On 9 July 2025, the Grand Chamber of the European Court of Human Rights (‘ECtHR’) delivered its long-awaited judgment on the merits of the Ukraine and the Netherlands v the Russian Federation. Described as an ‘excellent judgment’ attaining the ‘best possible outcome that was realistically obtainable’, the decision not only vindicates (and can vindicate) the rights of so many victims of the Russian aggression, but also serves as a ‘historical record’ of the invasion and occupation of Ukrainian territories.
This post does not offer a full case overview. It focuses instead on a specific aspect: whether and how Russia’s aggression affected the Court’s reasoning on Russia’s human rights obligations under the ECHR.
It advances two arguments.
First, it suggests that the Court’s decision to find jurisdiction over military attacks launched in areas not under Russia’s control was shaped by Russia’s blatant violation of jus ad bellum. This is evident from the factors the Court relied upon, namely the content of state interventions and the object and purpose of the ECHR.
Second, it critiques this approach, arguing that the legality of a war should not determine jurisdiction. Instead, jus ad bellum considerations should be explicitly addressed when interpreting substantive obligations, as this approach better reflects the ECHR’s object and purpose.
A.1. Intention to assume responsibility as basis for jurisdiction
The Court held that victims of Russian military attacks in areas of Ukraine not under prior occupation fell within its jurisdiction, as Russia had ‘assumed a degree of responsibility over those individuals affected by its attacks’. It found that by planning and executing these operations, directly or through “DPR” and “LPR” forces, with the aim of acquiring control over Ukrainian territory and displacing Ukraine’s authority, Russia exercised authority and control over the victims affected by its military attacks up until 16 September 2022 [para 361].
This test appears to expand the personal model of jurisdiction in Al-Skeini, and Jaloud [para. 354], where jurisdiction arose from the exercise of public powers over the victims. The decisive link, here, lies in Russia’s deliberate intention to displace Ukraine’s authority over its territory and population. That focus on intent runs through paras 358–361, with para 360 framing Russia’s objective as nothing less than ‘the destruction of Ukraine as an independent sovereign State’ through annexation and subjugation.
It is unclear whether this emphasis on Russia’s imperialistic intentions forms part of the test or simply distinguishes the case from the ‘context of chaos’ approach in Georgia v Russia II. Some readings suggest the Court may have crafted its reasoning to avoid overruling precedent while achieving consensus among the judges and limiting political backlash (see EJIL: The Podcast! Episode 36: The Scourge of War).
A.2. Jurisdiction by reference to jus ad bellum
Even if the Court sought primarily to distinguish this case from Georgia v Russia II, it is suggested that the reasoning was underpinned by Russia’s violation of jus ad bellum. This is evident from the two elements it relied upon: the Convention’s object and purpose, and the submissions of the applicant and intervening states.
(a) Emphasis on object and purpose of the Convention
The object and purpose of the Convention, and its role within the wider normative and institutional context of the Council of Europe, were emphasised by almost all participants. Ukraine [para 211], the 26 intervening states [para 157] and the Court itself [para 164] highlighted that the Council of Europe was established on the premise that ‘the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation’ [Statute of the Council of Europe, preamble]. It was further accepted that the ECHR reaffirmed these very principles, and that its purpose was ‘to realise the aims and ideals of the Council of Europe’ [para 166].
The Court, cognisant of this wider role, noted that these objectives – promoting peace based on justice and international cooperation – are of “critical importance” in interpreting the Convention. [para 179]. It characterised Russia’s full-scale invasion as a “watershed moment” and a “flagrant attack” on the Council’s fundamental values, requiring it to interpret Article 1 in a way that contributes to peace and security through the effective protection of human rights [para 349].
The fact that Russia’s invasion constituted a ‘flagrant attack’ on the Convention’s object and purpose; that the Convention aims at ‘securing justice and peace on [the European] continent’ [para 348]; and that the interpretation should reflect these aims [para 349] led the Court to its conclusions on jurisdiction.
This does not seem to be a purely factual analysis. Instead, it looks like jurisdiction was established by reference to the illegality of Russia’s conduct.
(b) Contributions of the applicant and intervening states
Both written and oral submissions reinforced this reading (for an analysis of the written submissions, see Milanovic). States agreed that the extraterritorial use of force does not automatically create jurisdictional link, but nor does international armed conflict exclude it. [para 233].
To determine whether jurisdiction was established in this case, the Court had to reconcile conflicting interests. Many states sought to steer the Court away from its ruling in Georgia v Russia II. Others, such as the UK, warned against an expansive interpretation that could extend obligations to legitimate uses of force outside the ECHR’s scope. Other states, including Spain, Latvia, Germany, Portugal, and Estonia, shared these concerns (see paras 287, 290, 294, 309).
