Report on the Judgment in Ukraine and the Netherlands v. Russia: Implications for Sustainable Development Goal 16

This report analyzes the judgment of the Grand Chamber of the European Court of Human Rights (ECHR) in the case of Ukraine and the Netherlands v. Russia. The analysis focuses on the judgment’s significant implications for the advancement of Sustainable Development Goal 16 (SDG 16), which aims to promote peaceful and inclusive societies, provide access to justice for all, and build effective, accountable, and inclusive institutions at all levels.

The Court’s Interpretive Framework: Strengthening the International Rule of Law (SDG 16.3)

The judgment clarifies the Court’s approach to applying the European Convention on Human Rights during armed conflict, reinforcing the international rule of law as mandated by SDG Target 16.3.

Harmonious Interpretation as a Foundation for Justice

The Court established a general approach to the application of Article 2 (Right to Life) in armed conflict, based on the following principles:

• The Convention remains applicable in situations of armed conflict.
• International Humanitarian Law (IHL) does not displace Convention guarantees.
• The Convention must, as far as possible, be interpreted in harmony with other rules of international law, in line with Article 31(3)(c) of the Vienna Convention on the Law of Treaties.

This commitment to harmonious interpretation ensures a coherent and predictable legal framework, which is a cornerstone for building strong institutions and providing access to justice (SDG 16).

The Role of Lex Specialis

The Court treats the principle of lex specialis as a tool for coordinated interpretation rather than a mechanism for regime displacement. This approach prevents legal fragmentation and promotes a holistic application of international law, contributing to the strength and accountability of international justice systems (SDG 16.3).

Application to the Right to Life: Reducing Violence and Upholding Accountability (SDG 16.1)

The Court’s substantive findings directly address the core objective of SDG Target 16.1: to significantly reduce all forms of violence and related death rates. By holding a state accountable for unlawful killings, the judgment reinforces the global commitment to protecting human life.

Violations of IHL as Breaches of the Right to Life

The Court determined that actions violating IHL also constituted a breach of the substantive limb of Article 2 of the Convention. This linkage is critical for ensuring accountability for violence in conflict zones.

1. Downing of Flight MH17: The Court found that the missile launch breached the IHL principles of distinction and precautions in attack. This violation of IHL was held to be a concurrent violation of Article 2 ECHR, affirming the right to life for civilian victims of conflict.
2. Attacks on Civilians and Extrajudicial Killings: The Court identified an administrative practice of extrajudicial killings of civilians and Ukrainian military personnel hors de combat. It found no evidence suggesting the use of force was justified under IHL, leading to the conclusion that Russia was responsible for a violation of Article 2.

These findings underscore the role of international courts in enforcing norms that reduce violence and protect vulnerable populations, directly contributing to the aims of SDG 16.1.

Unresolved Questions and the Future of SDG 16 Implementation

The judgment leaves open critical questions regarding the precise relationship between IHL and the Convention, the resolution of which will significantly impact the future implementation of SDG 16.

The Challenge of IHL-Compliant Killings

The Court did not have to resolve whether a killing that is fully compliant with IHL would automatically satisfy the requirements of Article 2 ECHR. This remains a pivotal unresolved issue for defining the boundaries of lawful state action in conflict and ensuring robust accountability mechanisms.

Competing Interpretive Pathways for State Accountability

Future cases will require the Court to choose between two distinct approaches, each with different implications for state accountability and institutional transparency (SDG 16):

• The Hassan Approach: This would involve reading an implicit exception into Article 2 for IHL-compliant killings during armed conflict, similar to the Court’s approach to detention in Hassan v. UK.
• The Derogation Approach: This would require a state to formally derogate from Article 2 under Article 15 of the Convention to lawfully carry out acts of war. This path is supported by the text of Article 15(2), which explicitly mentions “deaths resulting from lawful acts of war,” and would enhance transparency and scrutiny.

The choice of pathway will determine the procedural and substantive requirements for states engaged in armed conflict, directly affecting the strength of institutions designed to protect human rights.

Conclusion: Broader Implications for Global Peace and Justice

The judgment in Ukraine and the Netherlands v. Russia is a significant step in clarifying the application of human rights law in armed conflict, reinforcing the principles of SDG 16. By affirming that violations of IHL can constitute violations of the right to life, the Court strengthens the international legal architecture for accountability.

