The Strasbourg Court Opines On Russian Actions In Ukraine

Three weeks ago, in an outcome with which even its sternest critics are unlikely to disagree, the European Court of Human Rights ("the Strasbourg Court" / "the Court") handed down a landmark ruling in Netherlands and Ukraine v. Russia, to the effect that Russia had violated its obligations under the European Convention on Human Rights ("the ECHR" / "the Convention"), by having committed widespread and flagrant abuses of human rights in Ukraine over a period of more than eight years. Moreover, the Court found that Russia was responsible for the downing of flight MH17 and had violated the right to life of the crash victims.

An underlying and fundamental part of making such findings was the need for the Court to determine whether Russia's obligations under Article 1 of the Convention were engaged. Article 1 provides:

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."(emphasis added)

Perhaps unsurprisingly, in light of the subject matter, the Court took an expansive approach to the interpretation of Article 1 jurisdiction and deemed Russia responsible for all incidents involving the use of kinetic force and conduct of hostilities in 2014 and 2022 that were at issue in the case.

We consider here how the Court reached this assessment on Article 1 in light of the existing views on the territorial application of the ECHR, and particularly considering the submissions made by the uniquely large body of 26 intervening Council of Europe member states. This assessment promises to have long-term implications for how states are constrained to behave in light of potential findings of human rights breaches, in addition to having to act compatibly with international humanitarian law ("IHL"), and how they may be treated by courts of international jurisdiction in the future.

Background

The Court had to consider whether the scope of Article 1 obligations applied to all acts and omissions of the Russian armed forces and armed separatists, which the Court found to be de jure and / or de facto organs of the Russian state and whose actions were attributable to Russia;

in the Donetsk People's Republic (the "DPR") and the Lugansk People's Republic (the "LPR"), so called "separatist regions";
in Russia; and
elsewhere in Ukraine (i.e. areas not including the DPR and LPR).

In its previous admissibility decision for the proceedings, the Court had already found that:

Article 1 applied to actions in the DPR and LPR from 11 May 2014 up to the date of the admissibility hearing on 26 January 2022;
and the downing of flight MH17 occurred within the airspace above territory over which Russia exercised "effective control" and thus was within its jurisdiction under Article 1.

The case ultimately revolved around Russian obligations to secure Convention rights in three areas/ circumstances:

In areas under separatist control from 26 January 2022 (the date of the admissibility hearing) to 16 September 2022, when Russia ceased to be a party to the Convention;
In relation to alleged acts and omissions raised in a separate, joined application to proceedings (no. 11055/22), which included allegations of "massive human rights violations being committed by Russian troops in the course of military aggression against the sovereign territory of Ukraine" said to have occurred both territorially, in Russia, and extra-territorially, in Ukraine; and
In respect of military attacks (namely bombing and shelling) in Ukraine.

If such actions by Russian forces gave rise to breaches of Convention rights within Russia's jurisdiction, they were justiciable before the Strasbourg Court. If not, they were not.

It was in the third situation that divergences among the views of the intervening states became apparent. While the UK was supportive of Ukraine, its perspective differed on what properly might be justiciable before the Strasbourg Court. That reflected, perhaps, an appreciation of how an expansive interpretation of jurisdiction (in a physical sense) in which obligations to secure Convention rights exist may add additional obligations on a state engaged in warfare, beyond those arising under IHL. Further – one speculates, the real fear – that it might even create obligations to secure Convention rights that might prove impossible to meet.

The effect of existing Strasbourg case law

The submissions of the parties (including intervening parties and noting that Russia later rejected the Court's jurisdiction and eschewed participation) were generally concerned with whether the Strasbourg Court's existing case law was sufficient to determine the present issues, or whether an expansion of principles was required. All 26 intervening states (formally "Contracting Parties" under the Convention) started on the following premises:

