The Just Security Podcast

Unpacking the European Court of Human Rights Decision on Russia’s Violations in Ukraine

• Just Security • Season 1 • Episode 114

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Today, the European Court of Human Rights (ECHR) delivered its highly anticipated judgement in the case of Ukraine and the Netherlands v. Russia–a watershed moment in international human rights law. 

In this episode, Just Security Executive Editor and professor at American University Washington College of Law Rebecca Hamilton, and Just Security editorial board member and professor of International Law at the Fletcher School of Law & Diplomacy Tom Dannenbaum join Just Security co-editor-in-chief Ryan Goodman to break down the Court’s reasoning, the legal standards applied, and the potential ramifications for the ongoing conflict and the future of international justice. 

Show Note: 

Ryan Goodman: Today the Grand Chamber of the European Court of Human Rights handed down its long-awaited judgment in the case of the Netherlands and Ukraine, or Ukraine and Netherlands v. Russia. It's a landmark decision in international human rights law, international humanitarian law, and international law writ large, in which the Grand Chamber of the Court finds that Russia is responsible for systemic and systematic human rights violations in the conflict with Ukraine. So big questions are: what standards did the Court apply in determining that Russia had responsibility for human rights abuses in Donetsk and Luhansk and elsewhere across the country of Ukraine, and how might this judgment influence the ongoing conflict or the broader landscape of international justice? 

This is Just Security's podcast. I'm your host for this episode, Ryan Goodman. I'm Co-Editor-in-Chief of Just Security. Joining me today are two eminent experts to help me understand and help you understand and scrutinize the Court's decision, and they are Rebecca Hamilton and Tom Dannenbaum. Rebecca Hamilton is Executive Editor of Just Security and professor of law at American University, Washington College of Law. Her scholarship spans national security law, international law, media, and she brings deep experience from her work prosecuting genocide and war crimes at the International Criminal Court. Tom Dannenbaum is also a member of the Just Security editorial board. He's an associate professor at international law at The Fletcher School of Law and Diplomacy, where he also serves as co-director of the Center for International Law and governance, and Tom's scholarship focuses on the law of armed conflict, use of force, and international criminal law. I could not think of two better experts to have this conversation with. 

I thought to start with two caveats. One, a caveat about our conversation, and then a caveat about the Grand Chambers’ opinion. The caveat about our conversation is, as I mentioned at the outset, the Court just issued its opinion today. That's just over five hours ago, and the opinion is around 500 pages, so we have had as much time as possible to digest parts of the opinion, have conversations with each other beforehand, but that's almost an impossible task. So this is really to focus in on the highlights of the factual findings and the law and the analysis and the politics behind the opinion. Second caveat is that the Court's opinion, for those who don't know, is time bound, and they make this point in the Grand Chamber's opinion as well. It ends on September 16, 2022. All of the facts and allegations end at that point. So if anybody who's listening or watching is thinking about other alleged Russian war crimes and the like post-September 2022, that was not within the scope of the Court's analysis. That's because Russia withdrew as a Party to the European Convention on Human Rights, and its withdrawal became effective on that date. 

So let me just start out with, as a moderator, a skeptic's question. So the skeptic’s question would be something like this, and then Tom or Bec, whoever would like to start with it. Why does it matter? Admittedly, it's a very strong rebuke, most of the findings as a unanimous basis from the Grand Chamber against Russia. But so what? Now what? Especially since Russia is not a Party to the Convention anymore, what are the implications, if any? The Court doesn't have a police force that will back it up. So what, what's the import in your minds as to the significance of this opinion?

Rebecca Hamilton: I'm happy to jump in. So, you, look, you're right. We know that Russia is not going to accept when, subsequently, the just satisfaction decisions come down. We don't have those yet to say exactly what it will be, but we have every reason to expect that Russia will ignore it anyway. And so we have this, you know, perennial international law question: if we don't have the enforcement mechanism, what does it mean? Let me start by saying, as always, if our perspective is the victims and survivors in Ukraine, this decision matters a lot. Now it is not only about the very detailed factual legal conclusions that the Court makes, but it's also the narrative that the Court tells in in this decision, and in particular, their recognition that all of this began in 2014, not in 2022, and the Court is is very specific about laying out that what we saw after the invasion in 2022 was simply a manifestation of the long-term strategic planning that Russia had been doing on this since 2014. 

And for all of the Ukrainian civil society groups that I've spoken to over the past decade, this is really important to tell that narrative accurately, because there's a sense that so many of the other countries in the world and the Western media only started paying attention to what was happening in terms of Russia's aggression in 2022. So this decision is a great rebuke and recalibration of what that narrative should be. The other piece of this, and I think we're going to see this play out over time, is that Ukraine has been exceptionally skilled, I guess, at creating an entire sort of web of justice around the claims that victims have coming out of this conflict. So with the register of damages, with the special tribunal, we've got action at all the international courts on the situation, and so the findings that the Court makes, even if we're not going to get direct implementation of this decision, they are relevant for other courts, as Ukrainians continue to pursue justice in other forum.

