning of MH17, the Court established an obligation to cooperate with the Joint Investigation Team (for more on the IHRL of cooperation, see Feihle,)

-        The relatives of those killed in the dawning of MH17 had been subject to treatment contrary to Article 3, due to the way in which the Russian authorities had treated the case. There is a notable reference to secondary victimisation, a concept clearly on the rise in the Court’s case law, due to the spreading of misinformation (para 550).  

-        Besides establishing a violation of Article 3 with respect to the treatment of children, the exceptional circumstances of the case also led the Court to consider that the removed children were deprived of liberty within the meaning of Article 5 (para 1595).

Conclusion

A lot more ink is needed to get to the depth and breadth of this landmark judgment. This post has only provided some initial reflections. Yet, it is clear that while the Court is unable to undo the Russian aggression against Ukraine, it has sought to put Convention law on the right side of history. With a revised approach to jurisdiction, and the extensive interpretation of the Convention in the light of IHL, this case sends a strong signal and a precedent for the future. This case is a tour de force of the Court in harmoniously applying the Convention as part of public international law.

How can Early Career Researchers Shape the Law of the ECHR? Some Reflections from the Inaugural Workshop on Writing and Publishing in that Field

* By Matthias Hermes, Reza Khabook, Frederic Kupsch, Angelika Nußberger and Nikos Vogiatzis

In February 2024, the Academy for European Human Rights Protection, University of Cologne and Essex Law School, University of Essex jointly organised and funded a workshop titled “Writing and Publishing in the Law of the ECHR: A Workshop for Early Career Researchers”. More than one year has elapsed since this inaugural workshop, and plans are underway to prepare the second edition in 2026. The purpose of this post is to reflect on the discussions in Cologne and invite comments and suggestions about ways in which the ECHR legal community – and especially early career scholars – can contribute to the development of that field. 

Background

Our starting point was that Early Career Researchers (broadly understood) play (or should play) a crucial role in researching the Convention system and participating in discussions on its future development. If that is so, how should this be made possible? What are the challenges that one might face along the way? Is there any scope for such research to be impactful – either before the European Court of Human Rights or other organs within the Council of Europe system?

Our main purpose was to initiate a conversation and exchange ideas around issues related to writing and publishing in the Law of the ECHR. To that end, the workshop included four panels composed of experienced researchers and practitioners working at the European Court of Human Rights. The panels were followed by a hands-on roundtable session where participants and speakers discussed current projects and developed ideas in small groups.

A brief overview of the sessions

In their opening remarks, Professor Angelika Nußberger and Dr Nikos Vogiatzis outlined the broader aims of the workshop. The starting point was the ever-increasing research in the field of the ECHR, and the ever-increasing debates or contestation regarding the role of the European Court of Human Rights (ECtHR). In parallel to this, we witness significant developments in the Council of Europe (most notably Russia’s expulsion from the organisation and the Reykjavik Declaration that followed). While stressing the valuable contributions of Early Career Researchers (broadly understood) in that field, Nußberger and Vogiatzis pointed out that the aim was to initiate a conversation and exchange of ideas around writing and publishing in this field. This was also meant as a network opportunity so that scholars have an opportunity to meet with each other, identify common interests or challenges, and keep in touch (also with the organisers of this workshop). The importance of connecting theory and practice in the field of the ECHR was also underlined.

With these thoughts in mind, the workshop was organised around 4 key panels and an optional session in smaller groups.

The first panel, titled ‘How to write articles in the Law of the ECHR’ and moderated by Dr Júlia Miklasová, included presentations by Professor Natasa Mavronicola and Dr Cathérine Van de Graaf. Mavronicola presented and explored various topics that a researcher can investigate regarding the ECHR. In this regard, she distinguished between "unaddressed" and "under-addressed" issues. Mavronicola argued that while only a few issues can be categorised as unaddressed, a large number of issues fall within the second category. As an example, she mentioned absolute rights which are not fully discussed in the literature. She also drew participants’ attention to the significance of applying new theories and methodologies to re-study and interpret ECHR topics. 

