Questions of Extraterritorial Jurisdiction in Ukraine and the Netherlands v. Russia

On 25 January 2023, the European Court of Human Rights delivered its decision on the admissibility of the interstate complaints lodged by Ukraine and the Netherlands against Russia in relation to alleged violations of the European Convention on Human Rights in eastern Ukraine controlled by separatist groups. In this case, the Court had first to decide whether Russia exercised its jurisdiction on the separatist-controlled territories within the meaning of Article 1 of the Convention and, consequently, was bound to secure the rights and freedoms guaranteed by the Convention in these territories.

The Grand Chamber’s decision relates to an important issue of the application of the Convention in the context of armed conflict. What is more, it provides much needed factual clarity on the nature of Russia’s involvement in the armed conflict ongoing in the eastern regions of Ukraine since 2014. This blog post provides an overview of the Court’s findings on extraterritorial jurisdiction and their implications for the Court’s jurisprudence.

Russia’s ‘Separatist Operation’ in Ukraine

In April 2014, various armed groups acting in the Donetsk and Luhansk regions of Ukraine began to take control of the governmental buildings and eventually proclaimed the creation of so-called Donetsk and Luhansk People’s Republics. With the aim of giving them a veneer of legitimacy, ‘referendums’ were held in both republics on 11 May 2014.

Examining Russia’s involvement in those events, the Court observed that the available evidence showed that by the time of these ‘referendums’, i.e. by 11 May 2014, ‘the separatist operation as a whole was being managed and coordinated by the Russian Federation’ (para. 693). According to the Court, the vast body of evidence demonstrated beyond reasonable doubt that Russia had effective control over all the territories seized by the separatists from 11 May 2014 (para. 695). The Court relied on two main reasons. First, Russian military personnel were directly present on the ground in eastern Ukraine as early as April 2014. What is more, Russian soldiers fought alongside the members of separatist armed groups and Russian senior military officials held command positions in the separatists armed groups and entities from the early days of the separatists’ activity (para. 611). Second, Russia’s military enjoyed ‘a decisive degree of influence and control’ over territories in eastern Ukraine by providing the separatists armed groups with military, political and economic support (para. 695). The Court established that Russia directed separatists’ military strategy and provided them with weapons and military equipment on a significant scale from the outset (para. 639). Russia also exercised political control over the separatist groups. For instance, the appointment of the leaders of the armed groups involved in seizing control in the region to the ‘government’ positions in the so-called ‘republics’ was subject to Russia’s approval (para. 671). Finally, the separatist entities received significant economic support from Russia (para. 689).

Control in Times of War

In its much debated 2021 judgment in Georgia v. Russia (II), the Court ruled that Russia did not exercise extraterritorial jurisdiction within the meaning of Article 1 of the Convention when it undertook military operations on the Georgian territory during the active phase of hostilities, also referred to as the five-day war. Armed confrontation and fighting between military forces of adversary States seeking to establish control over a territory meant that neither of them exercised control over the said territory (e.g. paras. 126, 137).

In the admissibility decision in Ukraine and the Netherlands v. Russia, the Court pointed out that most of the complaints brought by Ukraine did not concern events connected to military operations or armed confrontation (paras. 373-382, 699). This must be a reference to Ukraine’s allegations about violations of the Convention consisting, among others, in torture, arbitrary detentions, suppression of freedom of religion and expression. The Court states expressly that ‘there can be no doubt that a State may have extraterritorial jurisdiction in respect of complaints concerning events which occurred while active hostilities were taking place’ (para. 558). This is in fact a reference to the Court’s finding in Georgia v. Russia (II) that Russia exercised jurisdiction with regard to detention and treatment of civilians and prisoners of war which began while the active hostilities were ongoing. In Ukraine and the Netherlands v. Russia, the Court emphasizes that its ruling in Georgia v. Russia (II) ‘cannot, therefore, be seen as authority for excluding entirely from a State’s Article 1 jurisdiction a specific temporal phase of an international armed conflict’. The implication is that there may in fact be instances of a State’s exercise of personal or spatial extraterritorial jurisdiction within the meaning of the Convention against the backdrop of an ongoing armed confrontation. As I have argued elsewhere, this has been the case during Russia’s full-scale invasion of Ukraine.

Piercing the ‘Fog of War’

Following a somewhat different reasoning, the Court found that the events relating to downing of flight MH-17 also engaged Russia’s jurisdiction within the meaning of Article 1 of the Convention.

The Court relied on the investigation conducted by the Dutch Safety Board (DSB) and the Joint Investigation Team (JIT) established by the Netherlands, Australia, Belgium and Ukraine, which it found to be ‘authentic and reliable’ (paras. 467, 470, 701). According to the Court, these authorities concluded that ‘the aircraft had been downed by a Buk missile supplied by the Russian Federation and fired from separatist‑controlled territory while the aircraft was flying over separatist‑controlled territory’ (para. 701). Since in the Court’s view Russia exercised control and decisive influence over the separatist groups, the events relating to the firing of the missile from separatist-controlled territory and the consequent downing of MH-17 fell within Russia’s jurisdiction within the meaning of Article 1 of the Convention.

The fact that the downing of MH-17 took place in the context of hostilities between two opposing sides did not exclude exercise of Russia’s extraterritorial jurisdiction (para. 703). Here the Court drew a distinction from its earlier pronouncement in Georgia v. Russia (II) on the context of chaos, according to which the ‘very reality of armed confrontation and fighting between enemy military forces’ for the control over a territory excludes the exercise of extraterritorial jurisdiction (para. 137). In Ukraine and the Netherlands v. Russia, the Court noted that the chaos that may exist during the fighting on the ground does not necessarily exist during the use of surface-to-air missiles, which are directed at specific targets and can also be used outside the context of armed confrontation (para. 704). Furthermore, the JIT investigations established the circumstances of the MH-17 downing ‘beyond any doubt’ and therefore permitted the Court to pierce ‘the fog of war’ (para. 705). This suggests that the availability of sufficient reliable information surrounding certain events renders the Court more willing to engage in their examination, even if they take place in the context of armed confrontation.

Outlook on the Significance of the Findings on Extraterritorial Jurisdiction in Times of War

The Court’s findings on Russia’s exercise of extraterritorial jurisdiction in separatist-controlled regions in the east of Ukraine have significant implications beyond the limits of the interstate case Ukraine and the Netherlands v. Russia and related individual cases.

First, the Court clearly stated that the existence of armed confrontation and hostilities does not exclude a State’s exercise of extraterritorial jurisdiction and consequently the application of the Convention. This approach is likely to be followed in other cases arising out of an armed conflict where clear instances of territorial or personal control occur against the backdrop of active hostilities. As I have argued before, the full-scale invasion of Ukraine by Russia in 2022 is an example of such a situation. Furthermore, the availability of sufficient and reliable information plays a role in the Court’s willingness, and perhaps its ability, to pierce the ‘fog of war’.

Second, the Court’s findings based on detailed examination of evidence shed much needed light on the true extent of Russia’s support to the separatists operating in the eastern regions of Ukraine. The fact that Russia significantly influenced military strategies, supplied weapons to and directed actions of separatist armed groups not only shows that the armed conflict between Ukrainian governmental forces and separatist armed groups has never been of a purely internal character. It may also be decisive for qualification of the armed conflict as international since 2014, at minimum according to the overall control test used in international criminal law.

Finally, the Court’s ruling that the whole separatist operation has been managed and coordinated by Russia from the outset debunks the Russian myth about any purportedly genuine separatist movement in eastern regions of Ukraine. The separatists armed groups operating in the east of Ukraine have been fostered and bred by Russia.