Future Considerations for a Comprehensive Legal Framework

Key issues remain unresolved, including:

• The Standard for IHL-Compliant Force: Whether lethal force consistent with IHL is always considered non-arbitrary under human rights law, or if additional human rights requirements might apply.
• The Relevance of Jus Ad Bellum: The Court did not address whether a state’s engagement in an act of aggression could, in itself, constitute a violation of the right to life under the Convention.

Resolving these legal questions is essential for building a comprehensive framework that promotes peace, ensures justice for victims, and strengthens the institutions tasked with upholding the rule of law. This work is fundamental to achieving the vision of SDG 16 and the broader 2030 Agenda for Sustainable Development.

SDGs Addressed in the Article

SDG 16: Peace, Justice and Strong Institutions

• The article is fundamentally concerned with the principles of justice, the rule of law, and the role of international institutions in addressing violations of human rights during armed conflict. It analyzes a judgment by the European Court of Human Rights (ECtHR) concerning unlawful killings and the application of international law, which are central themes of SDG 16. The discussion revolves around holding a state (Russia) accountable for its actions in an armed conflict, directly engaging with the goal of promoting peaceful and inclusive societies for sustainable development, providing access to justice for all, and building effective, accountable, and inclusive institutions at all levels.

Specific Targets Identified

SDG 16: Peace, Justice and Strong Institutions

1. Target 16.1: Significantly reduce all forms of violence and related death rates everywhere

   • The article directly addresses this target by focusing on the “right to life” and the circumstances of its violation. It discusses multiple instances of lethal violence, including the “downing of MH17,” “attacks on civilians,” and “extrajudicial killing of civilians and Ukrainian military personnel hors de combat.” The core legal question is whether these “killings” and “deprivation of life” were unlawful, which is a direct effort to scrutinize and ultimately reduce violence and related deaths.

2. Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all

   • The entire article is an analysis of the promotion of the rule of law at the international level. It examines how the ECtHR interprets and applies legal frameworks like the European Convention on Human Rights (ECHR) and International Humanitarian Law (IHL). The case itself, Ukraine and the Netherlands v Russia, is an example of states seeking to “ensure equal access to justice” for victims of alleged violations. The text highlights the Court’s effort to create a “harmonious interpretation” of different bodies of international law, which is a key aspect of strengthening the international rule of law.

3. Target 16.a: Strengthen relevant national institutions, including through international cooperation, for building capacity at all levels… to prevent violence and combat terrorism and crime

   • The article discusses the role and jurisprudence of several key international institutions, namely the European Court of Human Rights (ECtHR), the International Court of Justice (ICJ), and the UN Human Rights Committee. By analyzing their judgments and interpretive approaches (e.g., the ECtHR’s approach to lex specialis and the HRC’s General Comment 36), the article demonstrates how these bodies function to strengthen the global legal framework. These international institutions hold states accountable and, in doing so, reinforce the standards that national institutions are expected to uphold, thereby contributing to the prevention of violence and the establishment of accountability.

Indicators for Measuring Progress

SDG 16: Peace, Justice and Strong Institutions

1. Indicator related to Target 16.1 (e.g., 16.1.2: Conflict-related deaths per 100,000 population)

   • The article provides qualitative data for this indicator by discussing specific events that cause conflict-related deaths. It explicitly mentions the “downing of flight MH17,” “killings of civilians,” and “killings of… soldiers hors de combat.” The Court’s finding of an “administrative practice in violation of Article 2 of the Convention of extrajudicial killing” serves as a formal acknowledgment of these deaths, which can be used as a measure of violence.

2. Indicator related to Target 16.3 (e.g., 16.3.3: Proportion of the population who have experienced a dispute… and who accessed a formal… dispute resolution mechanism)

   • The article itself is an analysis of a formal international dispute resolution mechanism in action. The case of Ukraine and the Netherlands v Russia before the ECtHR is a direct instance of states accessing a high-level judicial body to resolve a dispute concerning violations of international law. The legal proceedings and the resulting judgment are tangible evidence of this indicator being met at the international level.

3. Indicator related to Target 16.a (e.g., 16.a.1: Existence of independent national human rights institutions in compliance with the Paris Principles)

   • While the article focuses on international bodies, their function as described implies a measure of institutional strength and independence. The detailed analysis of the ECtHR’s reasoning, its reference to the ICJ, and the UN Human Rights Committee, and its ability to issue judgments on powerful states, serves as an indicator of the existence and effectiveness of independent judicial and quasi-judicial institutions that work to uphold human rights and the rule of law, complementing and strengthening national systems.

Summary Table

Source: ejiltalk.org