Corps de l’article

A necessary consequence of Russia’s invasion of Ukraine on 24 February 2022, which was initially labeled a Special Military Operation, is accountability for human rights violations committed, especially given its gravity. Numerous processes are underway to establish accountability in different contexts, notably before the International Court of Justice (ICJ) for war crimes.[1]

This study analyzes the role of Strasbourg judges in determining Russia’s responsibility from the perspective of the European Convention on Human Rights[2] (ECHR) for the violations committed. Following Russia’s expulsion from the Council of Europe effective as of 16 March 2022,[3] the European Court of Human Rights (ECtHR) indicated in a declaration on 22 March 2022, that it retains its competence to hear claims against that State relating to events occurring until 16 September 2022, the date on which Russia ceased to be a Party to the ECHR (following the expiry of the six-month period provided for in Article 58).[4] The Committee of Ministers, for its part, has indicated that it will continue to supervise the execution of all judgments against Russia.[5]

Returning to the issue being studied, two points deserve to be addressed in terms of the role of the ECtHR in relation to these events, which explain why this paper focuses on Russia’s responsibility in the context of this conflict.[6] The first concerns the extraterritorial application of the ECHR, with the consequent responsibility of that State for acts committed outside its territory, and the second concerns the guarantees that the norms of international humanitarian law (IHL) are respected.[7]

In fact, the Russian aggression against Ukraine represents a further opportunity to analyze both issues, including in light of earlier cases involving Russia, either with other States, such as Georgia v Russia (II) (Georgia II),[8] or with Ukraine itself, such as Ukraine v Russia (Re Crimea).[9] The Special Military Operation as such has already had repercussions in Strasbourg, since several applications were filed, notably the Inter-State Application filed by Ukraine on February 28, 2022, which gave rise to the ECtHR’s decision to adopt interim measures, which we will return to later.[10]

I. Russia’s Responsibility for Its Intervention in Ukraine from the Perspective of the European Convention on Human Rights

The question of the extraterritorial application of the ECHR, resulting from the interpretation of the concept of jurisdiction as set out in Article 1,[11] has never been called into question in Strasbourg.[12] However, the case law generated has been subject to criticism, both internally and externally, for a certain incoherence and casuistry which, ultimately, seem to be due to the Strasbourg judges’ sensitivity in certain complex cases, both legally and politically. The key aspects of the ECtHR’s approach to this issue and its application to the current scenario of the Russian invasion of Ukraine will be discussed below.

A. Extraterritorial Application of the European Convention on Human Rights from the Perspective of the European Court of Human Rights

The approach of the organs of the Convention system to the extraterritorial application of the ECHR remained rather straightforward until the beginning of the 21st century, based on the idea of the effective control of the State party over an area or persons outside its territory, with the judgment of the Grand Chamber in the Loizidou case[13] as a major reference point. With the turn of the millennium, several factors have led to an increase in the number of cases in Strasbourg concerning the application of the ECHR to acts of States Parties outside their territory. This period has also seen an increase in the complexity of many cases, notably relating to armed conflicts, either because of the participation of States Parties in military interventions outside of the territory of the Member States of the Council of Europe, especially in the context of the fight against terrorism after 9/11, or because of disputes related to a number of new Member States and their relations.[14] This is where the Russian Federation comes to the fore, whose Special Military Operation in Ukraine is, for the moment, the latest of these conflicts to end up before the Strasbourg judges.

It is precisely in these particularly complex cases that the ECtHR’s approach to the extraterritorial application of the ECHR is subject to criticism for inconsistency due to excessive deference to political considerations, seemingly arising from a need to safeguard certain balances in order not to be hampered in its functioning. The ECtHR has been seen, in a number of cases, as trying to promote ad hoc approaches that facilitate the acceptance and proper enforcement of its judgments by respondent States and certain other States concerned to the detriment of the clarity and coherence of its jurisprudence.