The reconciliation of these divergent perspectives led to a focus on Russia’s unprecedented aggression. Ukraine maintained that finding jurisdiction—given Russia’s aggression against another High Contracting Party with the intent to destroy it—would not affect states’ obligations regarding legitimate uses of force, especially outside the ECHR’s legal scope. This is because only the former violates the object and purpose of the Convention. Several states endorsed this reasoning, supporting jurisdiction on the basis that Russia’s aggression was fundamentally incompatible with the Convention’s object and purpose (see Czech Republic [242]; Poland [242, 260]; Belgium [280]; Croatia [284]; Germany [289]; Portugal [289]; Netherlands [298]).
This consensus, coupled with the Court’s emphasis on peace and justice, indicates that the legality of Russia’s operation influenced the interpretation and application of Article 1. Even if the Court articulated a purely factual test, in practice it is hard to see how other legitimate uses of force, such as peacekeeping missions, peace-enforcement operation, self-defence, or even humanitarian interventions, could satisfy the criterion of intent to displace a territorial state’s governmental authority. The new basis of jurisdiction therefore appears applicable only to clear, manifest cases of aggression.
B.1. Jurisdiction in light of jus ad bellum – a dangerous precedent
The distinction between aggression and legitimate uses of force underpinning states’ contributions, and by extension the Court’s reasoning on jurisdiction, is problematic.
If jurisdiction is assessed by reference to the legality of the military operation, this creates a de facto asymmetrical application of human rights obligations. The suggestion appears to be that, in light of the Convention’s object and purpose, states committing aggression must owe human rights obligations, effectively as a ‘punishment’, so their actions can be scrutinised. By contrast, states using force for legitimate purposes would be shielded from such obligations, and their conduct left unscrutinised.
For instance, if Banković were to come before the Court again with the same facts, the outcome would likely remain unchanged under the new test. However, if the same facts occurred in the context of a war of aggression, it would be more arguable that victims fell within the aggressor’s jurisdiction
This reasoning is problematic. Entitlement to human rights protections cannot depend on the legality of the military operation. Both human rights and international humanitarian law (‘IHL’) violations occur, regardless of the legality or legitimacy of a party’s use of force under jus ad bellum. That is the whole point of IHL, and it is why the Court’s scrutiny of the state conduct on the battlefield is necessary in all cases.
B.2. Substantive obligations in light of jus ad bellum – the orthodox view
The lawfulness of a military operation under jus ad bellum is not irrelevant to human rights. On the contrary, it can and should influence the interpretation and application of obligations such as the right to life (see: Haque, Shrivastava; see also: Lieblich ).
In this case, the Court was not invited to apply jus ad bellum when interpreting substantive obligations, as Ukraine limited its claims [para 217] to violations arising from non-compliance with IHL (on this point, see Jackson and Akande). When asked why it had not relied on General Comment 36 and the Human Rights Committee’s proposition that ‘acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant’, Ukraine agreed with that interpretation and explained the exclusion of claims concerning soldiers during active hostilities because of the ‘context of chaos’ ruling in Georgia v Russia II.
However, the Court’s and states’ emphasis on ‘peace’ and ‘justice’ suggests a crucial difference between human rights law and IHL: the former does not maintain the latter’s neutrality towards the legality of war (on this point, see Schabas). This distinction should inform the analysis of human rights obligations in inter-state conflicts. Reaching different conclusions on whether states have violated, for instance, their right to life obligations, based on their position under jus ad bellum is not an asymmetrical application of human rights law. It is a symmetrical application that leads to distinct results because of their different positions under the law (jus ad bellum).
If the Court is indeed a guardian of peace and justice, these aims require attributing responsibility for breaches of peace. ‘Peace,’ especially when paired with ‘justice,’ is not a neutral term. Besides, the Council of Ministers has already found that Russia’s ‘aggression’ – not Ukraine’s defensive actions – were a ‘flagrant attack’ on the European system. What distinguished the two states at that point was not their compliance with IHL, but with jus ad bellum.
Recognising this would extend protection beyond the usual human rights–IHL interplay and acknowledge that everyone affected by aggression is a victim. It would be absurd to suggest that an aggressive war causing thousands of soldier deaths as compliant with human rights obligations, simply because no civilians were harmed.
Conclusion
The Ukraine and the Netherlands v the Russian Federation case is undoubtedly a landmark decision, but also a missed opportunity to explicitly engage with the relationship between jus ad bellum and human rights law.
In inter-state conflicts, jus ad bellum rules are relevant rules applicable between the parties and should shape how human rights obligations are interpreted. This interpretative interaction, however, should inform the substantive rights and not jurisdiction. Limiting human rights protections to an in-compliance-with-IHL analysis undermines the significance of the underlying values based on which the ECHR is developed. ‘Peace’ and ‘justice’ have legal content if they expand ECHR’s protection to all individuals affected.
