Redefining Jurisdiction and State Responsibility in Ukraine and the Netherlands v. Russia

For over a decade, the armed conflict in eastern Ukraine has tested international law’s capacity to regulate modern warfare. After Russia’s annexation of Crimea in March 2014, pro-Russian armed separatist movements in Donetsk and Luhansk seized administrative buildings and declared independence from Kyiv [1, 2]. These separatist movements were organized, financed, and militarily supported by Russia through the supply of heavy weaponry, intelligence, and paramilitary advisors [3]. The conflict evolved into a protracted low-intensity war and a humanitarian crisis that resulted in torture, mass displacement, enforced disappearances, and the downing of Malaysia Airlines Flight MH17 in July 2014, which killed 298 civilians, most of them Dutch nationals [4, 5]. What began as an internal insurgency gradually transformed into an interstate confrontation that challenged the existing boundaries of international law.

In 2020, Ukraine and the Netherlands brought a joint case before the European Court of Human Rights (ECtHR), alleging systemic violations of the European Convention on Human Rights (ECHR) by Russia [6]. In 2022, the Grand Chamber declared the application largely admissible and in July 2025 issued a 500-page merits judgment. The judgement held Russia responsible for widespread and flagrant violations across eastern Ukraine and parts of the wider occupied territory. Reshaping how the European human rights system operates in conditions of active war, this landmark 2022 admissibility ruling stands as one of the most consequential human rights rulings for active warfare since Loizidou v. Turkey (1996) [7].

This article argues Ukraine and the Netherlands v. Russia (2025) is transformative because it (1) extends the Convention’s jurisdiction into zones of ongoing hostilities, and (2) broadens the rules of attribution by treating separatists as de facto organs of the Russian State. Although the decision raises contentions about overreach and sovereignty, it aligns with the necessarily evolutive nature of human rights law, especially in a world increasingly defined by hybrid warfare and proxy conflicts.

Expanding Jurisdiction to Contested Zones

The Grand Chamber’s judgment reconceptualizes the idea of jurisdiction under Article 1 of the Convention, which obliges States to “secure [the Convention rights] to everyone within their jurisdiction” [8]. Previous jurisprudence drew a careful line between stable occupation and transient combat. In Loizidou v. Turkey (1996), where the Court held that Turkey’s effective control in Northern Cyprus, “obvious from the large number of troops engaged in active duties in the disputed area,” warranted its obligations under the convention [9]. In Banković and Others v. Belgium and Others (2001), the Court declined to extend the Convention to a one-off NATO airstrike, defining effective control as “essentially territorial” [10]. Later cases such as Catan v. Moldova and Russia (2012) and Georgia v. Russia (II) (2021) addressed occupied territories but continued to exclude active battlefields from human rights scrutiny [11, 12].

The 2025 judgment decisively closes this doctrinal gap. The ECtHR held that, from May 11, 2014, the territories of Donetsk and Luhansk fell within Russia’s jurisdiction because Russia exercised decisive influence over their military, political, and administrative structures. More notably, the ECtHR found that Russia also bore obligations for military attacks conducted beyond those territories when such operations were designed to displace Ukrainian authority and gain control. In other words, jurisdiction followed the reach of power, not the boundary of occupation. The ECtHR characterized the invasion of February 2022 as a “watershed moment” that demanded interpretation of the Convention consistent with its object and purpose (i.e., peace and justice as foundations of European order). In doing so, the ECtHR effectively bridged the conceptual divide between human rights law and the law on the use of force. Where earlier judgments hesitated to apply the Convention in wartime, the Grand Chamber held that a State cannot escape its human rights duties by invoking the very instability it has created [14].

This reasoning reverses the “context of chaos” exception, the interpretive approach the Court had long used to treat the “fog of war” as a legal barrier to establishing jurisdiction, effectively insulating wartime conduct from human rights scrutiny. The ECtHR made clear that effective control may exist not only through boots on the ground but also through command structures, air-defense systems, and supply chains that extend across borders. It is a functional test rooted in the reality of twenty-first-century warfare. [15].

This expanded reading has implications far beyond Ukraine. By allowing jurisdiction to arise through both territorial control and operational authority, the judgment ensures that civilians caught in contested zones are no longer invisible to the law. It marks the end of the “legal black holes” identified in Georgia v. Russia (II) and affirms that human rights protection travels with State power wherever it is exercised in fact. [16].