However, the search for necessary balances manifests itself in all the different “dialogues” which take place within the system, both those inherent in the ECtHR proceedings and those of the Committee of Ministers when ensuring that States abide by judgments rendered against them and when examining the proper functioning of the ECHR system more generally. The Committee’s support has been very visible in the supervision of the execution of the ECtHR judgments, where it has on several occasions foregone the natural tendency to rely on consensus[15] (evidently the easiest way to get execution); and used the voting rules to impose respect for the obligation to abide by the ECtHR’s judgments; as well as even engaged infringement proceedings against recalcitrant States to ensure compliance.[16] Similar support has been given by other bodies of the Council of Europe, notably by the Parliamentary Assembly through its own execution monitoring. In view of the unfaltering support given, one may well wonder whether the ECtHR’s perceived deference is really warranted, especially if weighed against the basic interests underpinning the system, notably that of protecting European public order.

A paradigmatic example, indeed, the first of the perceived importance of the political context of the ECtHR’s response to certain complex cases is the inadmissibility decision in Banković and others v Belgium and others (Banković),[17] which represented a certain departure from previous positions taken by the ECHR bodies with its insistence on territorial control. The political connection results from the adoption of this decision just 3 months after the 9/11 “attack” and with States parties already heavily involved in the renewed global fight against terrorism which followed this “attack”. In this context, the risk could not be ruled out that a decision in favor of the extraterritorial application of the ECHR would have negatively affected the consideration due to the ECtHR by the governments of the States Parties concerned and a large part of their citizens, who could interpret it as a curb from Strasbourg on the reaction to the terrorist threat.[18]

The perception of the political contexts and the need to safeguard certain balances, considered by many to underlie the criticisms of Banković, remains very present. The fears regarding the lack of coherence of the Court’s approach to the scope of states extraterritorial jurisdiction have thus not been fully dissipated; and this notwithstanding the strong support demonstrated by the Committee of Ministers for the full execution for all judgments, including those which are or have been very unpopular in respondent States, as well as in other States.[19] Admittedly, there has been a certain positive evolution in the ECtHR’s subsequent case law, which has qualified some of its more controversial statements in Banković. Still there has been no shortage of other cases in which attempts by the Strasbourg judges to reconcile different interests at stake in an ad hoc manner have been perceived.

This is where Russia appears once again, especially because of its importance (at the time) as a State Party and because of the Committee of Ministers ambition to maintain the dialogue necessary for an adequate execution of the ECtHR’s judgments.[20] The special need to safeguard balances in relation to this State may well have been one of the reasons behind the ECtHR’s position in Georgia II. Another may have been the absence of necessary resources in the Court, whose budget had not increased for a long period of time, to operate, which led to the conclusion that the victim was subject to the jurisdiction of the United Kingdom.

Regarding the practical difficulty of gathering evidence related to an ongoing conflict and the ensuing consequences for the question of jurisdiction, some special comments are required. This difficulty was said to result from the large number of victims and the procedural complexity of fulfilling the ECtHR’s function—numerous incidents, a large volume of evidence and difficulty in establishing the circumstances.[21] However, these circumstances, which have also been invoked in previous cases before the ECtHR have not so far led the Convention organs to decide in the same direction. Indeed, there were ways out, as pointed out by Judge Chanturia in his partly dissenting opinion. The European Commission in its time chose the model of “illustrative” cases, for example, in Cyprus v Turkey.[22] It is probably fair to say that the resources available for this kind of fact-finding has largely decreased since, especially in view of the ECtHR’s very difficult financial situation at the time of Georgia II and since the ECtHR’s budget has not been increased for many years. As a result, the recourse to friendly settlements and unilateral declarations increased rapidly to allow the handling of large numbers of new applications in a simplified manner. The budgetary situation might partly explain the major divergence in the opinions we have seen in treating this topic.

