Admissibility of Ukraine v Russia at ICJ

Introduction

Ukraine v Russian Federation was resultant of the lawsuit filed by the representative of Ukraine in the International Court of Justice on January 16, 2017 against the Russian Federation for commission of acts of terrorism and discrimination during Russian aggression against Ukraine. The principal international treaties involved in this case were the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999 ( “ICSFT”) and the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (“CERD”). The case was admitted by the ICJ after hearing the objections by the Russian Federation on November 8, 2019. The ICJ held that it has jurisdiction on the basis of anti-terrorism and anti-discrimination treaties.

The judgment being critically discussed in this essay relates to the admissibility of the case before the ICJ, decided by the ICJ on November 8, 2019. So far, the court has only decided on the question of admissibility of the dispute to the ICJ and the court is yet to hear the case on merits. However, the case is important because it has already laid down some principles on admissibility of cases under CERD and ICSFT, which will have implications for the future development of the law in this area. This essay first discusses the summary of the case and then comments critically on the significance of the case to international law.

Summary of the case

The dispute between Ukraine and the Russian Federation have its genesis in the events in the eastern Ukraine and in Crimea in 2014, which Russia annexed. Ukraine used the provisions of the ICSFT in relation to the events in eastern Ukraine and CERD in relation to the events in Crimea. One of the aspects of this case is that there was a difference of opinion of the disputing parties relating to the subject-matter of the dispute. One of the questions on the subject-matter of the dispute relates to the obligation of the Russian Federation under the ICSFT to take measures and to co-operate in the prevention and suppression of terrorism financing in eastern Ukraine. If there is such an obligation for the Russian Federation under the ICSFT then the question of whether the Russian Federation has breached its obligation would come into issue. The second question in the case filed by Ukraine relates to whether it has breached its obligation under the CERD. This question arises due to the alleged discriminatory measures taken against the Crimean Tatar and Ukrainian communities in Crimea.

Ukraine filed the lawsuit in the ICJ under the ICSFT and CERD. The alleged breaches by the Russian Federation of its obligations under the ICSFT and CERD are subject matter of the dispute. Ukraine had claimed jurisdiction of the ICJ specifically based on the provisions of these conventions: Article 24, paragraph 1, of the ICSFT; and Article 22 of CERD. Ukraine claimed that these provisions read with the Article 36, paragraph 1 of the Statute of the International Court of Justice gave the ICJ the jurisdiction over the matter. Russia raised five preliminary objections on ICJ’s jurisdiction and also objected to the admissibility of the application by Ukraine. The ICJ has rejected Russia’s preliminary objections under the 2019 judgment and held that the ICJ does have the jurisdiction to entertain the claims made by Ukraine against the Russian Federation under CERD and ICSFT. The court also held that the application made by Ukraine in relation to CERD claims was admissible before the ICJ.

One of the important aspects of the ICJ’s judgment in this case is that during the course of the case, the court also issued provisional measures. What is interesting is that the provisional measures were issued by the ICJ on the 19th of April 2017, in which the court provided that the Russian Federation must act as per the obligations in the ICSFT. The court held that acting under these obligations, the Russian Federation must refrain from imposing limitations on the ability of the Crimean Tatar community to conserve Mejlis, and refrain from interfering with the availability of education in the Ukrainian language. This is one aspect of the judgment that the second part of this essay will discuss in some detail. Part of the allegations made by Ukraine against Russia was that the latter had supplied funds, weapons and training to illegal armed groups that engage in acts of terrorism in the Ukrainian territory. The other part of the Ukrainian application against the Russian Federation was that the latter had caused discrimination and mistreatment of Crimean Tartar and ethnic Ukrainian communities in Crimea after the latter’s annexation by Russia in 2014.

The claims made in its application by Ukraine in Ukraine v Russia are narrowly limited to CERD in the context of the Crimean situation, and ICSFT in the context of the armed conflict in eastern Ukraine. The complex issues in this case are related to the differing accounts of factual circumstances offered by the parties to the dispute related to both Crimea and eastern Ukraine. At this stage, all the ICJ has done is to admit the case and hold that it has jurisdiction to try the case. Regarding the differing accounts of the situation in Crimea and eastern Ukraine, it is in the merits stage that the dispute will be resolved by the ICJ. At this point, these matters are not taken up by the ICJ. There are compromissory clauses in both CERD and ICSFT, which were used by the ICJ to determine its jurisdiction ratione materiae. The ICJ was required to determine whether the alleged acts that Ukraine had stated against the Russian Federation fell within the provisions of CERD and ICSFT.

One of the most difficult questions before the ICJ was the issue of mens rea standard that was necessary to satisfy the court that the alleged terrorism financing offences and underlying terrorist acts had been committed by Russia. At the provisional measures stage, the Court had held that the evidence “did not afford a sufficient basis to find it plausible that the required mens rea elements with respect to the terrorism financing offences, as well as underlying offences, were present”. When it came to the ruling of the ICJ on the jurisdiction question, the ICJ held that the existence of the required mens rea did not affect the scope of ICSFT and was not related to the question of the jurisdiction ratione materiae. Instead, the court held that the question of mens rea could be heard at the merits stage. The procedural preconditions under Art 24(1) of ICSFT related to the preconditions of negotiations and attempted recourse to arbitration have been met, which according to the court were met in this case.