Tom Dannenbaum: Yeah, the only thing I would add to that is maybe to just specify some of what Bec was saying there. So one component is that there's the expressive and recognition aspect to this, that it's expressing a recognition of the violations that victims have suffered. It also is setting a historical record, which in a moment of escalating mis- and disinformation is itself valuable, that there's a comprehensive laying out of the facts and articulation of how the law applies to those facts that is itself important, not just today, but also going forward in terms of sustaining the understanding of the truth of what's happened in this context. And I think it also provides the foundation both for the next stages that suggested within the European Convention system in this case, namely the process towards just satisfaction, but that's also explicitly in the judgment, articulated alongside these other mechanisms that Bec has just identified, the register for damages, the future Compensation Commission and so on, and in fact, the reason that they adjourned the decision with respect to just satisfaction was in part because the Court determined that it needed to have due regard for those other processes.

So, there's an understanding that these processes are going to work together, and therefore this has potential implications for those other processes. And of course, also potentially for how we think about questions of seizing frozen assets and so on, and this lays some of the predicate conditions, although there are other legal questions that would arise in that particular process. And then there are additionally nine and a half thousand individual cases in relation to this particular conflict, and this lays out some of the foundations for how those individual cases will be brought forward. And that's all just with respect to the significance of this case within the conflict. The case also deals with a whole array of critical legal questions that are going to reverberate far beyond this specific case, across the jurisprudence of the European Court of Human Rights, but also outside of that particular framework. And so it has significant jurisprudentially beyond just this particular case,

Ryan: Right and then that's a great segue to what I was thinking of is starting out with one of those jurisprudential questions, which is almost the threshold question of, does the Court have jurisdiction, or to what degree does the Court believe that certain human rights violations apply extraterritorially outside of a state and during an armed conflict? So that's one of the most anticipated parts of the judgment, is how the Court would grapple with this. And I want to just put a couple pieces on the board, and then have you all just reflect on them. So one of the reasons this was so highly anticipated is that four years ago, four and a half years ago, the Grand Chamber issued an opinion in which it very much narrowed the scope of the application of jurisdiction and human rights violations in those contexts, state acting extraterritorially in an armed conflict. And the big question was going to be well then, based on how much the Court narrowed it in the past, would they be able to do it with respect to Russia's actions in Ukraine? 

So, let me just lay out a few pieces. First, what we're talking about is Article 1 of the European Convention on Human Rights. I'm just going to read it as a reminder to folks, or as a maybe first time somebody has heard this. So it says, quote, very short sentence, “The high contracting Parties shall secure to everyone in their jurisdiction the rights and freedoms defined in Section One of this convention.” So the question is, who are the people within their jurisdiction? The Court has in the past applied the European Convention on Human Rights when a state is acting abroad and in certain armed conflict situations. But January 2021, the Grand Chamber, in an opinion with Russia's activity inside of Georgia, suggested that during the active phase of armed hostilities, during the active phase, that at minimum, the right to life would be substantially narrowed in its ability for the Court to even adjudicate those questions, almost suggesting that they were beyond the scope of what the Court could reach, with some minor exceptions for like the obligation to investigate human rights violations. 

So, the Court's language was to the effect that in the Georgia case, Georgia v. Russia (II), that I'll read actually the exact language. They said, “The very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos, not only means there's no effective control over an area as indicated above, but also excludes any form of state agent, authority and control over individuals.” So the chaos in the active phase of hostilities is one in which there is no real state jurisdiction over people in that situation. But today, the Court seems to suggest something that the question I would put to the both of you, is, is this a new test? What remains of Georgia v. Russia (II)? They seem to say that there's a new test, in my mind, it seems to be a new test of, well, if the state is up, if the relevant state, here Russia, is operating with the intent “to acquire and retain effective control” over another sovereign state, then that's different, and that maybe is the distinguishing factor. So how do you all read what the Court is doing today, and which was one of the most anticipated parts of the judgment?

Rebecca: Thanks for the great setup, Ryan. So, yes, I don't know that—I would love to say we've got a wholly new test, because I think what the Court set out in Georgia v. Russia (II) was a disaster, and I would love to have just seen that outright overruled. Instead I think I see it more as a further progression and articulation of what they started doing in the admissibility phase of this case. But I just want to back up for a minute, because I think it may not be clear to folks that are not sort of in the weeds of the European Court in particular, that the Court has, throughout its jurisprudence in this space, looked at this question of whether there is Article 1 jurisdiction through two sort of prongs or two pathways. One they call the spatial jurisdiction, and that is where there is effective control over the territory. The other is what they call personal jurisdiction, and that is whether the state agent has, the buzzwords are control, authority and control over the victim, right? 