B. Further Considerations Relating to the Reasons Underlying the Decision of the European Court of Human Rights in Georgia v Russia and its Application to the Invasion of Ukraine

In view of the above, it may be noted that it does not seem unreasonable to think that, as in Banković, the context surrounding Georgia II may be on the basis of the position adopted by the ECtHR in this case.

Indeed, not only was the majority’s conclusion of the Court met with some contestation from within the Court, reflected in the separate opinions, concurring or dissenting, submitted by various judges, but the very text of the judgment seemed to acknowledge the flawed, or at least limited, the nature of that response. It should be recalled that there were as many as 9 separate opinions submitted, individually or collectively, by 9 of the ECtHR judges.

Among these were the dissenting opinion of Judge Lemmens, which ruled out the position of the majority that the very nature of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos not only means that there is no effective control over the area, but also excludes any form of State agent authority and control over individuals was a valid excuse for rejecting the extraterritorial application of the Convention.[23]

However, as noted above, even the majority seems to implicitly admit that, in reality, the ECtHR opted for this position in order to avoid hearing the merits of the case. This is clear from the explicit recognition of the judgment of the unsatisfactory nature of the limitation of the notion of jurisdiction, both for the victims and for the States in which the violations are committed.[24] This explicit recognition seems to be another reason to revisit the approach adopted by the ECtHR.[25] Indeed, from the point of view of the victim’s protection, it seems illogical to rule out the ECtHR’s capacity to exercise jurisdiction at a moment during which numerous violations can be committed. In reality, the acts carried out in the active phase of hostilities originated in the planning and adoption of decisions made by military authorities, which per se is an exercise of public power and, consequently, of jurisdiction.[26]

In light of these arguments, it seems clear that the Court’s approach is based on the complexity of the issue at hand—especially the difficulties faced by the ECtHR in fulfilling its functions—as well as the political context, and especially on Russia’s involvement. The perception remains that the importance of this State in the ecosystem of the ECHR has conditioned the Court to attempt to safeguard this fragile balance. This political sensitivity in the ECtHR’s decision has led to question whether the majority’s position would have been similar if the extraterritorial intervention had been carried out by Georgia instead of Russia.[27]

Further arguments against a strict reading of the Georgia II judgment appear to emerge from the 28 February 2022 application requesting the urgent adoption of interim measures against Russia in relation to the massive human rights violations being committed by its troops during the military aggression against the sovereign territory of Ukraine.[28] To prevent such violations, and in accordance with Rule 39 of the Rules of the Court,[29] the ECtHR decided during the fighting to instruct Russia to refrain from military attacks against civilian targets and to immediately ensure the safety of medical facilities, personnel and emergency vehicles in the territory under attack or besieged by its troops.[30] A few days later, on 4 March 2022, the ECtHR, in response to numerous individual requests for interim measures, ordered Russia to abide by its commitments under the ECHR, in ensuring the unimpeded access of the civilian population to safe evacuation routes, health, food and other essential supplies, as well as rapid and unrestricted access to humanitarian aid, including humanitarian workers. On 1 April the ECtHR recalled these interim measures and asked Russia to allow civilians to seek refuge in safe regions within Ukraine.[31] Finally, on June 23, Ukraine’s application to the ECtHR was filed, alleging Russia’s responsibility for numerous violations of the ECHR such as Articles 2, 3, 4, 5, 8, 9, 10, 11, 13 and 14 as well as Articles 1 and 2 of Protocol 1, and Articles 2 and 3 of Protocol 4.[32]

This approach cannot have been based on the Grand Chamber’s judgment in Georgia II. If followed, its restrictive approach would have led to a finding that many of the victims of these acts during this phase of active fighting would not have been subject to Russia’s jurisdiction. Consequently, Russia’s obligations under the Interim Measures would not have extended to them. But there is no indication of any such limitation.