Expanding Attribution to Separatist Actors

Equally significant is the ECtHR’s treatment of attribution, which redefines how state responsibility applies to proxy forces. Traditionally, attribution required strict proof of effective control over specific operations. The International Court of Justice’s decision in Nicaragua v. United States of America (1986) required “effective control” over specific operations to attribute contras’ acts to the United States and rejected the evidence of financing and support as sufficient [18]. Likewise, in Al-Jedda v. the United Kingdom (2011), the ECHR rejected attribution absent command and control [19]. These standards left a vast accountability gap whenever States outsourced coercion to militias or separatists.

Contrastingly, in Ukraine and the Netherlands v. Russia, the Grand Chamber broadens state attribution under ARSIWA by collapsing the distance between jurisdiction ratione loci (territorial jurisdiction) and attribution. After finding Russia’s effective control over separatist-held areas from May 2014, the Grand Chamber stated that “the acts and omissions of the local administrations in the areas concerned will [...] be automatically attributable to the State which has Article 1 jurisdiction” [20]. As such, the downing of MH17 falls within Russia’s spatial jurisdiction because both the Buk launch and the downing occurred in separatist-controlled territory, including the airspace above it [21]. Moreover, the child transfers and other coercive measures within the DPR/LPR are prima facie attributable to Russia once territorial control is shown [22]. This presumption of attribution materially lowers the threshold for Article 4 of the articles of State Responsibility tests and functionally treats separatist entities as de facto State organs. Through this judgment, the ECtHR turned the law of attribution from a shield into a channel of accountability; and thus, produced a jurisprudential template for modern proxy wars, one capable of closing the structural impunity that has long characterized such conflicts.

The Evolutive Nature of Human Rights Law

The judgment reaffirms that the Convention is a living instrument whose interpretation must reflect the conditions of modern conflict. Critics have argued that linking territorial control to automatic attribution conflates distinct tests of jurisdiction and attribution; Annick Pijenberg writes that the ruling “confuses the personal model of jurisdiction with the attribution question” and suggests that “the two models apply alternatively rather than cumulatively” [23]. Others may contend that by recognizing the illegality of Russia’s invasion, the ECtHR implicitly imported jus ad bellum into its reasoning, risking asymmetry between aggressors and defenders. Yet the Grand Chamber managed to navigate these tensions through careful judicial design.

Rather than subordinating human rights law to international humanitarian law, the ECtHR placed the two in constructive conversation. Humanitarian law principles (i.e., distinction, proportionality, humane treatment) inform the interpretation of Articles 2 and 3, while the Convention retains its procedural independence to investigate and prevent arbitrary deprivations of life. Similarly, jus ad bellum operates not as a jurisdictional filter but as a substantive lens through which the gravity and scope of violations are understood. Acts of aggression under the UN Charter intensify the assessment of breaches, particularly regarding the right to life and the prohibition of torture, yet they do not themselves create jurisdiction [24].

From that foundation, the ECtHR extended its reasoning to the realities of hybrid warfare, where control is fragmented, proxy forces obscure chains of command, and traditional notions of occupation no longer capture the exercise of power. The judgment ties the reach of the Convention to factual authority rather than sovereignty, to ensure that human rights protection does not vanish in “zones of lawlessness” seen in conflicts such as Syria or Nagorno-Karabakh. It presumes attribution in any territory under effective control within the meaning of Article 1, without demanding granular proof of command over each individual act [25]. This deliberate presumption closes accountability gaps left by Georgia v. Russia (II), where abuses were established, yet the conduct of South Ossetian forces remained legally uncertain [26]. While this adjustment departs from the ICJ’s stricter ARSIWA orthodoxy, it reflects the ECtHR’s pragmatic understanding that coercive power can no longer be defined by rigid hierarchies of control.

The ECtHR justified this evolution through the interpretive principle first articulated in Tyrer v. UK (1978), that the ECHR is a “living instrument” that “must be interpreted in the light of present-day conditions” [27]. Contemporary warfare is increasingly characterized by gray-zone warfare, a form of operations that rests on “obfuscat[ing] attribution” where the law is definitionally “unclear or non-existent” [28]. A lens designed solely for conventional interstate conflicts risks systemic impunity when states externalize coercion to autonomous partners. The ECtHR’s judgment of spatial jurisdiction better aligns with modern conflict dynamics, all while allowing Russia space to rebut attribution on the merits for specific incidents [29]. As such, modest doctrinal development is the condition for effectiveness, and it prevents law from becoming obsolete precisely where it is most needed.