Acts of Contracting Parties outside their own territory "can only in exceptional circumstances amount to the exercise by them of their jurisdiction within the meaning of Article 1". Two main criteria had been developed to determine whether such exceptional circumstances existed, both requiring a fact-based assessment of:
1. effective control over an area (spatial jurisdiction); and/or
2. state agent authority and control over individuals (personal jurisdiction).
Effective control over an area could be fulfilled either because of direct control by the Contracting Party over an area or because of indirect control through a subordinate local administration, assessed primarily by the strength of a state's military presence. All the intervenor states believed that this first criterion was satisfied in relation to events that took place in all areas under effective control by Russian forces, including those areas which were subsequently recovered by Ukrainian forces.
Jurisdiction through state agent authority and control could be established in three ways:
1. through the activities of diplomatic and consular agents exerting authority and control;
2. by exercising public powers through the consent, invitation, or acquiescence of the host government; or
3. in certain circumstances, by the use of force by a state's agents operating outside its territory. The decisive criterion is the exercise of physical power and control over the person in question, e.g. in an international armed conflict, if an individual was taken into the custody of state agents this could give rise to Article 1 Jurisdiction, as could situations where state officials operating extraterritorially exercised control over buildings, aircrafts or ships in which individuals were held.

In the context of military operations, the Court had noted previously that "the very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos" excludes the concept of effective control over an area and thereby state agent authority and control – the so-called "Georgia v. Russia (II) exclusion". However, the admissibility decision, in finding that the downing of flight MH17 within the airspace under separatist control did suffice for Article 1 jurisdiction, had clarified that this exclusion did not generally exclude jurisdiction in an international armed conflict and that jurisdiction could not be excluded simply on the basis that it concerned "military operations in the active phase of hostilities".

The (effectively agreed) relevant question, therefore, was whether spatial or personal jurisdiction existed based on the factual circumstances of the acts alleged to fall within a Contracting Party's Article 1 jurisdiction.

Ukraine's position

As expected, Ukraine proposed an expansive scope for the ECHR's protection of human rights. It argued that Article 1 jurisdiction should be interpreted in reference to the "legal space" of the Council of Europe, extending Article 1's jurisdiction beyond purely its territorial jurisdiction. Ukraine contended that Article 1 should apply whenever a Convention state perpetrates violations on the territory of another Convention State which it could not perpetrate on its own territory.

This argument rested on the Convention being an instrument of European public order and collective security. It should not be interpreted so as to create a vacuum within Council of Europe legal space. Further, Article 1 could not be interpreted in a way that undermines the ECHR's effectiveness as a guardian of human rights and as a guarantor of peace, stability and the rule of law in Europe. Several intervening states echoed this reasoning, drawing attention to the special nature of cases involving military action within the sovereign territory of Council of Europe member states.

In the alternative, it was also argued that the concept of legal space justified a "generous interpretation of established concepts of State agent authority, effective control, and jurisdiction", such that Article 1 was satisfied and that in any event, there was sufficient jurisdictional connection under existing case law. This included Russia's effective control of parts of Ukrainian territory, the exercise of state agent authority, and the Court's jurisdiction over procedural violations, being war crimes committed by the Russian military.

Russia's position

Russia declined to participate in the proceedings on the merits, and the Court referred to its earlier submissions during the admissibility phase. Russia had argued that applying the Convention to situations of armed conflict would irreconcilably stretch it into legal terrain governed by IHL, which was outside the Court's substantive jurisdiction.

There, Russia, again as might be expected, opposed the Court's expansion of the concept of jurisdiction to cover territory outside the geographical borders of a Contracting State on effective control. Further, "without making reference to Articles 15 and 56 of the Convention, [Russia] asserted that the Convention contained a provision for derogation in the context of conflict and allowed States to decide whether it should apply in foreign dependent territories that they controlled. This latter provision was totally inconsistent with the Court's imposition of the Convention in relation to territory". Russia also contested the "authenticity and reliability" of the evidence relied upon by Ukraine to show jurisdiction.

Key concerns from intervening governments

The submissions of the intervening governments varied, reflecting a continuum of views. Some states expressed a perceived need for legal protection given their proximity, especially geographically, to the dangers of aggression from other states – although, one observes, legal protection of ECHR rights alone seems unlikely to be a significant deterrent to (unlawful) armed action from others. Concerns were also expressed by some about the possibility of future proceedings against those states who are perhaps more likely to have the political will and capability to intervene in armed conflicts within ECHR states.