One additional element may further help to understand the divergences of the ECtHR’s position on the extraterritoriality issue taken by the Court in the Special Military Operation decision and the Georgia II judgment. This divergence could be explained by the departure of Russia from both the Council of Europe and the ECHR system itself, including the Committee of Ministers in the context of the ECtHR’s mechanism for controlling the enforcement of judgments. Even if the Committee continues to supervise the execution of judgments in Russian cases and Russia is expected to provide an action plan and clarifications, the fact is that Russia no longer has the right to vote in the Committee.

In other words, the ECtHR would appear to be relieved of the need to safeguard the delicate balances as referred above. In contrast, in Georgia II it could be argued that Strasbourg had to deal with the complex fact findings and other work necessary for usefully assuming jurisdiction over the phase of active hostilities.

As to the unprecedented distinction made by the ECtHR, between violations occurring during the active phase of hostilities of an international armed conflict and those taking place in the subsequent occupation phase, after the cessation of hostilities,[33] one may note that no discussion was engaged as to the pertinence of the positions adopted in Cyprus v Turkey in the first interstate cases launched by Cyprus following Turkey’s military intervention in 1974.[34] In these cases, the Committee of Ministers, under its former decision-making powers (original Article 32 of the Convention), accepted the Commission’s position that the ECHR did apply, and had indeed been violated, also during the “phases of actual fighting”.[35] The ECtHR also did not take its own recent conclusion in the Hassan[36] case into account (at least not for this issue).[37] In this case, the ECtHR had held that upholding the UK’s argument to exclude the extraterritorial application of the ECHR during the active phase of hostilities in an international armed conflict would run counter to the jurisprudence of the ICJ, which provides for the simultaneous application of international human rights law (IHRL) and IHL.[38] Accordingly, the ECtHR inferred the application of the ECHR in the context of an armed conflict in which IHL also considered the necessity of ensuring that Russia enforced its judgments and that the normal functioning and prestige of the entire system would not be negatively affected. In the Special Military Operation situation, upholding these balances does not seem necessary given that Russia’s pressure means inside the organization have disappeared due to its exclusion.

The negative element, however, would be the gloomy outlook regarding any enforcement by Russia of existing or future judgments. Obligations incurred would, however, survive and could well become executable at some point in the future with a new government, or through the freezing of assets. Judgments will also make progress in establishing the extension of the obligations imposed by the ECHR to the activities of its States parties abroad. A favorable indication of this new turn in its jurisprudence can be seen in the adoption of the aforementioned provisional measures by the ECtHR.

II. The Role of the European Court of Human Rights in Monitoring International Humanitarian Law and its Projection on Russia’s Activity in Ukraine

The second part of this study focuses on the role that could be played by the ECtHR as a monitoring body to ensure the compliance of Russia’s actions with its obligations under IHL in relation to the conflict in Ukraine. To this end, we will begin by clarifying the relationship between IHL and IHRL and notably the place of bodies monitoring compliance with the IHRL in IHL. We shall then focus on the case of the ECtHR, especially regarding the acts committed by Russia during its Special Military Operation.

A. The Relationship Between International Humanitarian Law and International Human Rights Law and the Role of International Human Rights Tribunals

IHL and IHRL are two legal frameworks that share similar objectives, such as the protection of the individual, but they certainly differ in terms of their scope of application. In contrast to the general nature of the IHRL, IHL is a legal framework only applicable in times of armed conflicts. Some international tribunals have taken the view that IHRL can also be applicable in the context of armed conflicts. The ICJ, for example, in its Opinion of 9 July 2004, in the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[39], recalled that the protection offered by human rights conventions does not cease in times of armed conflict, except through the effect of provisions for derogation.[40]

In a similar approach, certain regional human rights courts have also been in favor of maintaining the obligations arising from human rights conventions in the event of armed conflicts, as did the old ECHR Commission in the first Cyprus cases lodged in 1974 and 1975 and subsequently the present ECtHR in the Hassan case.[41] For its part, the Inter-American Court of Human Rights (IACHR), in its ruling of February 4, 2000, in the Las Palmeras v Colombia case; in addition to affirming the applicability of the American Convention on Human Rights (ACHR)[42] for the case at hand, specified its role noting its competence to judge the compatibility of State’s conduct with the ACHR, in times of peace or armed conflict.[43]

