Between Two States: Adjudicating Human Rights Abuses in Occupied and Annexed Ukraine

Evan Harary
Vol. 41 Associate Editor

Russian incursion into Ukrainian territory—in the form of the annexation of Crimea and the ongoing conflict between Ukraine and Russia-backed separatists in Donbass—has provided for fertile territory for human rights abuses. Monitors report an uptick in generalized violence against women, as well as instances of torture, forced labor, illegal detentions, and appropriation of property under threat of violence.[1] Victims of these abuses are now seeking justice, both in Ukrainian national forums and in the European Court of Justice (hereinafter “ECtHR”).[2] And while Ukrainian forums have faced their own challenges in litigating cases arising from the conflict—namely a lack of resources and allegations of sham trials and the ECtHR has faced a still thornier dilemma: how should it apply the European Convention on Human Rights (“ECHR”) in the context of ongoing inter-state conflict, where control over land and actors is unclear? And is it possible to hold Russia—whom many blame for the suffering in Donbass and Crimea—responsible for human rights abuses, without resolving the much-larger issue of Russian and Ukrainian sovereignty over disputed territories?

The answer to these questions depends on the ECrHR’s resolution of the interstate (as opposed to individual plaintiff) dispute of Ukraine v. Russia re Crimea, upon which the ECtHR has delayed the adjudication of individual cases.[3] In deciding in the interstate context whether Russia violated the European Charter of Human Rights in imposing Russian citizenship on Crimean residents, the ECtHR will decide the course of justice for thousands of individual plaintiffs.[4]

The ECtHR reports that it has over 4,000 individual claims arising out of the Russia/Ukraine conflict pending before it.[5] Anecdotally, the state actor on the hook is clear in many. In the Ilyovask tragedy, for example, large numbers of retreating Ukrainian troops were killed in the midst of an apparent intervention by regular Russian troops.[6] But in other instances, things are murkier. What state can be held responsible for the murder of four Pentecostal priests in Slavyansk, controlled at the time by Russian-backed separatists, will likely depend in part on whether Russian jurisdiction can be proven over that area, which in turn depends on the degree of Russia’s actual control over that area and the perpetrators themselves.[7] And, while in many areas Russia has clear de facto sovereignty, applying this as a legal matter is complicated by the fact that Ukraine claims sovereignty over all Russia-occupied territory, a claim that European courts are surely loath to disturb.[8] Perhaps as a consequence of this, the vast majority of human rights claims stemming from the Russia/Ukraine conflict have been lodged against Ukraine. Because of Ukraine’s recognized territorial claims, the route to compensation for claims against it is much surer in courts of law.[9]

But the legal landscape could soon change based on the ECtHR’s analysis in Ukraine v. Russia re Crimea. In order to resolve this dispute, the ECtHR must navigate the vagaries of its own precedent, the likely political consequences of any impactful holding, and the implicit limits on its jurisdiction to decide issues of territorial sovereignty. With respect to its precedent, the ECtHR will likely have to thread the needle between two precedents. In Loizidou v. Turkey, the court held that a nation could be held responsible for abuses occurring in territory over which it had control, regardless of whether it obtained that control lawfully.[10] In Ilasçu and Others v. Moldova and Russia, on the other hand, it found that states have two positive obligations to territory over which they claim sovereignty in name but lack full de facto control: 1) to take limited steps to re-establish control over that area and 2) to take steps to protect the rights of individuals in that territory against third party interference.[11]  The former approach would seem to point to Russian liability for most claims, depending in Donbass on a finding of Russian control over territory and actors. The latter approach, on the other hand, would seem to set the stage for a more layered case-by-case resolution to claims: in order to establish state responsibility for a specific claim, the court would have to assess Ukrainian efforts to regain control over breakaway regions, as well as its efforts to protect the plaintiff from Russian state or separatist conduct.