Now, what the Court had done in Georgia v. Russia (II) was say, as you laid out, in this “context of chaos,” that you didn't have either one of those bases for jurisdiction. You didn't have spatial jurisdiction because there wasn't effective control. It was just too hard to figure out who was in control, and that you also didn't have personal jurisdiction. That's the language that you quoted for us already. What they're doing in this case is saying, well, even if we don't get to complete effective control, which is the spatial prong, in this particular context, where we have an aggressor that has done this long-term strategic planning in order to control and retain control of that territory, even if they haven't always succeeded in getting complete effective control, even if we can't be confident that we have spatial jurisdiction, we can say that we have personal jurisdiction. We can say in this context, there is enough authority and control by Russian actors or actors that are acting on behalf of Russia, that there is Article 1 jurisdiction for Russia. Now that is different from what the Court did in Georgia v. Russia. In that case, Georgia v. Russia (II), in that case, they said “context of chaos,” means we can't get to jurisdiction either way. Here, they're saying “context of chaos,” which is sort of code for international armed conflict extraterritorially, doesn't preclude us looking at whether there's still personal jurisdiction in a case where we have an aggressor that is engaged in long-term strategic planning in order to control and retain control over territory.

Tom: Yeah, I think that's, that's all correct, but it's a remarkable distinction to try to draw, because that doesn't really bear at all on the level of control or the level of chaos and the difficulty of discerning facts, and it's that chaos. So the components that purportedly underpinned the Georgia v. Russia (II) decision were those two issues that you don't have either their spatial or personal control, as Bec very nicely outlined, and that it was, as a corollary to that, difficult to ascertain the facts. These things were both invoked, and both of those things is equally true, regardless of what the ultimate goal is, and regardless of how we characterize the overall strategic nature of a particular belligerent party's engagement in the armed conflict. And so it seems to be a fundamental departure from Georgia v. Russia (II), even though it doesn't explicitly say that Georgia v. Russia (II) is now overruled or incorrect, although it does say that this was a clear watershed moment that we must reflect anew on our jurisprudence regarding national territoriality. So, there's a hint that there's something different going on here. There's not an explicit revocation of that previous position, but the new position doesn't seem to comport with the underlying principles of that original position. 

And there's another thing that I think is worth bearing in mind here, which is that Georgia v. Russia (II), was followed relatively shortly by a chamber judgment in Shavlokhova, where they were looking at Georgian activity during the conduct of hostilities, where it wasn't even extraterritorial, because it was on Georgian territory and yet, there, the conduct of hostilities was also deemed to preclude Georgia's effective exercise of jurisdiction under Article 1, and Georgia, fairly clearly, is trying to retake and retain that territory. It's its own territory. So then the determination seems to actually not be to do with whether the goal is to take and hold the territory and therefore be in a posture of ultimate authority and control, but rather whether that is a legitimate objective. In other words, whether you're trying to take your own territory, whether you're trying to aggress and take somebody else's territory. That doesn't seem like a particularly stable assessment for this determination of Article 1, which is really just about whether the human rights obligations apply in the first place. And so there's a fundamental incoherence here, I think, across the Court's jurisprudence, and it's not even an incoherence that's just limited to these two cases, Georgia v. Russia (II), and now this Ukraine and the Netherlands v. Russia. It's really an incoherence that runs throughout the entire line of jurisprudence on the personal control aspect in particular. 

So, the spatial control aspect has been relatively stable, but thinking about what personal control is has been difficult for the Court across numerous cases now for decades, where it's thinking about, is it primarily custodial, or is it something slightly beyond custodial, such that if it's proximate and specific and isolated and an exercise of force in that kind of context, such as the assassination of Litvinenko in the United Kingdom by Russian agents, then maybe we can see personal control there, even though it's not custodial. Those proximity and specificity and isolation components were never particularly stable, and they weren't very difficult to explain normatively. And so in a sense, this is a continuation of a relatively incoherent line of jurisprudence in terms of how we think about this particular issue of personal control. 

And here it is by far the broadest that we've seen across any of those cases in terms of finding personal control, where we're talking about shelling across into territory that's controlled by the adversary and activity and the conduct of hostilities that isn't isolated, isn't limited and specific and isn't proximate, but is now instead underpinned as generating human rights obligations by the fact of this strategic objective, which is almost exactly the opposite of being specific, isolated, and proximate. So it suddenly expands the scope on this particular issue, but there are all sorts of open questions regarding, how much is this contingent on the specific issue of aggression? How much is it really distinctive to the fact that Ukraine has generated a unique response within the Council of Europe? What kind of implications does this have for situations outside of Ukraine and in particular situations outside the Council of Europe altogether, where forces used extraterritorially, or where it's less straightforwardly about territorial aggrandizement, yet may nonetheless be aggressive in a violation of prohibition and use of force and so on? And there's a whole set of questions that aren't resolved here and then now left open.