The consequence of this, beyond some nuances in the case of the ECtHR, such as its non-jurisdiction during the active phase of hostilities in an international armed conflict, is the possibility that the same conduct, carried out in a context of armed conflict, can give rise to violations under both areas of international law and that non-compliance must be examined accordingly. This interconnection between IHL and IHRL has both positive and negative elements. Among the latter, one can mention that the different levels of protection, especially of certain rights, are frequently a consequence of the context in which the events complained to take place. A major divergence between those two areas of international law can be illustrated with the right to life, as IHL is seen as a more permissive regime to use deadly force compared to IHRL.[44]

One of the positive aspects of the interconnection between the two legal frameworks is that it raises IHRL standards as regards the threshold for a derogation from the ordinary level of human rights protection in case of a public danger threatening the institutions or the population. IHL here maintains a more restricted approach, limiting the possibility of derogation to the existence of an armed conflict.[45]

However, one of these positive aspects is particularly relevant for this paper. It is the possibility of filling, through the IHRL, an important gap in IHL, namely the more limited protection accorded by international bodies responsible for monitoring State compliance with its norms. This shortcoming would be resolved through the role that can be played in this respect by the bodies that monitor compliance with the obligations imposed on these States by human rights conventions, in particular the regional courts.[46]

Nonetheless, the possibility of filling the absence of specific bodies for monitoring compliance with IHL through regional courts is far from being ideal. In this regard, it should be recalled what the IACHR pointed out in the Las Palmeras v Colombia case, in the sense that the guarantee of respect of IHL norms does not fall within their competence ratione materiae.[47] In other words, the function of these tribunals is in no way to monitor respect for IHL by the States parties to the human rights conventions in the framework of which they were created. In any case, human rights courts could indirectly monitor respect for IHL by integrating this legal framework in their reasoning when assessing the possible violations of human rights conventions under which they have jurisdiction.[48]

B. The Role of the European Court of Human Rights in Monitoring International Humanitarian Law and its Projection on Russia’s Activity in Ukraine

Having clarified the role of regional human rights courts in relation to IHL, we will focus on the specific case of Strasbourg, first in attempting to analyze the ECtHR’s approach to these areas of international law, and then looking at its possible role in relation to Russian’s actions in Ukraine.

In this regard, it should be noted that Strasbourg has been increasingly confronted with the problem of interaction between IHL and IHRL and has increasingly made explicit references to the former, although, as we shall see, with certain limitations depending on the conflict in question. In the first cases, Strasbourg judges implicitly relied on the norms and principles of IHL without referring to it expressly in cases where violations of IHL and of the ECHR were allegedly committed.[49] An example of this is the evocation by the ECtHR of the principles of distinction and proportionality in the Güleç[50] and Ergi[51] cases; in the former case, the Court judged that law enforcement officers used an excessive amount of force in light of the objective sought to be achieved,[52] and in the latter case, the Court stated that insufficient precautions had been taken to protect the civilian population.[53] A similar approach, in relation to Russia, can be noted in the case of Isayeva, Yusupova and Bazayeva, concerning the shelling of a civilian convoy in the context of hostilities in Chechnya in 1999.[54]

Progressively the ECtHR is evolving towards more explicit consideration of IHL in its decisions. This evolution can be seen in cases such as Varnava, which states that Article 2 of the ECHR should be interpreted as much as possible in the light of the general principles of international law, including those of IHL.[55] A similar approach has been taken by the Court in various cases, especially in relation to the action of the United Kingdom in Iraq. In this regard, the Al-Jeddah case is of interest, as the ECtHR clearly refers to the obligations of the Occupying Powers under IHL.[56]

