Introduction
The European Court of Human Right’s (ECtHR) recent judgment in Ukraine and the Netherlands v. Russia marks a significant step forward for the application of human rights law during times of conflict. The landmark judgment – passed on July 9th, 2025 – covers a multitude of issues, not least the application of human rights law to conflict-related sexual violence (CRSV). The Court’s willingness to address CRSV, and to do so in a manner that
App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025).
aligns with both international humanitarian law (IHL) and feminist theory, is a positive step towards greater accountability for these crimes.
Background
The inter-state case concerns the actions of the Russian Federation in Ukraine since the annexation of Crimea in 2014. The Ukrainian Government has lodged applications concerning alleged systemic violations of the European Convention on Human Rights (ECHR) in its territory since 2014. In 2020, the Dutch government filed an application relating to the downing of the Malaysia Airlines flight MH17 over eastern Ukraine in 2014, which resulted in the death of 196 Dutch citizens. The Court addressed these applications jointly.
The judgment totals over 500 pages, covering a broad range of alleged human rights violations relating to the actions of Russian troops and Russian-backed separatist entities in Ukraine. The applicants claimed violations of Article 2 in relation to the deaths from the downing of MH17, Russian troops’ indiscriminate attacks on civilians, and extrajudicial killings. The applicants also alleged that the treatment of detainees, use of torture, widespread sexual violence, and the suffering caused to relatives of victims were violations of Article 3. Among other things, the Court also considered violations of the right to respect for private and family life (Article 8) and the right to freedom of religion (Article 9).
Although Russia ceased to be a party to the ECHR in September 2022, the Court retains residual jurisdiction over violations that occurred before Russia’s withdrawal from the Convention. A possible shortcoming of the case was Russia’s refusal to cooperate with the Court and its failure to submit any evidence or arguments in its defence. The Court was explicit in its attempts to include Russia in the proceedings, but it leaves the judgment open to criticisms that there was no equality of arms between the parties. On the evidentiary side, the Court could only consider one side of the picture; however, the substantial number of third-party interventions and reports of domestic and international non-governmental organisations (NGOs) can be argued to have filled this gap.
Russia’s jurisdiction over Ukrainian citizens
As a crucial first step, the Court confronted its previous case law on the issue of a state’s extraterritorial jurisdiction during wartime. For a state to owe obligations towards any person – including persons who are not a citizen of a state – that state must have jurisdiction over those persons or the place in which they are living (CCPR, paragraph 10). Jurisdiction under international human rights law (IHRL) requires that a state has effective control over a territory, which can be either spatial, personal or functional. The requirement of effective control has proved a challenge for human rights courts in the context of a State’s extraterritorial wartime actions. Previously, the Court found that effective control cannot be established during the “context of chaos” that results when two enemy military forces fight precisely to establish control over an area.
Georgia v. Russia (II) App no. 38263/08 (ECtHR, January 21st, 2021) 126.
In Ukraine and the Netherlands v. Russia, the Court revised this approach significantly by narrowing the scope of its reasoning in Georgia v. Russia (II). The judgment suggests that this context of chaos is a fact-specific assessment, as opposed to a blanket assumption in cases of active military conflict. The Court noted that the nature of the Russian military attacks in Ukraine between 2014 and 2022 were “carried out with the deliberate intention and indisputable effect of assuming authority and control…over …Ukraine”. It stated that this is “wholly at odds with any notion of chaos”. It further noted that Russia exercised authority and control over individuals within Ukrainian territories affected by its military attacks.
This development should be welcomed due to its potential to expand the scope of post-conflict justice and human rights scrutiny of States’ wartime actions. Given that judicial mechanisms for enforcing IHL are limited – for example, by prosecutorial strategies and political considerations – this is a key development. Although the bars to bringing a claim under the ECtHR are high – with requirements to exhaust domestic remedies and strict time limits for bringing a claim – human rights law is free of certain constraints of IHL and international criminal law (ICL) and empowers individuals to bring claims for human rights violations. This differs from IHL and ICL, where trials depend on prosecutorial decision-making and the often limited ability to arrest perpetrators. Expanding the ECtHR’s jurisdiction to cover active conflict should be recognised for its potential to improve post-conflict accountability with a more victim-focused approach.