Ryan: So, I want to turn to why that might be the case, like what might be lurking behind the Court’s slicing the question in the way that it does? And just to add one thought, I mean, in my mind, it is almost like an essential component of whatever is the, not only modified test or new test, it seems to be an essential component, this idea of having the view or the intent to acquire and retain territory under one's effective control, and other states’ effective control, in the spatial context. And then, Tom, you were getting at this a bit already, which is, it seems to put on one side of the equation certain kinds of conflicts, like Russia's aggression into Ukraine, but would potentially distinguish other types of conflicts. And here's the question, and another predicate to the question. The predicate to the question is, this is not just a judgment that goes against Russia, it also goes against France and UK's presentation of their view of the law to the Grand Chamber. And the Grand Chamber’s very good about articulating what their positions were, but their positions, I think, were ones in which they would not have the Court step away from Georgia v. Russia (II), they would still have the Court say that does not have jurisdiction when it's like a shelling campaign, or something like a bombing campaign, shelling and the like. 

And so, the Court is, one might imagine, worried about big players like France and the UK as Parties to the Convention. And lo and behold, this kind of distinction is one of them in which, well, as long as those states are not acting in forms of aggression but using force abroad, maybe it doesn't apply to them. And you would think the UK and France are not going to engage in, or much less likely, to engage in military campaigns of aggression. So it's a way in which they kind of slice it so that it does not necessarily interfere with the national interests of some of the state parties. And it's something that Marko Milanovic, one of our colleagues at EJIL: Talk was, I think, prescient in anticipating this might be the way in which the Court comes out. Some new kind of modification or test that's different than Georgia v. Russia (II), and is carved out in an unsatisfying double standards-y the kind of way where it does apply to Russia and Ukraine, but doesn't apply to these other conflicts.

Is that the way you all see it? And Bec, I also want to just invite you to talk about something that we talked about a little bit before the episode, which is other ways in which the Court is framing the issue at a broad level that might also be playing with these kinds of realpolitik interests that it has at stake.

Rebecca: Thanks, Ryan. So I mean, I agree with your sort of conjuncture that what is going on behind this very unstable and normatively unsatisfying standard that the Court is trying to carve out here is trying to placate concerns that that UK and France in particular had and their wishes to just keep the Court out of international armed conflict, extraterritorial adventures in general. And I think it's not—interestingly, it's not simply, the carve out is not aggression, per se. It is this language of retaining control, the effort to retain control. And I think that is even more clearly signaling to a UK or France, who are much less likely—we can debate whether they want to engage in a war of aggression anywhere, but the idea that they want to retain control over a foreign territory, the signal is probably you guys don't need to worry if you're pursuing anything short of that long-term strategic planning to retain control over a foreign territory, then you're still safe. You know, that's it. 

So, that is, you know, it reeks of the double standard. It's everything that Marko warned about, and it's deeply frustrating. In a glass half full sense, though, I do want to say it wouldn't have been, but for the sort of unique position that Ukraine has managed to carve out in this space, it wouldn't have been totally surprising to me that against the backdrop of our specific, isolated, and proximate jurisprudence that the Court has, that they wouldn't have gone and said, “Yes, shelling, we're in the zone here.” And so I think you know, the fact that we've effectively, with this decision, thrown out those caveats around specific, isolated, and proximate is a progressive development—sorry, I've lost my light—a progressive development in the law in this space in general. And I wouldn't be surprised that there are countries that are looking at this with real concern. 

Where I do think, coming to the second part of your question that we were discussing earlier, where I see the Court doing the biggest work on what might we might call the kind of placating other political interests space is really throughout the opinion, but in particular in the Introduction, it does so much work to emphasize that this is a particular case that cuts to the heart of peace in Europe, and that the object and purpose of this convention is about securing peace in Europe. It's not about ensuring that European countries uphold their human rights obligations which could apply, obviously, extraterritorially. It's about securing peace in Europe. And I think that to the extent that it is saying, everything in this convention needs to be read in light of that object and purpose and this is what we're saying it is, that is language that a future France or UK, as we're picking on those two will pick up and and say, in a future context, even a future context of aggression overseas, well, look at the object and purpose of the convention. It is about securing peace in Europe.

Tom: Yeah, I agree with all of that, really. I think it's clear that if you were thinking about the alternatives before this decision, and one of the alternatives was, we sustain Georgia v. Russia (II) in the jurisprudence, that would have been the worst case outcome. So it's certainly a sanguine development that we're moving beyond that and recognizing that human rights obligations apply when you exercise the kind of control that ultimately goes to the human rights outcome, namely, whether somebody dies or is inflicted with severe suffering or any other kind of human rights harm. That kind of control, the control over whether they suffer that outcome, is relevant to determining whether you have the human rights obligation in the first place. The problem is that these additional conditions are imposed. So, it's better than Georgia v. Russia (II), which almost throws out, completely out the window, but it's certainly not as good as it could be. 