Van de Graaf explained how early-career researchers can publish their PhD thesis, with a particular focus on the advantages and disadvantages of the article-based format. She then mentioned three stages in the process of obtaining feedback: internal feedback (from co-supervisor, peers and members of an advisory committee or equivalent); external feedback (including from scholarly networks); and, as a last step before publication, peer review reports. She emphasised the significance of considering the intended audience of the research (and the dissemination of results), which will undeniably impact on the publication format.

The chair of the second panel, Dr Sabina Garahan, introduced the next broader topic: different methodologies in the Law of the ECHR. Professor Veronika Fikfak drew on ongoing research projects concerning compliance with judgements of the ECtHR and discussed the use of empirical methods when researching the ECHR. By referring to the significance of research questions as the main factor in deciding on the methodology to be adopted, she underlined that researchers should not view the empirical method as a trend when the research question does not call for its use. 

Professor Giuseppe Martinico underlined the importance of comparative research in the field of the ECHR. He described comparative research as a tool to understand the genesis of many of the Convention's provisions, and to analyse and understand pluralism and consensus. Moreover, it enables the researcher to identify whether the ECHR is accepted or challenged at the national level. 

Professor Kanstantsin Dzehtsiarou, co-editor in chief of European Convention on Human Rights Law Review, and Professor Katharine Fortin, editor in chief of the Netherlands Quarterly of Human Rights, added valuable insights from the editors’ perspective in Panel 3, which was chaired by Dr Nikos Vogiatzis. Although a seemingly obvious point, both emphasised the importance of reading carefully the author and submission guidelines prior to submission.

However, formal requirements are only the starting point: in the words of Dzehtsiarou “what matters is the research done!” Fortin provided insightful indications about elements of a good article. The scope of the article needs to be clear and realistic; it should focus on a central research question backed up with a methodological approach and a clear structure. Both speakers agreed that robust research and a profound engagement with existing literature matter considerably. On the value of peer review, both speakers pointed out the importance of constructive feedback, but also that this can sometimes manifest itself as a dialogue between the author and the reviewer (e.g., in cases where clarifications might be needed). 

In the last panel, titled “What do Judges or Members of Other Organs of the Council of Europe Read? How to Bring Legal Research to the Attention of the European Court of Human Rights?”, chaired by Frederic Kupsch, former judge and vice-president of the ECtHR, Professor Angelika Nußberger and Ana Vilfan Vospernik, lawyer at the Directorate of the Jurisconsult (ECtHR), provided insights from the perspective of the Court. 

Vilfan Vospernik presented the work of the Directorate, including the work of the Research Unit, and introduced the Knowledge-Sharing process within the Court, facilitated by the Jurisconsult. It is, in Nußberger’s words, “the backbone of the Court” as it provides valuable input and feedback to the drafters of judgements and decisions. Vilfan Vospernik shed light on the ECHR Knowledge Sharing platform (ECHR-KS) (launched externally in 2022), in which the ECtHR’s case-law and the case-law analytical material is grouped under different themes.

There are many other ways to bring legal academic literature to the attention of the Court. According to Nußberger, a judge reads very selectively as it is already extremely time-consuming to read all the material of the case files so that little time remains for additional reading. However, she suggested that there might be a more indirect way in which academia and practitioners can influence the Court, namely via the submissions of the parties. Innovative ideas may stem from counsel appearing before the Strasbourg Court: if well-argued, the Court might be convinced to rely upon them.

Ideas were offered during the workshop on how authors may send references of their publications with a view to bringing such work to the Court’s attention. Academic authors who so wish may send such references via the ECHR Library (see under the rubric ‘Donations’). 

Reflections on the issues raised in the workshop

The workshop sought to initiate a conversation on how early career researchers can contribute to the development of the Law of the ECHR. Important questions emerged not only regarding writing and publishing in the field, but also access to the Court, readability, impact, comparisons with other regional systems of human rights protection – among others. 