The interventions by States such as France and the United Kingdom, which argued for the maintenance of the Georgia v. Russia (II) status quo, suggest that this move will be unpopular amongst certain states. Some States prefer lower levels of scrutiny of their military operations abroad and fear the ECtHR hanging over their military decision-making. It remains to be seen whether there will be political pressure for the Court to limit the scope of this jurisdiction test to analogous situations of illegal wars of aggression. Further judgments by the Grand Chamber of the ECtHR would be needed on different active wartime scenarios to ascertain how limited the Court’s expansion of extraterritorial jurisdiction is.
Harmonisation of IHL and IHRL
The Court’s emphasis on the harmonisation of international law standards is also remarkable. The judgment aligns the application of IHRL in wartime with the provisions of IHL and highlights the use of IHL to aid the interpretation of the Convention when necessary. Again, this represents a departure from prior Strasbourg jurisprudence. The Court has previously rejected lex specialis arguments relating to the role of IHL in armed conflict situations but has also suggested that active hostilities are predominantly governed by other legal norms, specifically IHL and the law of armed conflict. This position was contradictory and
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 361.
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 361.
Hassan v. the United Kingdom App no. 29750/09 (ECtHR, September 16th, 2014) 77.
Georgia v. Russia (II) App no. 38263/08 (ECtHR, January 21st, 2021) 141.
unhelpful, leading the Court to refrain from engaging in rigorous assessment of human rights violations during times of conflict.
In contrast, in Ukraine and the Netherlands v. Russia, the Grand Chamber affirmed the role of IHRL in armed conflict situations, and emphasised the importance of applying the Convention consistently with other instruments of international law. With reference to paragraph 3(c) of Article 31 of the Vienna Convention, the Court highlighted that the Convention cannot be interpreted in a vacuum and should, as far as possible, be interpreted in harmony with other international law rules. The Court even went as far as to state “there is no circumstance in which international humanitarian law will apply to the complete exclusion of the Convention”. The Court acknowledged the potential challenges of harmonious interpretation where Article 2 is concerned, given that it is incumbent in IHL that killing in wartime is acceptable under certain conditions.
Conflict-related sexual violence
Although it is well-established in the Court’s case law that sexual violence can amount to inhumane and degrading treatment falling within the scope of Article 3, this is the first time that the case has considered this in the context of CRSV. In Ukraine and the Netherlands v. Russia, the Court establishes the possibility that the Convention will become an effective avenue for victims of CRSV to seek justice. It is striking that the Court does not shy away from this topic, instead embracing a range of contemporary views on the nature of CRSV.
The Court reiterated both long-standing principles relating to the ECHR and sexual violence, and incorporated IHL perspectives on sexual violence in wartime. The combination of these two analyses resulted in a novel and robust approach to CRSV. The Court referred to its previous case law’s assessment that rape committed by an official against a detainee is a particularly abhorrent form of ill-treatment and noted that rape “leaves deep psychological scars”.
In line with the Court’s focus on the harmonisation of IHRL with IHL, the Grand Chamber of the ECtHR was explicit in its reference to other sources of international law in its analysis of CRSV. By denoting the sexual violence perpetrated against Ukrainians in occupied territories as a systematic weapon of war, the Court demonstrated its willingness to engage directly in topics which may previously have been considered the sole reserve of ICL and IHL. Moreover, the Court linked the finding that sexual violence amounts to torture with the standards imposed by and the reasoning of the International Criminal Court (ICC)’s Rome Statute. Specifically, the Court noted that the Rome Statute defines rape as part of a systematic attack against a civilian population as a crime against humanity and then asserted that this is “an act of extreme atrocity that amounts to torture”. In so doing, it affirmed the
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 427.
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 428.
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 1063.
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 1078.
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 1078.
direct relationship between these two bodies of law by connecting the notion of torture under Article 3 of the Convention with systematic wartime rape as a crime against humanity as per the Rome Statute.
Yet the Court’s analysis went further than simply linking CRSV under the Convention with other international instruments. Crucially, the Court engaged in a detailed analysis of the specific nature of sexual violence in wartime in a way that aligned clearly with feminist theory. Among other things, the Court highlighted that rape can be seen as a way for an aggressor to symbolically and physically humiliate defeated men. It noted that sexual abuse perpetrated against male detainees is often a method of attacking and destroying their sense of masculinity, and that such attacks “have powerful political and symbolic meanings”.