Evidence, Discrimination, and the Reopening of Individual Justice

The judgment also redefines how the ECtHR handles evidence and patterns of abuse. Relying on its established standard of proof, the ECtHR concluded that Russia’s conduct amounted to an administrative practice of systematic violations, encompassing killings, torture, forced labour, and suppression of language and religion [30]. This conclusion drew upon convergent findings from UN agencies, NGOs, and domestic reports, as well as Russia’s persistent non-cooperation, which the Court held justified “appropriate adverse inferences” [31]. The judgment demonstrates that the ECtHR’s evidentiary model (i.e., contextual inference supported by consistent corroboration) can respond to the evidentiary asymmetry inherent in large-scale conflicts.

A further breakthrough lies in the ECtHR’s finding that these violations were committed without discrimination on grounds of political opinion and national origin [32]. This dual-ground conclusion recognizes that political persecution and ethnic discrimination were inseparable in Crimea and the occupied territories, where suppression of Ukrainian identity and persecution of Crimean Tatars were part of a single state policy. By reading political and ethnic motives together, the ECtHR moved beyond the narrow formalism of the ICJ’s CERD jurisprudence, which often dismissed racial discrimination claims for lack of direct proof [33]. The ECtHR instead treated contextual patterns, such as the banning of the Mejlis, closure of Tatar and Ukrainian media, and indoctrination in schools, as sufficient to infer discriminatory intent [34]. This intersectional approach strengthens the Convention’s capacity to capture complex, mixed-motive repression that typifies modern occupations.

Compensation and the Future of Accountability

The ECtHR’s handling of reparations connects it to broader efforts to establish an international compensation framework for Ukraine. The emerging Ukraine mechanism includes a Register of Damage, which has already received over forty thousand claims, a forthcoming Claims Commission, and a Compensation Fund. However, the Register’s mandate covers only damage occurring after February 24, 2022, leaving pre-2022 victims dependent on Strasbourg’s Article 41 just satisfaction process [35]. The Grand Chamber deferred this stage, citing the ongoing negotiations for the new mechanism, but such deference risks leaving an entire category of victims without redress [36]. This intersection between Strasbourg’s remedial function and the emerging international mechanism underscores both the promise and the fragmentation of accountability efforts for Ukraine.

Conclusion

The Grand Chamber’s admissibility ruling signals that the Convention’s protections travel with effective control even amid active hostilities and recalibrates jurisdiction and attribution to meet the realities of hybrid warfare. More broadly, the decision advances accountability for modern proxy warfare and actions during active hostilities.

As such, the ruling can inform current cases such as Ukraine v. Russia (ICJ, Genocide Convention case, 2022-ongoing) and South Africa v. Israel (ICJ, Genocide Convention case, 2023-ongoing), which likewise question state responsibility amid ongoing hostilities and contested territorial control [37, 38]. If it informs those cases, it supplies a method to more effectively map effective control and a rebuttable attribution framework for proxy actors, both of which can sharpen Genocide Convention analyses of state responsibility.