And I think it's correct to say that the two primary concerns one would have at this point are: one, is this really limited to situations of a specific kind of aggression, territorial aggrandizement, which is not the kind of aggression that the UK and France are most likely to engage in, even though they are likely to engage in other kinds of aggression. And secondly, that it is at least possible to interpret the way that the Court reasons here as limited to the legal space of the European Convention, this notion of espacio juridique, which was introduced in the Banković case and which at various points has broken down, but now seems to potentially be making a comeback for this kind of conflict, or is at least subject to an interpretation along which that's the the upshot here, and that would certainly be a negative development. That's less explicit as a condition, so it's in the background, as Bec suggested, it's in the Introduction. It's also in the introduction to the specific assessment of extraterritoriality. So, it's definitely present, but it's not explicitly a condition of the application of extraterritorial obligations here, so it's less clear that it would be bearing future decisions. 

I do though think, going back to Bec’s initial point in this particular segment, that in many ways, we do have a progressive development of the law here that this development of the law gives the the argumentative hook for advocates seeking to push beyond the particular territorial aggrandizement limitation, to argue that the principles here should not be conditioned on that, that's just not a coherent basis on which to condition these particular obligations. And so the fact that that foundation is now dead does provide for litigation going forward that is potentially going to move beyond that particular set of limitations. But I think it's very clear that this was crafted specifically to assuage the concerns of the UK and France. The UK, in its submission, had specifically said, Let's not let this egregious context, the Russian aggression against Ukraine, distort European Convention, European Court jurisprudence regarding the European Convention.

And so, this is essentially a way of trying to thread that needle. I don't think ultimately that it's sustainable, precisely because there's enormous incoherence. And so the question is just which way does that incoherence break going forward? The only final point I'd add here is that notable among the states that the Court no longer had to placate is Russia. Because up until this point, Russia had been a party to this system. The fact of Russia's exit from the Council of Europe, in a sense, freed the Court to not have to worry at all about how Russia was going to respond, because it was pretty obvious it was going to respond by rejecting the outcome. And because it's outside the system, it's no longer a state that the Court has to worry about in terms of accommodating its political concerns. And so that's another factor that's maybe worth bearing in mind.

Ryan: Yeah, and one of the points that you had made, Tom, about there's a way in which this opinion is incompatible with Georgia v. Russia (II), is that one of the underlying reasons in Georgia v. Russia (II) as to why the chaos context meant that the right to life issues were beyond the reach of the Court is the idea that the Court could not assess human rights violations in those situations. And I want to turn this to you, Bec, on that, because one of the most salient aspects of this Court opinion is how it stands on the shoulders of other local Ukrainian organizations, international organizations, in terms of human rights fact finding, and that's one of your areas of specialty. So, if you could just talk through what you see of significance in the way in which the Court actually does assess the alleged human rights violations in terms of the sources that it's using and the like? That'd be great to hear. 

Rebecca: Yeah, honestly, it was one of the most striking features of the opinion, and 500 pages long, right? But it is paragraph after paragraph that is drawing on fact finding that has been done by a whole range of organizations. You've got from the UN Commission of Inquiry right down to very grassroots Ukrainian NGOs that have been doing this documentation work for over a decade at this point, and that meant that, you know, I think we can maybe be cynical about whether the Court in Georgia V Russia (II), had just inappropriately thrown up its hands and said, It's too, it's too hard, there's too much chaos, we can't delve into the evidence. 

But here, the entire sort of fact finding ecosystem stepped up to the plate and said, We are not going to let this Court get away with saying it's just too hard to figure out an evidentiary base here. And so the Court is fully dependent on these extraordinary efforts that have been done. And I, you know, I didn't get through it all, but, but the first two annexes, one is a hundred pages long, the others more than a thousand pages long. And again, it is the work of all of these, not only the formal kind of UN bodies, but local NGOs. 

And I couldn't help, you know, not to bring everything back to the US, but I couldn't help but reflect on the impact of cutting USAID, the funding that was supporting so many of these grassroots efforts to do documentation over these long years, and a real concern that in the future, that fact finding ecosystem is not going to be able to be vibrant and robust enough to deliver this up to the Court, with really devastating implications for what happens to the jurisprudence in this space. And so it’s just like another one of those long tails of something that we are kind of seeing happening in the news, but the ripple effect is, is potentially really significant.

Tom: I completely agree with that. I think that the only thing to just add is that, in addition to relying on these fact finders of various different kinds, and relying on them heavily and for really detailed and granular information, the Court then combines that with the use of adverse inferences regarding Russia's noncooperation, and this is really critical when we're thinking about conduct of hostilities violations in particular, because you can see the impact of a particular strike. You can see the breadth of a particular destruction of an urban area, but then assessing whether that impact is in violation with international humanitarian law requires trying to figure out, what were they trying to target? What kind of precautions did they undertake? What military advantage did they—or see if this was indeed targeted in a military objective, and how does that compare to the civilian harm that was anticipated from this strike? 