The Hassan case is considered the high point of this evolution; as the ECtHR itself recalled, it was the first time in which a defendant State requested the non-application of Article 5 of the ECHR or its interpretation in the light of IHL obligations to detain.[57] In this respect, the judgment recalls the integration of IHL norms among the rules of international law in harmony with which the ECHR must be interpreted[58] in accordance with Article 31.3.(c) of the Vienna Convention on the Law of Treaties.[59] It is pointed out, on the one hand, that the lack of a formal derogation in accordance with Article 15 of the ECHR does not prevent IHL from being taken into account when interpreting Article 5; on the other hand, in view of the simultaneous application of IHL and the ECHR, it is necessary to accommodate the grounds for detention in Article 5 (a) to (f) as provided under IHL in relation to prisoners of war under the Third Geneva Convention[60] and civilian internees under the Fourth Geneva Convention.[61]

However, the risk of such an interpretation of the ECHR based on IHL is noted in the partially dissenting opinion to that judgment. For the dissenting judges, in view of the differences between IHL and IHRL, priority should be given to the ECHR provision when these do not lend themselves to automatic assimilation with the provisions of IHL.[62] They mention derogation under Article 15 of the ECHR as the only legal mechanism for States parties to apply IHL’s rules on detention without violating Article 5(1) of the ECHR.[63]

In any case, from this evolution in terms of the approach to IHL since Strasbourg, a summa divisio can be identified, which takes as its distinguishing criterion that of the international or internal nature of the conflict in question. Thus, the ECtHR expressly turns to IHL in cases such as Hassan, looking at the phase of active hostilities during an international armed conflict, but adopts a different approach in cases of non-international armed conflict, such as in the Kurdish or Chechen cases.[64] The reason for this distinction is explained by the Steering Committee for Human Rights, which points to the additional complexity of transferring the legal frameworks of IHRL and IHL as regards international armed conflicts to non-international armed conflicts. Several aspects are pointed out, including the reluctance of States parties to the ECHR to qualify a situation on their own territory as a non-international armed conflict. The explicit reference to IHL in a Strasbourg decision could be interpreted as an implicit recognition of a non-international armed conflict and therefore seen as an interference by the ECtHR in the internal affairs of a State — a risk that does not present itself in the cases of international armed conflicts. In addition, there are other legal arguments in favor of caution in making such a transfer, such as the fact that the rules applicable in non-international armed conflicts may be difficult to determine even if they are largely derived from customary international law.[65]

This evolution took a turn with the Georgia v Russia (II) case during which the respondent State pleaded that, without prejudice to the legitimacy of its military response from the perspective of international law and IHL, the ECtHR lacks jurisdiction to assess its compliance with this legal framework.[66] In fact, the ECtHR seems to follow this line when it supports its conclusion regarding the lack of jurisdiction to hear Russia’s conduct during the active phase of hostilities, in addition to the arguments noted above, on the fact that these situations are mainly regulated by norms other than the ECHR.[67]

However, some comments should be made in this regard. Firstly, the exclusion of its own jurisdiction during the active phase of hostilities from which had not occurred in previous cases before the ECtHR as can be recalled from the Hassan case. While the Court recalls that such types of situations are regulated under IHL, it seems to forget the relative weakness of the bodies set up to control compliance with the rules of this area of international law, which makes attempts to repair violations suffered by the victims very difficult.

In any event, the position adopted by the ECtHR in this case is perceived as an attempt to circumvent criticism received in previous cases, in which the interpretation of the ECHR in harmony with IHL was seen as a dilution of the level of protection exercised by the ECtHR. In this respect, one can again point to the Hassan case as an example, where the criticism came from the judges themselves, and more specifically from Judge Spano’s dissenting opinion, regarding the interpretation of Article 5 of the ECHR. This new approach by the ECtHR is seen as an attempt to avoid finding itself in the same position again, although this time regarding Article 2, given that the protection of the right to life under IHL is drastically different than the ECHR.[68]