Works Cited

[1] Ivan Katchanovski, “The Separatist Conflict in Donbas: A Violent Break-Up of Ukraine?,” 2014, https://doi.org/10.13140/RG.2.1.1572.7122. [2] Júlia Miklasová, “Russia’s Recognition of the DPR and LPR as Illegal Acts under International Law,” Völkerrechtsblog, February 24, 2022, https://doi.org/10.17176/20220224-120943-0. [3] N. Kasianenko, “Internal legitimacy and governance in the absence of recognition: The cases of the Donetsk and Luhansk ‘People’s Republics,’” Ideology and Politics, 1(12), 116–130. [4] OHCHR, “Report on the Human Rights Situation in Ukraine,” May 15, 2014, https://www.ohchr.org/en/ohchr_homepage. [5] Dutch Safety Board, “Crash MH17, 17 July 2014,” October 13, 2015, https://onderzoeksraad.nl/en/onderzoek/crash-mh17-17-july-2014. [6] European Court of Human Rights, “Press Q&A – Ukraine and the Netherlands v. Russia,” July 9, 2025, https://www.echr.coe.int/documents/d/echr/press-q-a-ukraine-netherlands-russia-eng. [7] “Sam Papers No. 8/99 - The Loizidou Case: A Critical Examination By Zaim M. Necatigil,” https://www.mfa.gov.tr/the-loizidou-case_-a-critical-examination-by-zaim-m_necatigil_-november-1999.en.mfa. [8] European Court of Human Rights, “European Convention on Human Rights,” Council of Europe, November 4, 1950, https://www.echr.coe.int/documents/d/echr/convention_ENG. [9] European Court of Human Rights, “Guide on Article 1 of the European Convention on Human Rights,” Council of Europe, February 28, 2025, https://ks.echr.coe.int/documents/d/echr-ks/guide-on-article-1-obligation-to-respect-human-rights. [10] Banković and Others v. Belgium and Others, App. No. 52207/99, (December 12, 2001), https://hudoc.echr.coe.int/eng?i=001-22099. [11] Catan and Others v. The Republic of Moldova and Russia, App. Nos. 43370/04, 8252/05 and 18454/06, (October 19, 2012), https://hudoc.echr.coe.int/fre?i=001-114082. [12] Georgia v. Russia (II), App. No. 38263/08, (January 21, 2021), https://hudoc.echr.coe.int/fre?i=001-207757. [13] Ukraine and the Netherlands v. Russia, App. Nos. 8019/16, 43800/14 and 28525/20, (November 30, 2022), https://hudoc.echr.coe.int/fre?i=001-222889. [14] Annick Pijnenburg, “Ukraine and the Netherlands v. Russia: Taking Stock of the Latest Developments in the Case Law of the European Court of Human Rights on Extraterritorial Jurisdiction,” in European Yearbook on Human Rights 2023, ed. Gerd Oberleitner et al., European Yearbook on Human Rights (Intersentia, 2023), https://doi.org/10.1017/9781839704543.007. [15] Ibid. [16] Marco Longobardo and Stuart Wallace, “The 2021 ECtHR Decision in Georgia v Russia (II) and the Application of Human Rights Law to Extraterritorial Hostilities,” Israel Law Review 55, no. 2 (2022): 145–77, https://doi.org/10.1017/S0021223721000261. [17] Pijnenburg, “Ukraine and the Netherlands v. Russia.” [18] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. U.S.), Merits, Judgment, I.C.J. Reports 1986, p. 14, https://www.icj-cij.org/sites/default/files/case-related/70/070-19860627-JUD-01-00-EN.pdf. [19] Al-Jedda v. The United Kingdom, App. No. 27021/08, (July 7, 2011), https://hudoc.echr.coe.int/fre?i=001-105612. [20] Ukraine and the Netherlands v. Russia. [21] Ibid. [22] Ibid. [23] Pijnenburg, “Ukraine and the Netherlands v. Russia.” [24] William Schabas, “Aggression and International Human Rights Law,” in The Crime of Aggression: A Commentary, ed. Claus Kreß and Stefan Barriga (Cambridge University Press, 2016), https://doi.org/10.1017/9781139058360.014. [25] Ukraine and the Netherlands v. Russia. [26] Pijnenburg, “Ukraine and the Netherlands v. Russia.” [27] Tyrer v. The United Kingdom, App. No. 5856/72, (April 25, 1978), https://hudoc.echr.coe.int/fre?i=001-57587. [28] Samit D’ Cunha, “‘Hybrid Threats’, ‘Grey Zones’, ‘Competition’, and ‘Proxies’: When Is It Actually War?,” Humanitarian Law & Policy Blog, January 16, 2025, https://blogs.icrc.org/law-and-policy/2025/01/16/hybrid-threats-grey-zones-competition-and-proxies-when-is-it-actually-war/. [29] Marko Milanovic, “The European Court’s Admissibility Decision in Ukraine and the Netherlands v Russia: The Good, the Bad and the Ugly – Part I,” EJIL:Talk!, January 26, 2023. https://www.ejiltalk.org/the-european-courts-admissibility-decision-in-ukraine-and-the-netherlands-v-russia-the-good-the-bad-and-the-ugly-part-i/. [30]* Ukraine and the Netherlands v. Russia.* [31] Ibid. [32] Ibid. [33] Patrick Thornberry, “Article 1: Definition of Racial Discrimination,” in The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary, ed. Patrick Thornberry (Oxford University Press, 2016), https://doi.org/10.1093/law/9780199265336.003.0006. [34] Ukraine and the Netherlands v. Russia. [35] Ibid. [36] Ibid. [37] Allegations of  Genocide under the Convention on the Prevention and Punishment of  the Crime of  Genocide (Ukraine v. Russian Federation: 32 States intervening), Preliminary Objections, Judgment, I.C.J. Reports 2024, p. 360, https://www.icj-cij.org/sites/default/files/case-related/182/182-20240202-jud-01-00-en.pdf. [38] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Request for the Modification of the Order Indicating Provisional Measures of 26 January 2024, Order of  28 March 2024, I.C.J. Reports 2024, p. 513, https://www.icj-cij.org/sites/default/files/case-related/192/192-20240328-ord-01-00-en.pdf.