Ukraine and the Netherlands v. Russia, Merits Amicus Curiae Brief Submitted on behalf of the Human Rights Law Centre of the University of Nottingham

Milanovic, Marko; Shah, Sangeeta

Abstract

This is an amicus curiae brief at the merits stage in the case of Ukraine and the Netherlands v. Russia (nos 8019/16, 43800/14, 28525/20 and 11055/22) before the European Court of Human Rights, filed on behalf of the Human Rights Law Centre at the University of Nottingham, which was granted permission by the President of the Grand Chamber to act as third party intervenor in the case. The Centre previously filed an amicus brief at the admissibility stage of the proceedings, dealing exclusively with issues raised by the 2014 downing of the MH17 airliner over Eastern Ukraine.

After the Court declared the application admissible on 30 November 2022, it joined it with the case filed by Ukraine dealing with the full-scale invasion by Russia. The brief is confined to the outstanding jurisdiction issues that were not dealt with in the Court’s admissibility decision, as well as the interpretation of Article 2 of the ECHR in light of applicable rules of international humanitarian law (IHL). This brief considers the relationship between the ECHR and IHL more fully than our brief at the admissibility stage, particularly in light of the Court’s joinder of application no. 11055/22 that concerns numerous acts of hostilities committed in the international armed conflict between Russia and Ukraine since February 2022.

The first part of the brief addresses the issues of jurisdiction that are to be determined by the Court at the merits stage, discussing the rules relating to jurisdiction that apply to the conflict between Russia and Ukraine since February 2022. In particular it argues that the Court should overrule the restrictive approach it had adopted in its Georgia v. Russia (No. 2) judgment. This section also confirms the rules of attribution that should be considered when assessing state responsibility for a violation of the ECHR. The second part of the brief examines how Article 2 of the ECHR should be interpreted in light of the applicable rules of IHL. It discusses in particular how Article 2 should be interpreted jointly with Article 15(2) ECHR, which permits derogation from the right to life in respect of deaths resulting from lawful acts of war, and how the Court should take into account IHL rules on distinction, proportionality, precaution and means and methods of warfare in its analysis. Finally, the third part of the brief examines how mistake of fact in the use of lethal force should be considered in light of the obligations under Article 2 of the ECHR and applicable rules of IHL.

• Deposit Date: May 4, 2023
• Publicly Available Date: May 30, 2023
• Public URL: https://nottingham-repository.worktribe.com/output/20283376
• Publisher URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4427214