We have been able to start a conversation around these crucial issues, but it would have been too ambitious to anticipate having all the answers at the conclusion of the workshop. We now have further questions that merit discussion, or issues to be explored further, hopefully in a subsequent edition of this workshop. 

To begin with, we could have gone further in unpacking the challenges related to writing and publishing specifically in the Law of the ECHR – as opposed to writing and publishing academic research, in general. Certainly, some challenges are common to academic research regardless of the specific field. A good article will have similar qualities regardless of the topic. The process of converting a doctoral thesis in criminal law into a monograph cannot be too dissimilar from a thesis in human rights law, including in the Law of the ECHR. And yet, we believe that there are specific challenges of that field, both ongoing and emerging in recent years. Some may be based on an overview of the field (Is the field crowded? Are there significant gaps? Can we anticipate key areas in future?); others on specific approaches by the Strasbourg Court (including its approach to absolute rights, as underlined by Mavronicola).

Conversely, we could have looked beyond the ECHR for fruitful comparisons. It is crucial to draw on the international and/or other regional human rights system(s), with a view to understanding (or criticising) the approach of the Strasbourg Court, and vice versa. As the readers of this blog will know, signs of cooperation have been identified in recent years: for example, the African Court on Human and Peoples’ Rights, the Inter-American Court of Human Rights and the European Court of Human Rights in addition to holding meetings at regular intervals, in the context of the Permanent Forum of Institutional Dialogue, jointly produce a report on recent developments. Starting from the premise that there is no regional system of human rights protection without challenges, we intend to explore further these dimensions of cooperation (and avenues for comparison) in the next edition of the workshop.

Regarding impact, while judges may differ on the volume of academic research that can be taken into account, or indeed cited in judgments or decisions (as a rule, the Court will not cite academic literature, but such literature is often cited in concurring or dissenting opinions of the individual judges), the workshop underlined the significance not only of the submissions of the parties, but also of third-party interventions. We are aware (and readers of the blog are aware, too) that a number of leading research Centres and Institutes are regularly engaging with the Strasbourg Court via third-party interventions. This is certainly an area that can be explored further in a workshop of this nature. 

A view held among many participants was that early career researchers should be actively encouraged to publish their work (in blogs, journals or edited volumes) before the completion of the thesis. This is already happening – often, some of the most insightful contributions stem from doctoral candidates. Journals are much more open these days to evaluating the quality of the work as such, regardless of career stage. This, in turn, has a number of obvious benefits, such as engaging with external audiences, building on networks, contributing to the ongoing discussions on challenges that the Court and the Convention system are facing. It would appear that individual careers also benefit from such practice. But one of the questions the workshop did not address is whether, in fact, demands and pressures on early career researchers have substantially increased in recent years and, if so, what could or should the broader academic community do to address this, especially in such a crowded field like the Law of the ECHR. 

Even though the workshop was mainly addressed to early career researchers, many of the challenges noted above should be common to anyone working in this field. The aim is to create and maintain an ongoing conversation (and, possibly, an academic network) in that field, and exchange ideas and good practice in areas of common concern, and, last but not least, encourage young researchers in their endeavours. 

Lastly, building on the various contributions of our participants and speakers in the inaugural workshop, as well as some further reflections of the team now that some time has elapsed, we very much welcome comments and suggestions on areas that could be covered in a possible second edition. In our earlier remarks, we have touched upon some of the issues that we think merit further exploration. First, questions about the field as such: are there specific challenges when  researching or publishing in the Law of the ECHR? Next, there is the comparative dimension: is there scope to increase the comparative research into regional systems of human rights protection and if so, what would be the challenges, in this respect? Then, there are questions of methodology and interdisciplinarity. In addition, we invite reflections on the community of scholars working in this field, and early career researchers in particular: given the undeniable pressures in an ever-competitive academic environment, how can we ensure that contributions by colleagues earlier in their careers are given due space and attention, without unduly impacting on their career prospects? We recognise that these are difficult questions, but we very much welcome comments and suggestions (readers should feel free to contact the authors of this post directly with their suggestions).