This aligns with both the jurisprudence of international criminal tribunals, such as the International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR), as well as feminist theory. Feminist scholars have challenged perspectives that portray CRSV as an inevitable result of male biology, advocating instead that rape is a weapon of war, which is both a gendered and political act (Smith, 2025). The Court’s adoption of similar terminology recognises the specific role that CRSV plays in wartime, as well as the impact on its victims.
The potential for this to open the way for other CRSV-based claims at the ECtHR is pivotal. The shortcomings of other international law mechanisms – most notably in ICL as applied by the ICC – as a means of achieving justice for victims of CRSV are well-established. Cases prosecuting sexual and gender-based violence are vulnerable to being dismissed, narrowed or dropped at early stages in proceedings (Cvercko, 2018). Additionally, the ICC’s prosecutorial strategy focuses on those who bear the greatest responsibility for crimes, a common approach across international criminal tribunals (Bådagård & Klamberg, 2016). It can be difficult to attribute legal responsibility to these high-level commanders for sexual violence perpetrated by low-level combatants on the ground. Given human rights law’s focus on state responsibility, as opposed to individual responsibility, these evidentiary hurdles are reduced in the context of human rights claims. Therefore, the Court’s willingness to address CRSV signals a welcome step towards addressing impunity for CRSV.
Looking forward
Although the judgment is not without its criticisms, it represents a monumental achievement by the Court and reflects the Council of Europe’s commitment to the European peace project. The Court now faces the challenge of hearing over 9,000 pending individual cases pertaining to Russia’s actions in Ukraine, and its approach to them will be just as important.
Whilst the Court’s acknowledgement of the wartime administrative practices that violate the ECHR is important for victims of these violations, compensation in the form of damages is also an integral part of the ECHR system. Given Russia’s complete rejection of the ECtHR and its refusal to engage in the proceedings, the question of damages raises tricky questions,
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 1077.
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, July 9th, 2025) 1077.
which may require combined political and legal efforts. The issue of damages will arise as the Court assesses the pending individual applications, and any resolution thereof may take a significant amount of time.
The judgment in Ukraine and the Netherlands v. Russia opens the possibility of considerably more applications to address wartime human rights violations. As emphasised in this article, this is a positive contribution to the already important body of law concerning States’ wartime conduct. CRSV is a pervasive phenomenon and one for which there needs to be more effective judicial mechanisms, along with non-judicial approaches such as psychological support, economic empowerment and reintegration programmes. The Court’s openness to addressing the core nature of CRSV and its wide-ranging impacts is a positive step towards a survivor-centred approach to justice for victims of CRSV.
Bibliography
Bådagård, L. & Klamberg, M. (2016) The Gatekeeper of the ICC: Prosecutorial Strategies for Selecting Situations and Cases at the International Criminal Court. Georgetown Journal of International Law, Volume 48.
CCPR, ‘General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (2004, May 26) UN Doc CCPR/C/21/Rev.1/Add.https://www.refworld.org/legal/general/hrc/2004/en/52451.
Cvercko, N. (2018, July 18) Analysis: The ICC’s Treatment of Sexual and Gender-Based Violence Crimes. Global Justice Journal.https://globaljustice.queenslaw.ca/news/analysis-the-iccs-treatment-of-sexual-and-gender-based-violence-crimes.
Smith, S. (2025, April 23) Beyond the Weapon of War: Rethinking Gendered Narratives of Conflict-Related Sexual Violence, Journal of Public & International Affairs.https://jpia.princeton.edu/news/beyond-weapon-war-rethinking-gendered-narratives-conflict-related-sexual-violence.
CASE LAW
Georgia v. Russia (II) App no. 38263/08 (ECtHR, 2021, January 21).
Hassan v. the United Kingdom App no. 29750/09 (ECtHR, 2014, September 16).
Ukraine and the Netherlands v. Russia App nos. 8019/16, 43800/14, 28525/20 and 11055/22 (ECtHR, 2025, July 9).