And many of those components of information aren't immediately accessible, but what the Court did was, they look, we have the systematicity of these kinds of impacts across multiple different situations, urban environments, residential areas, and we have all of the facts that have been gathered around that from the fact finders, including looking at munition type and so on. And then we don't have anything from the Russian government in terms of explaining what operational information did they have? What target had they identified? What were their verification steps? What precautions did they take, who was involved, what kinds of choices were made with respect to which munitions and so on, and because they simply didn't provide us any of that information, we can combine the information that we do have from the fact finders with the refusal to provide information that was within the exclusive control of the Russian government to draw an inference with respect to clear violations of international humanitarian law across multiple different issues, which we may come to, but the key thing is the combination of those two. 

And the Court also noted that it has a process for dealing with sensitive documents and information in Rule 44F and that Russia didn't avail itself with that process. So it was emphasizing that when we're looking at it, particularly from a human rights perspective, as opposed to, say, in an individual criminal trial with a specific person whose liberty is at stake, we can use this process of adverse inferences to buttress the information that we get from the fact finders to come to a holistic determination that there are clear violations in this case.

Ryan: Yeah, and just add a couple quick points to that. There's also a passage where they draw an adverse inference from the Russian decision to not allow independent monitoring missions on the ground to conduct investigations. And then the other point I think that's worth making, because we're talking about the larger implications for the international human rights system writ large, is that this is, in some sense, a standard approach for courts, tribunals, fact finders. 

So, when we might turn to a different conflict and see that one of these institutions, one of these bodies, indeed does the very same thing, draws an adverse inference when the state does not engage or respond or provide information, that's not political, that's actually just the method of conducting these kinds of assessments outside of the criminal context. So I do want to turn to the one specific human rights set of violations and to draw on your expertise Tom, which includes issues of siege warfare and starvation, also because that has potentially larger implications in Gaza and elsewhere. And to me, the part that stuck out was Paragraph 764, and I'm going to just read a couple lines from that paragraph, but I just want to turn to you, Tom, and see how did you read that? How did you read it, in terms of, is this making advances within the jurisprudence around siege warfare, starvation, and the like? How does it fit in with that general architecture? 

So, the line that stuck out to me was, they basically said Russia “was also under a positive obligation pursuant to Articles 2 and 3 of the Convention” —2 is right to life, 3 is torture and inhuman and degrading treatment, so is under positive obligations under those articles—and then continuing the quote, “to protect civilian lives and well-being in the besieged cities in order to alleviate the suffering of the civilian population, this included an obligation to ensure adequate supplies of water, food and heat for settlements under siege.” So, throwing it to you, just to lend your expertise to how you saw their analysis.

Tom: Yeah, I think there are a few interesting components to this. It's maybe worth backing up for one second to think about how the Court articulated its understanding of the relationship between human rights law and humanitarian law here more generally, because that particular passage that you're mentioning is grounded in Articles 2 and 3, right to life and right against torture and inhuman or degrading treatment, but it's then underpinned by an invocation of a number of international humanitarian law rules. And the Court does explicitly articulate, before getting into any of the IHL analysis, how it understands the relationship between these two. 

And one of the interesting things that it does there is explicitly disavow the lex specialis notion, the notion that international humanitarian law is the specialized law for armed conflict. And so it either displaces international human rights law or is the exclusive interpretive framework through which to understand what international human rights law means. And instead, it says we should think about this through coordinated interpretation, Article 31 3(c) of the Vienna Convention on the Law of Treaties, which requires in interpreting one particular legal framework to understand it in light of and to take account of other relevant rules of international law applicable between the Parties. And so in this case, that means looking at the European Convention framework and taking account of international humanitarian law, which is applicable between the Parties, Ukraine and Russia, and which bears on how we should understand their human rights obligations in this particular context. It doesn't say what it would do if these two things are in fundamental tension. It does recognize that possibility, especially with respect to the right to life, but it then says we don't actually need to navigate that particular tension here, because all of the violations that Ukraine has alleged are alleged as violations of international humanitarian law. 

So, there is no example alleged of what would have been an IHL compliant act violating the European Convention on Human Rights. So then we can just look at these two in coordinated interpretation, and essentially interpret the European Convention, which is the treaty over which the European Court has authority, interpretive authority, in light of international humanitarian law. And that does mean understanding what international humanitarian law means in each of these particular contexts. That's just by way of background. Then when they're looking at the specific issue of siege and the deprivation of objects indispensable to survival, what's interesting is they, first of all, split that into the negative obligation not to inflict inhuman treatment, inhuman or degrading treatment, rhey're really focused on that rather than torture in this analysis. And then the positive obligation to ensure protection from inhuman or degrading treatment. And in the negative component, they simply emphasize that being left in dire conditions without access to essentials itself constitutes inhuman treatment. And so they don't, in that particular component, draw that much on international humanitarian law. 