Acknowledgments: The authors wish to thank both the Academy for European Human Rights Protection, University of Cologne and Essex Law School, University of Essex, for organising and funding the workshop. In addition, this workshop largely materialised due to the support of the Humboldt Foundation as well. Indeed, a Senior Humboldt Fellowship enabled Nikos Vogiatzis to present the idea of the workshop to the Director of the Academy, Angelika Nußberger, and other colleagues in Cologne – and it was wholeheartedly endorsed and taken forward.

Inadmissibility Decision in S.S. and Others v. Italy: A Missed Opportunity in Migration Control Externalization

By Dr. Lena Riemer, LLM (Yale), Assistant Professor of Law at Central European University

In November 2017, a CNN investigation sent shock waves through global media: African migrants were sold in “slave markets” in Libya, sparking global outrage and renewed attention to the humanitarian crisis facing migrants in the country. This revelation came at a time when the situation in Libyan detention camps, where many migrants and asylum-seekers ended up, remained systematically inhumane. Severe violations of human rights law, including jus cogens norms such as the prohibition of torture and arbitrary killings, occurred daily as officially documented in numerous reports (e.g., UN High Commissioner for Human Rights report, A/HRC/37/46 or this report by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, (A/HRC/37/50)). Many of those who were sold or arbitrarily killed had attempted to leave Libya to Italy by boat and were pulled-back by the Libyan coast guards, in cooperation with Italian authorities under their joint Memorandum of Understanding (MoU) of February 2017.

It is against this backdrop of documented human rights that lead counsel Violeta Moreno-Lax together with the de:border // migration justice collective (de:border) and the Association for Juridical Studies on Immigration (ASGI), with support from ARCI, Yale Law School’s Lowenstein International Human Rights Clinic, and the Rosa Parks Human Rights Clinic of the University of Louvain presented the case of S.S. and Others v. Italy to the European Court of Human Rights – a case that many hoped would provide clarity on state responsibility for externalized and “contactless” migration control, also labeled “pull-back by proxy” as it was the Libyan authorities forcing the migrants back to their shores, while the Italians provided technical support, training and financing (for a detailed assessment on protection at sea and the denial of asylum, see here Moreno-Lax).

Pull-backs by Proxy: The November 2017 Incident within Externalization Policies

The case S.S. and Others v. Italy concerned a maritime operation in November 2017, when approximately 150 people fled Libya by boat seeking safety in Europe. When their vessel sent distress signals in international waters of the Central Mediterranean Sea, Italy’s maritime authorities coordinated the rescue operation but allowed Libyan forces to take operational control. The survivors alleged this constituted a systematic practice where Italy, with EU backing, effectively outsources migrant interceptions to Libya to avoid direct responsibility while knowing that migrants face torture, detention, and inhuman treatment upon return.

Of the 150 people who initially set out from Libya, 59 passengers were ultimately rescued and brought to safety in Italy, at least 20 people died before or during these events, and 47 passengers were pulled back to Libya where they faced the documented risks of torture and inhuman treatment. The applicants argued that Italy exercised jurisdiction both through territorial control of the rescue zone and personal authority over the operation, making it accountable for the resulting deaths and abuse. Specifically, they contended that the facts fell within Italy’s jurisdiction within the meaning of Article 1 of the Convention, both ratione loci and ratione personae. They further alleged that Italy had, with the consent of the European Union, established a practice of pull-backs or refoulement by-proxy, thereby placing thousands of migrants at risk of inhuman and degrading treatment while simultaneously circumventing its international and Convention obligations.