The Netherlands (a party to the proceedings), Belgium, Lithuania, Slovakia, Spain, and (in part) Poland took an expansive view of the case law and submitted that "it was clear that extraterritorial jurisdiction was not excluded in situations of international armed conflict and that the Court's case law was replete with examples of States being held responsible which for acts had occurred in the context of an international armed conflict taking place outside their own sovereign borders". In this, they were supported by Latvia (Article 1 had evolved "with a view to the effective protection of human rights in a largely regional context"). Poland argued: "Article 1 should not be interpreted in a way that would make the Convention and the objectives of the Council of Europe ineffective in the face of unlawful aggression" and that there was "a need to further develop the Court's case-law in response to a glaring example of aggression in the Convention legal space".

The Czech Republic, Lithuania and (also) Poland took the view that the Court's finding in the admissibility decision that there had been no "context of chaos" in respect of the downing of flight MH17 should be applied to "other military operations conducted with similar or analogous modus operandi, such as those conducted against civilian objects using missile guidance or other target pointing technologies." Should the Court decide otherwise, in any event there were circumstances that excluded the application of the "chaos" concept, including attacks against civilians, systematic targeting of residential areas, use of weapons prohibited under international war, and actions which resulted in destruction which could not be considered as "usual collateral and unavoidable consequences of the military necessity realised in conditions of chaos".

They also took the view that in the context of what they described as a "full scale war of aggression", a finding that no Article 1 jurisdiction applied would result "in a vacuum in the system of human-rights protection within the legal space of the Convention". They submitted (not without some weight) that "it would be paradoxical if the Court were able to find jurisdiction in respect of the actions of a state's agents on the territory of another state party which cost the life of one person, but was prevented from attributing such jurisdiction over the actions of the entire armed forces on the territory of another state Party, which had cost the lives of thousands."

Putting the case at its most obvious, Belgium, the Czech Republic and Croatia suggested that the guiding principle should be that "within the Convention legal space, the use of armed force by a High Contracting Party, including bombing and shelling with the aim of removing the effective control of another High Contracting Party over its own territory, should not result in a situation where individuals whose human rights had been violated as a direct result of such use of armed force were deprived of the protection of the Convention."

The UK took a more conservative view, submitting that there was "no need in this case for the principled approach of the Court to be expanded in order to reach the findings of serious violation of the Convention that all the intervening States invited the Court to reach" and that "there were circumstances in which moving to a conception of jurisdiction whereby everything within Convention legal space was held to be within Article 1 jurisdiction would cause, or risk causing, significant issues in relation to lawful and realistic scenarios which the Contracting States should be concerned about."

The UK asserted that existing case law was sufficient to conclude on the present facts that "Article 1 jurisdiction arose in respect of most categories of violation committed by Russia and described in the present case." Summarising the extant case law, the UK submitted that "Article 1 jurisdiction ordinarily did not arise in respect of death, injury and damage to property arising from use of military force in the course of active conflict, even if an attack was directed at an unlawful target... or was otherwise alleged to be in breach of international humanitarian law." The UK further noted that the case law concerning state agent authority and control would not include military action seeking to conquer territory and would have no application in such a context. The UK took the view that no legal lacuna or vacuum would arise if the current case law principles were not expanded, as the conduct of military operations was regulated by IHL.

Given the likelihood of the Court confirming an expanded Article 1 jurisdiction, France's submissions appeared to attempt to preserve some space for future military operations. France's submissions noted - as was generally accepted by other intervening states - that jurisdictional issues were matters for factual assessment in the circumstances of each case, noting that the Court had to also consider whether the Georgia v. Russia (II) exclusion would apply, which would require careful examination. In particular, France noted that in the context of an international armed conflict, shelling and bombing were characteristic of "armed confrontation and fighting between enemy military forces seeking to establish control over an area", and that it "was therefore not possible to find jurisdiction in such a situation, without prejudice to the findings of the Court in the very particular case of the downing of flight MH17". In this France was supported by the Nordic states (Denmark, Finland, Iceland, Norway and Sweden), which together reiterated that an assessment of Article 1 jurisdiction required a concrete assessment of the facts in each case and indicated that to their knowledge, the use of force abroad by state agents had not as such, without further qualifications, been found sufficient to give rise to jurisdiction, and that it was "important to distinguish the question of jurisdiction under Article 1 from that of compatibility of State actions with international law."

