Not Afraid of International Humanitarian Law Anymore: the European Court of Human Rights after Ukraine and the Netherlands v. Russia

By Dr. Giorgi Nakashidze

The European Court of Human Rights’ (“Court”) judgment of 9 July 2025 in Ukraine and the Netherlands v. Russia (‘Judgment’) marks a milestone in the Court’s evolving engagement with international humanitarian law (IHL). Although the Judgment raises numerous issues deserving of detailed analysis (see e.g. Milanović, Risini, Khachatryan), this post focuses exclusively on the Court’s approaches to IHL, with particular emphasis on Georgia v. Russia (II) as the principal case for comparison. This post argues that the Court has moved away from its traditionally cautious and reluctant approach to IHL and redefined itself as a monitoring mechanism for IHL, as evidenced, at least for now, in cases involving international armed conflict (IAC) between the Contracting Parties to the European Convention on Human Rights (“Convention”).

1. Establishing the Context: the Court and IHL

The Court has traditionally been reluctant to let IHL determine the outcome of its judgments. The Court’s stance toward IHL has ranged from a disregard and a shy openness, to an incidental examination, interpretative consideration and, in exceptional instances, direct application of this body of law (see Sicilianos, 2017). In non-international armed conflicts (NIAC), the Court employs IHL principles and terminology implicitly (see Moir, 2013, p. 484). It remains a matter of debate whether it is within the Court’s ratione materiae jurisdiction to directly apply IHL (see e.g. Yip, 2020), an often-cited example of which is the Hassan case.

The Court’s judgment in Georgia v. Russia (II), which many had expected to be the first to compel the Court to engage directly with the law of IAC – or, put differently, to apply IHL in a clear and structured manner – ultimately, fell short of these expectations. To the disappointment of many (see e.g. Gavron and Leach, 2021), the Court did not examine, on jurisdictional grounds, “the active phase of hostilities” taking place in a “context of chaos”, thereby relieving itself of the need to apply IHL rules of engagement.

Yet, the Court engaged with IHL as applied to “the occupation phase”. In this context, the Court for the first time developed a methodology for the concurrent application of IHL and the Convention with respect to specific rights and freedoms. It examined how the Convention and IHL interrelated for each alleged violation, assessing in each instance whether a conflict existed between the rules of IHL and the provisions of the Convention (Georgia v. Russia (II), §95), founding none.

The very act of developing a methodology constituted a notable advancement, contributing to a clearer and more systematic understanding of the mechanics of integrating IHL within the competence of the Court. The Court took up and further developed this methodology in the Ukraine and the Netherlands v. Russia Judgment.

2.     The Court as a Monitoring Mechanism for IHL

As I had argued elsewhere before the Court handed down its judgment in Georgia v. Russia (II), “despite the conceptual, jurisdictional and practical challenges that may be entailed by the ECtHR’s application of IHL, it is plausible to view the ECtHR as a supervisory mechanism of IHL” (emphasis in original). While the Court ultimately succeeded in avoiding direct engagement with conduct of hostilities under IHL in Georgia v Russia (II), it nevertheless made two obiter remarks.

First, it noted that situations within the active phase of hostilities in IAC were “predominantly regulated” by external norms, specifically, IHL (§140). Second, the Court appealed to the Contracting Parties to specifically equip the Court with “the necessary legal basis” if it was asked to adjudicate conduct of hostilities under IHL (§142).

Against this background, it is however interesting that the Court made the following observation in the present Judgment:

“[…] It also follows as a consequence of the special character of the Convention as an instrument of European public order for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, to “ensure the observance of the engagements undertaken by the High Contracting Parties” […]. In these circumstances, the Court cannot avoid interpreting international humanitarian law and, where necessary for it to carry out its role, will assess compliance with international humanitarian law provisions […] (§429) (emphasis added).

This pronouncement reflects a clear break from the restrained stance taken by the Court in Georgia v. Russia (II). This shift also lends some support to my earlier findings (see supra). What is especially striking is how the Court approached the self-imposed constraints in Georgia v. Russia (II). The Court did not treat the existence of an IAC – governed ‘predominantly’ by IHL – as a factual situation falling outside its Convention-based competence, nor did it consider that any additional legal basis was required to assess conduct of hostilities under IHL.

The Court, referring to the ICJ’s judgment in DRC v. Uganda, elucidated that it had never followed the ICJ’s previous case law in classifying the relationship between the Convention and IHL as a matter of lex generalis and lex specialis. It means, according to the Court, that IHL never fully supplants the Convention’s guarantees in armed conflict (Judgment, §428). The Court’s pronouncement, in effect, appears to repudiate its own prior dictum that situations of armed conflict are to be governed predominantly by IHL.

As for the “necessary legal basis”, it has remained unclear what the Court exactly had in mind, leading authors to conclude that this statement was more based on concerns of legitimacy than a genuine constraint (see Longobardo and Wallace, 2022). To put it simply, the Court “[did] not want to apply IHL directly” (see Tan, 2023, p. 345). In the present Judgment, in any event, the Court effectively set aside its earlier insistence on the need for an additional legal basis, proceeding as though this requirement were no longer relevant. The Court’s silence may suggest that it has set aside those reservations as no longer pertinent.

3.     The Court’s Engagement with IHL: Assessing the Right to Life in the Context of the Conduct of Hostilities

The true litmus test for the Court, as a monitoring mechanism for IHL, has always been harmonizing (to the extent possible) the operation of substantive limb of Article 2 of the Convention with the law of targeting during IAC. In the instant Judgment, the Court addressed the substantive aspect of right to life in three factual contexts: (1) the downing of MH17 (§§450-466); (2) the targeting of civilian objects and infrastructure by Russia during military operations in territory under its effective control (§§747-760); 3) The extrajudicial killing of civilians and hors de combat soldiers in occupied areas (§§1033-1045). This section focuses on the Court’s engagement with IHL in respect of the first two situations.