The Court’s Decision: A Narrow Interpretation of Jurisdiction

Now, after seven long years of proceedings, the European Court of Human Rights declared the application in S.S. and Others v. Italy last week inadmissible (so far, the decision is only available in French). The judges anonymously found that Italy had not exercised extraterritorial jurisdiction. The Court rejected arguments that Italy’s financial and logistical support to Libya or coordination of rescue operations established sufficient control under Article 1 ECHR. Regarding jurisdiction ratione loci, the Court found that the area in which the applicants had been intercepted, and the international waters of the Central Mediterranean Sea more generally, had not de facto been under the effective control of Italy (paras 81-83). Furthermore, the Court did not accept the applicants’ argument that the financial and logistical support provided by Italy to Libya in managing immigration amounted to the exercise of extraterritorial jurisdiction by the respondent State. On jurisdiction ratione personae, the Court observed that the captain and crew of the Libyan vessel had acted “autonomously” (para. 102) and that there was nothing to suggest that the officers of the Rome Maritime Rescue Coordination Centre (MRCC) had control over the crew of that ship or had been in a position to influence their conduct in any way. Moreover, the mere fact that the search and rescue procedure had been initiated by the Rome MRCC could not, in the Court’s view, trigger an extraterritorial jurisdictional link between the applicants and the Italian state.

The S.S. and Others v. Italy Case: Seven Years to Inadmissibility

The inadmissibility of the case is little surprising given the current climate on matters of migration in Europe but nevertheless constitutes a missed opportunity to address states’ increasing tendency to externalize migration control and to circumvent core obligations of the European Convention, such as Articles 2, 3 and 4 of the Convention and Article 4 of Protocol No. 4 that had been at the core of this proceeding. The crux of the case centered on whether jurisdiction was established according to Article 1 ECHR. This provision holds that the exercise of jurisdiction is a necessary condition for a member state to be responsible for any acts or omissions. Only in very exceptional cases can such acts outside the territories of the member states trigger jurisdiction within the meaning of Article 1 ECHR (see e.g.: ECtHR Catan and Others v. the Republic of Moldova and Russia). One of these exceptions is based on the power or control exercised over the person of the applicant (ratione personae) (see: ECtHR Banković and Others v. Belgium and Others, Medvedyev and Others v. France, Al-Skeini and Others v. the United Kingdom, Hirsi Jamaa and Others v. Italy). Hence, in order for the Strasbourg Court to have found Italy responsible for violations of the ECHR, the applicants would have needed to convince the court that they were under the continuous and exclusive de jure and de facto control of the Italian authorities.

Beyond Inadmissibility – the Broader Implications of the Decision

Before sitting down to write this contribution, I went back to my very first academic blog post on the submission of this case written in 2017 to see what I had written then on the possible outcome. Even then I had noted that “it will be a difficult task to establish such a link, but not an impossible task.” Unfortunately, since then, the political climate has become a far tougher one when it comes to protecting migrants’ rights and the glimpse of hope that I expressed then, evaporated last week. Even then in 2017, it seemed a long but necessary shot that the judges would deem the Article 1 threshold met to protect migrants’ core rights, and there was hope that there might be another Hirsi moment that would stop states from circumventing core obligations. In today’s political climate and given the Court’s restrictive jurisprudence since 2015 (e.g., Khlaifia and Others v. Italy and especially in 2020 with N.D. and N.T. and Others v. Spain), it seemed even more impossible that the Court would return to its previous more progressive approaches. This is particularly worrisome as the decision comes at a critical time when externalization trends are increasingly en vogue among ECHR member states. A prominent example is the implementation of the EU’ New Pact on Migration and Asylum with its border procedures, talks of return hubs outside the EU, or the spreading notion of exporting the “Rwanda-model” beyond Denmark and the UK. At the same time, migration has become a topic where states incrementally push for more unilateral action and less control by courts such as the ECtHR. More and more states loudly demand less “interference” with their sovereign rights to control migration, which became strikingly visible in the letter from last month in which nine EU countries, spearheaded by Italy and Denmark, called for a reinterpretation of the European Convention on Human Rights to facilitate deportations of foreign nationals convicted of crimes and demanded to be allowed to “take effective steps to counter hostile states” that use the “instrumentalization” of migrants “against” them. The public charge, the framing, the wording, and the substance constitute a clear challenge to the ECtHR’s authority and judicial independence. They also reflect the broader political climate in which migration control increasingly takes precedence over fundamental principles of human rights protection. For example, the reference to “instrumentalization” is particularly dicey as three important cases on the so-called “instrumentalization” of migration against Poland, Lithuania, and Latvia are pending at the Grand Chamber (C.O.C.G. and Others v. Lithuania, H.M.M. and Others v. Latvia and R.A. and Others v. Poland ) in which the respondent states argue that the Court needs to lower its threshold for core standards such as non-refoulement in such circumstances so that these states can effectively protect their borders with Belarus. This letter and the inadmissibility decision thus come at a crucial time where the ECtHR more than ever needs to take a strong stand to not further undermine core and fundamental principles of due process at the border.