With respect to the subject matter of the dispute under CERD, the question before the court was whether Russia had breached its obligations under CERD by taking discriminatory measures against the Crimean Tatar and Ukrainian communities in Crimea. As against the claim made by Ukraine, Russia contended that racial discrimination was not involved, rather the matter related to the status of Crimea. Therefore, there was a very differing account of how CERD was or was not engaged in the case. Ukraine had claimed that Russia had breached CERD when it had implemented discriminatory policy and also unleashed “a campaign of cultural erasure” against Crimean Tatars and ethnic Ukrainians. This question also was left by the court for final determination at the merits stage but, at this stage, the court had noted that the alleged acts are capable of “having an adverse effect on the enjoyment of certain rights protected under CERD.” This is all that is required at this stage to conclude that the case does engage CERD, where the actual allegations are to be proved at the merits stage.

Comment

It may be noted that prior to this case, in another case, Georgia had made similar allegations against Russia that had its genesis in the 2008 Russia-Georgia war. However, in that case, the ICJ had rejected the application made by Georgia on jurisdictional grounds. One may refer to the question of procedural preconditions under Article 22 of CERD in Ukraine v Russian Federation and compare it to the treatment given to the same question in Georgia v Russian Federation earlier. How the court has interpreted Article 22 at this stage is relevant to future cases as well. Article 22 of CERD provides that disputes between “two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.”

Thus, Article 22 of CERD has preconditions of negotiations; the question had earlier come before the court in Georgia v Russian Federation in the context of whether resort to CERD committee procedure would amount to negotiations. The significance of the decision in Ukraine v Russian Federation is that the court finally clarified on whether negotiation for the purpose of Article 22 would only be achieved by resort to the CERD committee. The ICJ held that if the states had already resorted to negotiations, then it would be unreasonable to demand that the states now engage in an additional set of negotiations in accordance with the CERD committee procedure. The compromissory clause in Article 22 therefore stands clarified to a great degree, which would be useful in the context of future cases. It may also be mentioned here that the same disagreement on the compromissory clause had arisen in Qatar v UAE but the ICJ had not ruled on the procedural preconditions under Article 22 of CERD. Now, after the Ukraine v Russian Federation judgement, the court has clarified that if a country (in this case, Ukraine) had genuinely attempted negotiations through diplomatic correspondence and face-to-face meetings, then the Article 22 requirements are met with. This is important because it helps states to save time and effort as they will not be required to enter into the CERD committee procedure.

With respect to the ICSFT, the questions before the ICJ were whether Russia had an obligation under the treaty which required it to take measures and to cooperate in the prevention and suppression of the alleged terrorism financing in eastern Ukraine and if Russia breached such an obligation. The scope of obligations that are imposed on the parties to the ICSFT was one of the issues that Ukraine and the Russian Federation had differences on. Russia had averred that the interpretation being presented by Ukraine was rather broad with respect to the duty of the state to prohibit financing of terrorism. In this respect, an important part of this judgment which has implications for future cases is the clarification given by the ICJ that the state financing of acts of terrorism lies outside the scope of ICSFT even if it is unlawful under international law. Another point of issue in the case, which has implications for international law is the definition of perpetrator of terrorism financing offences; the question is whether the ICSFT covers persons acting in a private capacity and state agents. With respect to this, the ICJ found that both persons acting in a private capacity and state agents are covered ICSFT but, the ICJ also clarified that the commission of terrorism financing offences by a state official does not in itself engage state responsibility under ICSFT. The implication of this finding is that the responsibility of the state is engaged when the state has breached an obligation to take appropriate measures and to co-operate in the prevention and suppression of terrorism financing offences “committed by whichever person.” A gap in the judgment in Ukraine v Russian Federation is that the court did not consider the application of the principles laid down by it in the Bosnian Genocide case to develop the interpretation of the obligation to not indulge in state sponsored terrorism under ICSFT. In Ukraine v Russian Federation, the ICJ has ruled that the scope of ICSFT does not cover state sponsored terrorism.

Conclusion

The ruling in Ukraine v Russia is significant for further development of the international law in this area. The first point of significance is that by ruling that the ICJ has the jurisdiction to try the case pertaining to CERD and ICSFT, the court has created the ground for the first ever case involving both CERD and ICSFT to be heard on the merits. Once the court finally hears the case on merits, it will have the opportunity to construe and interpret the rights and obligations under CERD. There are a number of allegations made by Ukraine against Russia and the list of rights in Article 5 of the CERD is also non-exhaustive, which will allow the ICJ a broad scope for interpretation of the rights and determine whether Russia did violate these rights. This will lead to the further development of the international law in relation to racial discrimination. An important point is that the court will determine the mens rea standard on merits with relevance to the crime of terrorism financing under ICSFT. Regardless of whether Ukraine manages to prove that mens rea standard was engaged in Russian actions in eastern Ukraine, the ICJ is likely to explain the mens rea standard which will be useful in future cases under the ICSFT. Another important contribution of Ukraine v Russian Federation is that the court has clarified on the procedural requirements under Article 22 of CERD to hold that the requirement of negotiations were alternative and not cumulative. This means that in future cases, states that have entered into negotiations through diplomatic channels would not be required to enter into any other measures.

Journals

Crawford J and Keene A, ‘Interpretation of the human rights treaties by the International Court of Justice’ (2019) The International Journal of Human Rights 1.

Maučec G, ‘Protecting Minorities from Discrimination and Mass Violence through Provisional Measures Indicated by the International Court of Justice’ (2019) 1 International Journal on Minority and Group Rights 1.

Marchuk I, ‘Application of the international convention for the suppression of the financing of terrorism and of the international convention on the elimination of all forms of racial discrimination (Ukraine v Russia)’ (2017) 18 Melb. J. Int'l L. 436.