It is appropriate to begin with two preliminary observations. Firstly, the Court’s analysis did not extend to situations of normative conflict – instances where the military operation is lawful under IHL, but it could not be justified under Article 2(2) of the Convention. Secondly, the factual situations mentioned above did not involve mutual “bombing and artillery shelling” in a context of chaos, unlike Georgia v. Russia (II). Therefore, although the Judgment came as close as any thus far to confronting a situation that might have required resolving a direct normative conflict between IHL and the Convention (as the Court did in Hassan in respect of Article 5), the question – how the Court would approach such a conflict – remains unanswered.

In respect of MH17, the Court examined with unreserved clarity the downing of flight against the principles of the law of targeting set out in Articles 48, 52, and 57 of Additional Protocol I (AP I) (Judgment, §§450-466). It assessed whether the attack complied with the principle of distinction and with the duty to take all feasible precautions to avoid civilian harm. Finding that no steps were taken to verify the target and that no feasible precautions were observed, the Court concluded that the missile launch was in breach of IHL principles of distinction and precautions. It held that the attack constituted “an indiscriminate attack prohibited” under Article 52 AP I and could not be deemed “a lawful act of war” (Judgment, §461).

With regard to the armed attacks, the Court limited its examination to those military operations that Ukraine alleged to be in violation of IHL (§747). Thus, the Court deliberately avoided any assessment of killings potentially compatible with IHL but incompatible with the Convention. The reason the Court was able to focus exclusively on incidents deemed to constitute IHL violations – based solely on the applicant’s assessment – may lie in the procedural context: Russia’s non-participation in the proceedings meant that the unlawfulness of killings under IHL remained unchallenged.

In sum, while the Court deliberately distanced itself from addressing the more difficult questions of normative conflict, its open and confident engagement with the law of targeting marks a significant step forward. By directly applying key IHL rules, the Court demonstrated a clear willingness to integrate IHL into its competence. This approach departs from earlier tendencies to refer to IHL implicitly or avoid its application altogether.

4.     The Court’s Approach to Derogation

It is a settled position that derogation under Article 15 of the Convention opens the door to IHL (see e.g. Joint Partly Dissenting Opinion of Judges Yudkivska, Pinto De Albuquerque and Chanturia in Georgia v. Russia (II), §§14-18; Nakashidze, 2020, p. 294-295). Article 15(2) of the Convention specifically stipulates that states may not derogate from Article 2 (right to life) “except in respect of deaths resulting from lawful acts of war”. The notion of “lawful acts of war” refers to conduct that is permissible under IHL. This creates a direct opening for IHL to be considered by the Court, especially when it needs to decide whether a killing in wartime was “lawful”.

However, the Contracting Parties do not typically resort to derogations from the Convention in the context of extraterritorial IACs (see Hassan, §101). According to the Court, the absence of such derogations may reflect the understanding of the Contracting States that, during military operations conducted abroad, they are not exercising jurisdiction within the meaning of Article 1 of the Convention (see Banković, §62; Georgia v. Russia (II), §§138-139). Nevertheless, the Court has applied or relied on IHL where jurisdiction exists under Article 1 of the Convention and where no formal derogation under Article 15 had been made. In Hassan, the Court held that, even without a formal Article 15 derogation, it might still take the IHL into account when interpreting Article 5 (Hassan, §103), “only where this is specifically pleaded by the respondent State” (ibid., §107).

In the present Judgment, the Court expressly, albeit laconically, acknowledged the importance of Article 15 – something it does not typically do – stating that “[w]ithin the structure of the Convention, only Article 15 explicitly addresses armed conflict” (Judgment, §425). The Court applied IHL despite the absence of a formal derogation by Russia (ibid., §426) and even though Russia had not requested it to do so. In doing so, the Court appears to depart from the Hassan approach (under which IHL is considered only when specifically pleaded by the respondent State) – arguably because that approach is reserved for situations of normative conflict between the Convention and IHL, which was not at stake here.

In respect of military attacks, the Court noted that “the question how to approach killings compatible with international humanitarian law from the point of view of Article 2 of the Convention, in the absence of any derogation under Article 15, does not therefore arise for consideration” (emphasis added) (Judgment, §747). This is a noteworthy observation. It suggests that where derogations from Article 2 of the Convention are present, the Court may move beyond the confines of the Convention and assess “lawful acts of war” directly under IHL. In such cases, the Court would not need to engage in harmonization between the Convention and IHL, but rather apply IHL on its own terms – a task it appears ready to proceed with should the circumstances allow and require it.

To sum up, the Court engaged with IHL extensively even in the absence of a formal derogation. At the same time, the Court expressly acknowledged the structural importance of formal derogations as a gateway for bringing IHL within its mandate to resolve potential normative conflicts in relation to right to life under the Convention and IHL – indicating that it now feels ready to carry out this task as well.

5.     Concluding Remark

In Ukraine and the Netherlands v. Russia, the Court engaged with IHL transparently and unapologetically, asserting its institutional capacity and subject-matter jurisdiction to assess – even in the absence of formal derogation – the Contracting Parties’ compliance with IHL. Although the Court did not have to resolve normative conflicts between the Convention and IHL in that case, it nevertheless implicitly signaled its readiness to address such conflicts where formal derogations – such as from the right to life – are made. This development reflects the Court’s growing judicial confidence in handling complex allegations of human rights violations in armed conflicts. Yet, it remains unclear whether this approach will persist in future IACs between the Contracting Parties, or whether it was limited to the particular circumstances of the case decided in the Judgment.