CYIL vol. 16 (2025)

JAN MAIS conflict into artificial phases and adopting an overly formalistic reading of jurisdiction, the Court effectively excluded from scrutiny some of the gravest violations. Rather than engaging with an analysis of the factual circumstances at hand, it relied on abstract notions of chaos to justify its restrained stance. Such approach weakens human rights protection precisely where it is most needed and risks creating twisted incentives for States to intensify or prolong the conflict to escape their human rights obligations. The merits judgment in Ukraine and The Netherlands v Russia is undoubtedly commendable, both for the importance to victims of the Russia’s egregious actions and for the advancing the interconnection of the ECHR’s regime with broader issues of international law. Yet in terms of dispelling anxieties over the clarity of the jurisdictional test, its contribution is less persuasive. It does not clearly articulate its relationship to Georgia v Russia (II) judgment, and its reasoning relies to a considerable extent on factors external to the notion of jurisdiction. As long as the Court’s consideration of new cases relies on carve-outs from its previously established standards and the creation of ill-fitting clawbacks, without adherence to consistent criteria, parties cannot approach the Court with a reasonable degree of certainty as to the outcome. The notion of ‘context of chaos’ epitomises this problem: unexpectedly introduced in one case, then put aside in another, and accompanied with a reliance on considerations extraneous to jurisdiction, it highlights the lack of stability in Court’s approach. This inconsistency suggests that future cases may again be resolved on an ad hoc basis, shaped more by their particularities and political sensitivities than by a stable legal test. Such a course, however, leads to legal uncertainty and double standards. A coherent and principled approach, grounded in a fact-specific, context-aware analysis of control, is needed to safeguard human rights during conflict. Practical challenges and political sensitivities undoubtedly exist, but they must not erode the foundational principle that States remain accountable for their actions, even in war.

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