Outside of the case law, any forceful ECtHR decision is sure to produce political shockwaves. Should the ECtHR produce a standard that primarily holds Ukraine responsible for human rights abuses in occupied and annexed territories, it may lose legitimacy as an organ (European audiences generally blame Russian aggression for what has transpired in Ukraine) and spur Ukrainian disillusionment with European institutions.[12] Should it find more expansive jurisdiction for Russia, it will surely draw Russian retribution, spoiling the tentative rapprochement between Russia and European leadership.[13]

In arguments in Ukraine v. Russia re Crimea, Russian counsel has seized on this maze of political hazards, arguing that sovereignty disputes are “political” and therefore beyond the purview of the court.[14] To this point, a strict reading of the ECHR, which is aimed at protecting individual liberties, yields little room for decisions on far-reaching sovereignty disputes, which are more naturally the purview of the International Court of Justice.[15] But just because an issue contains political dimensions does not mean it is incapable of resolution in a legal forum. The ICJ itself has consistently held to this effect.[16] And if the ECtHR has to make a finding with implications for sovereignty in order to ensure the individual rights, there is nothing in ECtHR jurisprudence or the ECHR itself to suggest it should not. Indeed, if the ECtHR refrains from reaching judgments where there is a political dimension, it risks creating an informal exception to its jurisdiction in cases where an obstinate state is involved. This, in turn, would undermine faith in the ECtHR in states on the periphery of aggressive and authoritarian regimes. For its own institutional integrity, it may be better for the ECtHR to find expansive jurisdiction for Russia and risk Russian ire, then to issue a toothless ruling in order to get along.

But while sabers rattle at the state level, the resolution of the state responsible in individual cases may not inspire emotion one way or the other. For families whose loved ones have been imprisoned or killed, what is at stake is compensation and a recognition of what happened to them—not the vindication of national interest. In fact, survivors of those killed in Donbass often blame both Ukraine and Russia for what happened, citing Russian aggression and Ukrainian state callousness.[17] So, while the ECtHR may tread carefully in drawing the lines of its jurisdiction, it must remember that its first responsibility is providing justice to victims, and to those whose lives have been affected by nations butting heads.

[1] Ukraine: Events of 2018, Human Rights Watch,

[2] Tetiana Kozak, Ukraine Accused of Racking Up Stats in Flawed Pursuit of Justice, Balkan Insight (October 22, 2019,); European Court of Human Rights: Ukraine (January 2020).

[3] RFE/RL’s Ukrainian Service, Russia, Ukraine Clash in Human Rights Court On Crimea, RadioFreeEurope, (September 12, 2019, 5:40 AM),

[4] Registrar of the Court, ECHR to adjourn some individual applications related to Eastern Ukraine, European Court of Human Rights (Sept. 11, 2019).

[5] Vyachelsav Hnyatuk, As Ukraine’s Conflict Grinds On, Lawyers Take to the Frontline, Balkan Insight (October 21, 2019),

[6] Fourth Anniversary of the Ilyovask Tragedy Marked Today, Ukrinform (August 28, 2018, 10:30 AM),

[7] Scott Peterson, A Ukrainian murder mystery ensnares a church in former rebel stronghold, Christian Science Monitor (August 12, 204),; James Crawford & Simon Olleson, The Nature and Forms of International Responsibility in International Law in International Law 441, 454 (M.D. Evans (ed.), 3rd ed., Oxford: Oxford University Press, 2010).

[8] RFE/RL’s Ukraine Service, Mixed Reactions for Zelenskiy’s Eastern Ukraine Election Deal, RadioFreeEurope (October 2, 2019, 1:08 PM),;; Michael R. Pompeo, Secretary of State, Crimea is Ukraine (2019).

[9] Balkan Insight, (October 21, 2019).

[10] App. No. 153118/89, 23 Eur. Comm’n H.R., ¶ 57 (1995).

[11] 2004-VII, Eur. Ct. H.R. 179, 254.

[12] Stephen J. Hadley, It’s Time to Stand Up to Russia’s Aggression in Ukraine, Foreign Policy (January 18, 2019, 3:53 PM),

[13] Joana Plucinska, Poland warns EU countries against rapprochement with Russia, Reuters (August 8, 2019, 8:24 AM),

[14] RadioFreeEurope,, (September 12, 2019, 5:40 AM).

[15] See generally European Convention on Human Rights.

[16] Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgement of 24 May 1980, ICJ Reports 3, para. 37.

[17] Balkan Insight, (October 21, 2019).

The views expressed in this post represent the views of the post’s author only.