They mention starvation of civilians as a method of warfare at the beginning of the analysis, but they don't really integrate the analysis between IHL and human rights law. It's, as you said, in the positive dimension where they're discussing the duty to ensure protection from inhuman treatment that they then invoke various provisions of international humanitarian law, including the prohibition on salvation of civilians as a method of warfare, the protection of objects in of objects indispensable to survival, the obligation to endeavor to agree evacuation routes for certain protected categories of persons, and taking these things together, they argue that there's this duty to ensure a supply of food, water, and other essentials. And that's quite remarkable, even from an IHL perspective, because that language of ensuring the supply of essentials is most explicitly provided with respect to situations of belligerent occupation under Article 55 of Geneva Convention IV. But they don't invoke that, and they're not talking about situations of occupation, they're talking about situations of siege. Sometimes you can argue that tightness of control regarding the perimeter of a siege meets the threshold of occupation, that's a controversial issue, but they don't really go there. They don't discuss Article 55 at all. 

They instead derive from the prohibition of salvation of civilians as a method of warfare and protection of objects indispensable to survival and requirements regarding evacuation routes for protected persons. They derive from all of that that there's an obligation to ensure the provision of essentials to a besieged population, which is really quite a remarkable ruling and a really important and I think a landmark aspect to this particular decision that could have significant implications across a number of conflict areas. In particular because the human right obligation that they're linking to international humanitarian law, the two human rights obligations, right to life and right to be protected from inhuman treatment, are applicable across all human rights frameworks. They're not distinctive in any way to the European Convention on Human Rights. So it's it's really significant in that respect.

Ryan: And I guess, let me then turn to one last question and then at the end, I'll just ask if you all have any other thoughts that you want to put out there. But one last question about other rights, focusing in on the right to life, that are general. You can find them in all international human rights instruments, regional human rights instruments. And one of the pieces that I was looking to the opinion when I first opened it was what they might say about the relationship between jus ad bellum, so prohibitions on the use of force, of the resort to war, especially the crime of aggression, and the right to life. Because there have been major advances made in international human rights on that basis, including the United Nations Human Rights Committee, which has supervisory authority over interpreting the International Covenant on Civil and Political Rights, and they have said essentially that instances of a crime of aggression are violations of the right to life, or our arbitrary deprivations of life, so that all of the lives lost in a conflict that is a conflict of aggression would be human rights violations. It's pretty straightforward, logically, and here the Court punts, just does not address it, except to say that the reason they didn't address it is because the two governments, the Netherlands and Ukraine, didn't bring it up. What did you all think about that as a particular moment in human rights jurisprudence for the Court to take a pass at that question?

Tom: I think it's unfortunate but predictable. So I agree with the Human Rights Committee's position that killings in the course of an aggressive war are ipso facto a violation of the right to life, whether they violate international humanitarian law or not, because they lack a legal basis, lacking the authority or the resort to force in the first place. And that's also been endorsed in a form by the International Court of Justice in the reparations decision in the Armed Activities case between the Democratic Republic of the Congo and Uganda, where it says in victor, as a matter of principle, the loss of life caused by these internationally wrongful acts, which in that particular passage include the jus ad bellum violation itself, gives rise to the obligation of Uganda to make full reparation across those arms. 

So, both the ICJ and the Human Rights Committee have endorsed this notion that aggression itself entails a massive human rights violation, obviously not limited to the right to life. The reason the Human Rights Committee was focused on the right to life is because that was a general comment on the right to life, but it would extend across multiple different human rights and in some ways you might have thought because of the clarity of the aggression in this context, the clarity of the jus ad bellum violation, this would be the easiest case for a body like the European Court of Human Rights to build on that jurisprudential foundation and apply it to a specific case with the implication that all of the killing and all of the infliction of inhuman treatment through various forms of harm and all of the destruction, etc, is a violation of human rights law because it stems from an aggressive resort to force on the parts of Russia. 

And so in a sense, it's disappointing that it didn't reach that conclusion, because I think that is the correct human rights determination, but I think it is predictable, because the courts looking beyond this particular case, and looking at cases where the question of the jus ad bellum is going to be less straightforward, and where it may not want to go into the weeds of trying to evaluate jus ad bellum claims because it's not, it's core competence, or at least it doesn't understand it, to have itself, to have core competence on that issue, and so I think it was forestalling that, essentially drawing relief from the fact that the Parties hadn't raised it and forced it to confront the issue, and saying we don't have to address that here, and probably, thank goodness, because we don't want to address it in future cases. But I do think that jurisprudentially, it's a shame.

Rebecca: I one hundred percent agree with you, Tom, on this. I think you know, if ever there was going to be a case where they could have made this move, it was set up for them here, and it would have been a really nice opportunity to align with where I think the law needs to be, where the Human Rights Committee already is, and where many of us believe just makes sense. And I also you know, as we dig into the weeds of a 500 page judgment, we want to also be able to bring it back to the experiences that people are actually having, and for the law to resonate with them. 