Tellingly, a number of intervening States (Estonia, the UK, Germany, Portugal, Latvia and Spain) raised concerns over the ability of Contracting Parties to ascertain "the extent of their obligations under the Convention in situations of legitimate armed conflict (e.g. collective self-defence and peacekeeping operations)" should there be an expansion to the territorial nature of jurisdiction under Article 1.

The Court's assessment and its effect

The Court concluded that the Article 1 jurisdiction of Russia had been established in relation to all three "live issues": (1) in areas under separatist control; (2) in respect of complaints under application 110555/22; and (3) in relation to military attacks in Ukraine, outside of separatist regions.

While the first and second findings were relatively straightforward, the Court somewhat traversed new ground in the third in finding that territorial jurisdiction applied in an area of armed conflict, or "contexts of chaos". The Court concluded that Russia assumed a degree of responsibility over individuals affected by its military attacks across Ukrainian territory, carried out with a view to acquiring and retaining effective control over areas of the territory, and thereby removing Ukraine's effective control over those areas. As such, Russia exercised authority and control over individuals affected by its military attacks up until 16 September 2022. Russia had an obligation pursuant to Article 1 to secure to individuals affected by its military attacks the Convention rights and freedoms relevant to their situation.

The Court was careful in constructing its third finding, broadening, as it necessarily does, the scope of Article 1 to include extra-territorial jurisdiction. The Court indicated that this issue concerned the most exceptional of circumstances, as Russia's objectives "were no less than the destruction of Ukraine as an independent sovereign State", and had grave consequences for Europe, as Russia's objectives were "wholly at odds with the Council of Europe peace project based on democracy, human rights and the rule of law."

Further, the Court distinguished - and had to - these proceedings from Georgia v Russia (II). Here, the Russian military carried out "extensive, strategically planned military attacks" across Ukrainian territory between 2014 and 2022, with the deliberate intention and indisputable effect of assuming authority and control, albeit falling short of effective control, over areas, infrastructure and people in Ukraine. The Court deemed this careful planning and execution to be at odds with any "notion of chaos", but preserved the Georgia v Russia (II) principle to allow it to be relied on in future proceedings.

The Court's preservation of Georgia v Russia (II), and its indication that only the most 'exceptional' of armed conflicts fall within Article 1 jurisdiction, are possible attempts to placate the concerns of the UK, France, and others who may feel the need to intervene in armed conflicts within the territory of the 46 signatory states to the ECHR, (now excluding Russia and Belarus), consistent with jus ad bellum permitted in IHL. The judgment's carefully constructed language, emphasising of European values and exceptionality of the circumstances, imply that there is some room to take military action without giving rise to obligations to secure Convention rights on the basis of a jurisdictional finding under Article 1.

But how far those limits on a Convention signatory state's obligations extend in reality is now even less certain than it was before. Whilst only "exceptional" armed conflicts will create such a jurisdictional obligation, one is left with the difficult question of what might, in fact, comprise exceptional armed conflicts. The Court's judgment implies motive is a key element, as might be the military (or other) outcome or effect intended or, perhaps, arrived at whatever the motive or intention or plans. Nonetheless, what might be "exceptional" remains troublingly imprecise.

Whilst most of them surely are already imbued in the thinking and language of human rights, European political leaders and military planners (and their lawyers) must now not only consider IHL (as the prime operative code of law with which they must comply), but give ever more detailed consideration to the extent of the obligation to give effect to Convention rights even in areas which they do not physically control, and in relation to which information is perhaps lacking. They must calculate whether there are good arguments to suggest the application of armed force is not "exceptional" in terms of the Strasbourg Court: a rather difficult exercise where all armed conflicts are surely exceptional (for a Convention state).

On any view, and perhaps correctly, the effect of this judgment is to require ever more detailed consideration of the applicability and protection of Convention rights by those contemplating military action in Convention signatory states. To the extent it ever did in recent years, the analysis does not stop with: "do we comply with IHL?"

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.