Our Third-Party Intervention in Ukraine and the Netherland v. Russia

30 May 2023

In Ukraine and the Netherlands v. Russia, the European Court of Human Rights (ECtHR) will have the opportunity to clarify and develop several topical points concerning the interpretation and application of the European Convention on Human Rights (ECHR) in situations of international armed conflict. The magnitude of the events from which the case stems is matched by the importance of the legal determinations that the Court is called upon to make.

The Geneva Academy has been granted leave by the ECtHR to intervene as a third party in this case – along with 26 governments – and submitted its third-party intervention on 28 April 2023.

Reflecting the salience of this case, the intervention focuses on three main subjects: (1) the extraterritorial application of the ECHR in an international armed conflict; (2) the relationship between the ECHR and international legal norms governing recourse to armed force between states (ius ad bellum); (3) the interplay between the ECHR and international humanitarian law (IHL).

Providing Legal Inputs to Help the Court Decide the Case

When preparing our third-party intervention, the chief concern was to provide legal inputs and elements that could help the Court decide the case.

‘Impartiality, objectivity and the interests of the proper administration of justice have been our guiding principles’ explains Professor Gloria Gaggioli, Director of the Geneva Academy.

‘The range of legal issues raised by the allegations is extraordinarily varied and complex. It brings into the picture the recent case law of the Court, but also doctrinal developments and the practice of other human rights bodies. We strived, in our submission, to reflect all these different aspects, with particular attention to the positions and the reflections that the Geneva Academy’s faculty and researchers have elaborated during the years’ underlines Dr Francesco Romani, Research Fellow at the Geneva Academy and in charge of our IHL-Expert Pool.

Next Steps

The third-party intervention has been forwarded to the parties to the case, who have been invited to include any observations which they may wish to make in reply in their written memorials which are due by 2nd October 2023.

‘We are of course at the disposal of the Court to provide additional clarifications or oral explanations regarding our submission’ says Professor Gaggioli.

An Illustrative Example of the IHL-Expert Pool Impact

This third-party intervention represents an additional, extremely important way in which the IHL Expert-Pool (IHL-EP) operates.

‘Over the years, the ECtHR has been increasingly called upon to adjudicate on claims (arising from both inter-state cases and individual applications) alleging violation of human rights in situations of armed conflict. Through our IHL-EP, we can offer targeted IHL advice that the Court could integrate in its decisions, so as to maximize their relevance, coherence and acceptability’ explains Dr Erica Harper, Head of Research and Policy Studies at the Geneva Academy.

‘We hope that this will create positive dynamics, resulting in increased protection for victims of human rights violations as well as in stronger incentives for compliance with IHL norms’ she adds.

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