This impression of a certain break by the ECtHR in this case with respect to previous positions can also be perceived in its interpretation, already noted above, that the usual non-recourse by States of Article 15 of the ECHR, with the possibility of derogating from rights, when they act in the context of armed conflicts of an international character, is interpreted as meaning that they do not consider themselves bound by the ECHR in such cases.[69] With this approach, the ECtHR seems to contradict what was stated in the Hassan case, in which it is considered that the modification of the commitments imposed on States parties by the ECHR cannot be presumed, but must be clearly stated to avoid that not resorting to this article is interpreted rather as an advantage, releasing that State from its obligation to comply with the ECHR, and exonerating it from responsibility if it does not.[70]

The consequence of this new pronouncement by the ECtHR is the confirmation of its non-recourse to IHL in the case of international armed conflicts, but adding a new nuance, such as the commission of acts during the active phase of hostilities.[71] This establishes a double standard that is only justified by the apparently legal, but in fact mainly political, complexity of this type of case, as pointed out by the Steering Committee for Human Rights, and the necessary balance that the ECtHR is obliged to strike.

These developments allow a similar conclusion to be drawn regarding the role of the ECtHR in relation to the control of Russia’s compliance with IHL during the invasion of Ukraine to the role noted regarding the extraterritorial responsibility of that State for these acts. If the ECtHR were to follow its own jurisprudence, namely Georgia v Russia (II), it would refrain from referring to IHL as an instrument of interpretation of the ECHR, given that, as noted above, these acts take place in the active phase of hostilities. This does not preclude the possibility that the change of context, and especially Russia’s exit from the Council of Europe and the ECHR system, cannot be considered by the ECtHR as factors resulting in the existence of a different political context that would allow it to make other considerations.

But even in this case, it should not be forgotten that its approach to IHL will never equate to a monitoring body ensuring compliance with this body of law. Rather, the ECtHR will probably continue to use IHL as a legal framework to be interpreted with the obligations that the ECHR imposes on States.

This conclusion may be disappointing with regard to the monitoring of respect of IHL, but in any case, it does not seem realistic to place on the shoulders of the judicial bodies for the protection of human rights, and in particular on those of the ECtHR, the responsibility for filling the void created by the States themselves when negotiating the instruments in which IHL is articulated, specifically the lack of judicial bodies to control its application. In this sense, it should be borne in mind that it is this inaction on the part of the States that seems to leave no other option than to turn to bodies that were not created for this purpose and whose competence does not allow them to rule on such a violation in order to obtain redress for violations of IHL. In other words, although the activity of the ECtHR makes it possible to make violations of this area of international law visible, it would be unrealistic to think that this would definitely fill this evident shortcoming.

***

The application of the European system for the protection of human rights is one of the issues of international law to which the impact of the Russian invasion of Ukraine extends. These events allow us to revisit and develop two aspects of this application: that of the extension of the responsibility of States parties under the ECHR for acts beyond their territory and that of the ECtHR taking IHL into account, in relation to which the Strasbourg case law has not been free of criticism.

In relation to the first of these aspects, this development, understood as progress according to the ECtHR, is the result of the change of scenario that has occurred on this occasion, specifically Russia’s exit from the Council of Europe and the different scenario that this creates in relation to the balances that the ECtHR must safeguard in order to preserve its functioning. In this respect, it may be thought that, although this makes it difficult, not to say illusory, to think of the enforcement of Strasbourg judgments, it gives the ECtHR the possibility of making progress in clarifying the extension of the obligations imposed by the ECHR to acts carried out by states outside their territory.

Regarding the application of IHL, this same change of scenario offers the ECtHR the opportunity to put an end to the dichotomy between the active phase of hostilities and the occupation phase in the context of a conflict, which is difficult to justify from the perspective of the protection of human rights. All of this without forgetting the role that the ECtHR, as an organ of the IHRL, must play in this respect in relation to the control of IHL, which, as has already been pointed out, cannot go beyond an indirect control of IHL by integrating it into the reasoning of the ECHR.