At the same time, this decision should be seen as a moment of reflection for those engaging in strategic litigation before the ECtHR on migrants’ rights, as the current Court’s jurisprudential trajectory in these matters, raises the urgent question of whether advancing certain cases may inadvertently entrench state practices by providing judicial cover for restrictive migration control policies, as has been the case in the aftermath of N.D. and N.T. v. Spain.

The Implications: Insulating States from Accountability

Overall, this narrow interpretation of extraterritorial jurisdiction effectively insulates states from accountability under the ECHR when they delegate migration control enforcement to third parties, regardless of the predictable consequences of such arrangements, that the judges themselves acknowledge to exist (para. 110). For that reason, despite the little chance of a progressive interpretation of Article 1, the inadmissible ruling in S.S. and Others v. Italy leaves a bitter taste, particularly given the well-documented human rights violations that migrants face in Libya and the clear causal link between European policies of externalization and these violations. It is likely that states feel now even more empowered to circumvent their human rights obligations by operating through proxies, even when they provide the funding, training, and coordination that makes such operations possible. As European states continue to develop increasingly sophisticated methods of externalizing migration control, the need for clear legal standards on state responsibility becomes ever more urgent. The S.S. and Others v. Italy decision, unfortunately, fails to provide such clarity. As highlighted above, the implications of this decision extend far beyond the immediate case, potentially affecting how courts and the ECtHR evaluate the responsibility for human rights violations in an era of increasingly complex and externalized migration control mechanisms.

A very thin silver lining, though it can equally be read as an apology or a shuffling of responsibility, lies in the Court’s concluding remarks (paras. 109-113), where the judges adopt an almost apologetic tone, acknowledging that the applicants’ argument that bilateral migration agreements with third countries can indeed expose highly vulnerable individuals to serious risks of fundamental rights violations is valid. The Court further emphasized that international law regimes still apply, notably, rules on rescue at sea, refugee protection, and state responsibility. This is particularly relevant given that since 2011, the International Criminal Court has been investigating crimes in Libya, with increasing attention since 2017 to grave human rights violations against migrants and refugees in detention. While this acknowledgment may offer some rhetorical comfort, it does little to address the practical reality that these alternative legal avenues often prove inadequate, too lengthy or inaccessible for the very migrants who find themselves caught in the web of externalized migration control.

New Book on Superior Courts Network

The Council of Europe has just published an edited volume entitled The Superior Courts Network - A Community of Practice in the Service of Justice. The compilation includes contributions by former judges of the European Court of Human Rights as well as judges from several highest domestic courts across Europe, amongst others. It includes chapters on how the network came about, on what it adds to practice and on how the judges themselves experience it. This is the abstract: 

'Launched by the European Court of Human Rights in 2015, the Superior Courts Network (SCN) has matured into a vibrant, operational-level community in the service of human rights, the rule of law and justice. Ten years on and spanning 111 member courts in all 46 Council of Europe member States, the SCN remains dedicated to sharing knowledge and know-how for the mutual benefit of judiciaries across Europe and beyond.

This anniversary compilation offers unique perspectives on the Network’s genesis and evolution, as well as on its influence on domestic jurisprudence. These insights make a strong case for the added value of judicial dialogue and collaboration in the shared implementation of the European Convention on Human Rights.'