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.
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.