And if you think of a Ukrainian mother whose kid was, you know, a schoolteacher up until the Russian invasion, and then, you know, was, of course, brought in to be a soldier and lost their life, how is that not a violation of their child's right to life? I mean, it just doesn't make sense. So, you know, that's, that is hugely disappointing as an academic matter, but also just as a sort of experiential matter. But I agree with you. I think the Court was worried that there would be harder calls that it would have to make in the future, in a case that didn't line up as clearly as this, and they were unsure that they had the confidence as a human rights court to do it. But I think this would have been the moment, and we've missed it, and I can't see, I mean, touch wood, this being lined up for them in the near future.

Tom: Can I just add two quick points to that? One is, I think Bec very correctly emphasized that one of the reasons to care about aggression as a human rights violation specifically is that combatants are almost entirely unprotected from lethal targeting under international humanitarian law. As long as they haven't been rendered hors de combat, they are subject to lethal targeting. And one of the things that recognizing aggression is a human rights violation, including the right to life—one of the things that that does is recognize the wrongfulness of, in this case, the slaughter of Ukrainian combatants. 

There are two things I wanted to add to this. One is that in the decision there is one part where they discuss the killing of combatants, and that's the killing of combatants who have either been rendered hors de combat, but also in one instance, who are retreating in a context in which there was an agreement regarding the evacuation of Ilovais’k, and in that particular context, they claimed that the Russian targeting of the combatants, even those who weren't rendered hors de combat—so some of the combatants in this convoy were wounded and injured, and therefore hors de combat, not legitimate targets under international humanitarian law—whereas others were not. They found that even those who were not hors de combat were still unlawfully killed or attacked in this particular context because of the agreement regarding the evacuation and that implicated the international humanitarian law provision on perfidy, which is an interesting analysis, except it would have been nice if they had given a little bit more detail to their understanding of perfidy and its application here. I don't think it's necessarily incorrect, but it would have been useful to have more of an elaboration here. 

The second thing that I just wanted to add is that notwithstanding having eschewed an examination of the jus ad bellum for the reasons that we just discussed, but reasons we discussed earlier, they did, in a sense, invoke the jus ad bellum as the basis for extending extraterritorial obligations of Russia under the European Convention into Ukraine, into areas over which it wasn't exercising spatial control. And there's a little bit of an incoherence with their readiness to invoke principles of the jus ad bellum there, and indeed, to use the language of aggression and then to eschew it here, because it's beyond their competence. I think it's not at all unpredictable that the latter move was made, but it does just add an exclamation point to quite how ultimately untenable that first move is going to be in terms of sustaining a coherent doctrine on extraterritorial application of human rights obligations.

Ryan: Yeah. So I think maybe bring this particular part of the conversation to a close, even though there's so many other issues we could discuss, like one of the topics we even thought about discussing is about rules of attribution between the separatists and the Russian government. Maybe leave that for another conversation. I do want to end it where Bec had also just mentioned, that bringing it back to the victims of human rights violations themselves. And then what you had also said, Tom, that with a war of aggression, one of the prices of a war of aggression is the toll on human life that just necessarily comes with it. 

And I'll put this in the show notes, but at Just Security, Ambassador Keith Harper and I—I hate the fact that it's me as a co-author because I don't want to promote my own work—but we wrote a piece, and I'll drop it in the show notes, it was called “Toward a Better Accounting of the Human Toll in Putin's War of Aggression,” it was back in 2022, and part of our argument was because the idea seems just so correct that the crime of aggression incurs human rights violations, the UN and another body should be counting all of these lives, not just focused on only those lives that are otherwise like jus in bello violations, and including in that is not only just like the combatants and the Ukrainian side, but also Russian conscripts who are sent in by Putin, and he knows, into situations of slaughter at hundreds of thousands of people, and this would also account for their human rights as well, in a certain sense of just the ways in which we can think about warfare and combatants on both sides, and then civilians, of course. 

So with that, just wanted to thank both of you for lending your expertise, and especially you know, given that we just are beginning to digest the opinion and you both are such consummate professionals and experts in these areas, it educated me, and I'm sure It'll educate anybody who listens to or watches this. 

By way of closing the episode, it was hosted by me, Ryan Goodman, produced by Maya Nir with help from Isaac Rubinstein. Special thanks to our guests, Bec Hamilton and Tom Dannenbaum. You can read all of Just Security's coverage at justsecurity.org. If you enjoyed this episode, please give us a five star rating on Apple podcasts or wherever you listen, and please be sure to follow us on YouTube and just thanks for everybody for listening, feel free to also put comments in on social media platforms where Just Security is, and I'll be looking for those as well to engage. So thanks everybody, and thanks Bec, thanks Tom, so much.