Introduction 

On July 9^th, 2025, the Grand Chamber of the European Court of Human Rights (ECtHR) in Ukraine and the Netherlands v Russia clarified several intriguing questions. Scholars like Marko Milanovic consider the Judgement (merits) as ‘As good as it gets (Almost)’.  The Judgement broadened the jurisdictional scope of the European Convention on Human Rights (Convention) and the standard of attribution, ie, the conduct of pro-Russian separatists from 2014 is attributed to Russia, which implies that the act of a de facto organ with complete dependence and control on the State is attributed to that State, thereby consolidating the observations of ICJ in Nicaragua and the Bosnian Genocide.   Additionally, clarity was rendered on jus ad bellum (the law governing the use of force) and its wider implications on human rights. In this post, I map the court’s treatment of the relationship between International Human Rights Law (IHRL) vis-à-vis International Humanitarian Law (IHL). The findings are significant, as the court (including the ICJ) has grappled with this issue since the convergence of both regimes. The attitude of the Court indicates a shift towards norm coordination over norm priority in line with contemporary practice.

Treatment of IHL Question

In situations of armed conflict, the scholarship is nestled between the principle of lex specialis and the principle of complementarity (co-application).  Lex specialis favours the application of specialised rules of IHL, whereas complementarity favours the co-application of IHL and IHRL.

The ICJ, for instance, has endorsed both these frameworks. The Wall Advisory opinion [105] backed IHL as lex specialis, whereas in DRC v Uganda [180], it abandoned the lex specialis in favour of complementarity. In the words of the ICJ, “both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration” [216]. The Grand Chamber’s ruling makes it evident that IHL is used as an interpretative tool to gauge the scope of the Convention in terms of human rights guarantees. I reckon this jurisprudential development indicates that human rights, which was traditionally conceived as a self-contained or specialised regime, is mindful of the development in other regimes; no wonder the Grand Chamber observed that, “its duty to interpret the Convention in the light of the rules set out in Article 31 § 3 of the 1969 Vienna Convention on the Law of Treaties and so far as possible in harmony with other rules of international law of which it formed part, including IHL”  [22]. Hence, the Grand Chamber abandoned lex specialis, barring scenarios in the absence of derogation under Article 15 of the Convention, as the provisions might conflict with one another.

Diminishing Relevance of Lex Specialis

The Grand Chamber’s Judgement clarified the fluctuating relationship between IHRL and IHL. This is timely because, as Prof. Yuval Shany aptly puts it, “[T]he instability of existing law and practice relating to co-application caused by the aforementioned two tensions is at the root of efforts to move beyond the lex specialis framework.” The Grand Chamber has echoed this sentiment; also, lex specialis can pose a unique set of challenges. In the context of IHL and IHRL, it is difficult to locate which regime constitutes lex specialis, as lex specialis comes into play in cases of incompatible norms. In certain scenarios, IHRL provides more nuanced conduct of regulation than IHL in situations of armed conflict or occupation. For example, in the Wall Advisory opinion, Israel’s construction of the wall according to the ICJ violated the panoply of IHRL norms in the Occupied Palestinian Territories (OPT); these violations had no parallel in the IHL regime. Similarly, in situations involving arbitrary deprivation of liberty or non-refoulement, the concurrent application of IHL and IHRL would offer comprehensive protection by filling the gap left by the other regime.  Therefore, in a situation of armed conflict, the co-application would offer a higher standard of protection for the victim, rendering IHRL as a preferred regime geared towards pro hominem interpretation. This position aligns with the views of the Human Rights Committee (HRCtee) General Comment 35, where it was observed that Article 9 of the Covenant applies to situations of armed conflict to which rules of IHL are applicable; in other words, rules of IHL are relevant in interpreting Article 9 of the Covenant. Moreover, complementarity means excluding the controversial ‘context of chaos’ embraced in Georgia v Russia (II), which plausibly abandoned the Convention because of the lack of effective control.

Conclusion

The Grand Chamber brings to the fore the diminishing relevance of the lex specialis framework; instead, the emphasis is on complementarity. However, there may be backlashes from the States, Judges, and scholars who may view IHL as lex specialis because of the inherent distinction in these regimes. The Grand Chamber giving impetus to norm coordination over norm priority would be relevant for the comprehensive protection of victims. This does not come as a surprise, as the ICJ, which introduced the lex specialis framework, has deserted it.