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27 March 2017

War in the Courts: Ukraine, Russia and the ICJ

Ukraine’s case against the Russian Federation at the UN’s International Court of Justice will be hard for Ukraine to win, let alone enforce. But Ukraine’s legal team at the ICJ have approached the case intelligently, putting Russia on the back foot

Russia’s annexation of Crimea and its military aggression in eastern Ukraine is widely seen asa clear violation of the fundamental principles and norms of international law. Despite this, there are few international legal mechanisms that allow Ukraine to bring Russia to justice and prevent further Russian military actions in the country.

If there is anywhere it can be done, it is the UN’s International Court of Justice, the ICJ. Yet even there, any settlement in Ukraine’s favour, and one that gets enforced, requires a titanic legal struggle.

In 2014, shortly after Russia annexed Crimea, there were two major obstacles for Ukraine’s legal team: first of all, Russia’s status as a permanent member of the UN Security Council. This effectively prevented Ukraine from getting a resolution through the Security Council aimed at ending Russian aggression and outlining a form of international legal responsibility for Russia’s violations of international law.

The second problem was that Russia does not accept compulsory jurisdiction of the UN’s ICJ, and thereby cannot not be brought to justice before this Court without Russia’s own consent.

Nevertheless, Ukraine decided to use against Russia two conventions which envisaged compulsory jurisdiction of the ICJ over Russia: The 1999 International Convention for the Suppression of the Financing of Terrorism — known as the ICSFT — and the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.

It is worth recalling that Georgia, after Russia’s invasion in 2008, had tried to use the mechanism of the International Convention on the Elimination of All Forms of Racial Discrimination. But the ICJ denied its jurisdiction on the grounds that Georgia, before going to the ICJ, had not exhausted other mechanisms envisaged by the Convention to settle the dispute with Russia on a bilateral basis.

Bearing this episode in mind, Ukraine had carefully “exhausted” those remedies which were presupposed by the Convention in order to avoid any accusations that it did not seek a bilateral solution to the dispute. It took a few years for Ukraine to do that.

Now, invoking the ICSFT, Ukraine seeks to make Russia perform its obligations under the Convention and to stop its crimes, such as financing and providing weapons and material support for Russian-backed armed groups in eastern Ukraine. Classifying these groups as terrorists, Ukraine’s lawyers cite numerous recorded acts that fall under this category, and those acts which have most clearly received Russian backing. In particular, Ukraine’s case rested on acts such as the shooting down of the Malaysian Airlines MH17 civilian aircraft, and evidence of shelling and bombing of the civilian population in Mariupol, Kramartorsk, Kharkiv and other cities.

In line with the ICSFT, Ukraine accuses Russia not in the commission of the acts of terrorism as such, but in the support and financing of the armed groups which commit acts of terrorism in Ukraine’s territory.

One of the key issues of the case is the correct interpretation of article 2 (1) (b) of the ICSFT which states that the act of terrorism prohibited by this Convention encompasses: “Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”.

Russia’s position on this issue is that for the ICSFT to apply, there must have been financing with the intent or knowledge that the funds allegedly provided be used for an act of terrorism against civilians. Additionally, according to Russia, Ukraine wrongly conflates two legally distinct concepts: acts of terror, and indiscriminate attacks in the context of armed conflict. In other words, Russia is trying to prove that an armed conflict in eastern Ukraine lies outside of the ICJ’s jurisdiction under the ICSFT and should be the matter for the international humanitarian law instead of the Convention.

The truth is that the Convention understands the concept of the “act of terrorism” more broadly than Russia’s legal team are arguing, and the ICSFT emphatically condemns “all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed.”

The ICSFT (which should be interpreted in good faith and in the light of its object and purpose) envisages an act of terrorism as a more objective than subjective phenomenon. The indication of this point is the phrase “when the purpose of such act, by its nature or context”, which is used in the article 2 (1) (b). In other words, a certain act should be qualified as an act of terrorism not because of the subjective “intent” in the mind of a criminal, but according to objective criteria, such as the concrete “results” (damage done to the civilian population and fear caused by this act). Russia’s line of argumentation in this respect would lead to absurd results, such as that the murdering of civilians by way of indiscriminate attacks cannot be regarded as an act of terrorism.

According to Russia, the ICSFT does not envisage the responsibility of a state for the financing of terrorism, while Ukraine argues that under the ICSFT what really matters is the prohibition of the financing of terrorism as such, without respect for the fact who (i.e. person or a state) commits this crime.

From Russia’s arguments, one might also get an incorrect impression that Russia is not banned under international law and the ICSFT to provide terrorist armed groups in eastern Ukraine with weapons. Despite numerous and well documented proofs that the illegal armed groups in eastern Ukraine are regularly equipped by Russia with different kinds of weaponry, including the newest one produced in Russia, Russia still denies involvement.

It is easy to get lost in the weeds of legal technicalities. But put simply, Ukraine before the ICJ is trying to prove two major points: 1) that the armed groups in eastern Ukraine, backed by Russia, commit acts of terrorism within the definition of the ICSFT; and 2) that Russia provides these armed groups with weaponry and other kinds of support, which constitutes violation of the ICSFT.

Interestingly enough, Russia is seemingly preparing for the possible recognition of the fact that the Malaysian airplane MH 17 was shot down with the use of a Russian-made weapon, the Buk missile launcher. For example, Russia’s representative Mr. Samuel Wordsworth during the hearings had stated that “whoever was allegedly supplying the Buk launcher was acting solely in response to, and for the purposes of defending against, a series of armed attacks by Ukrainian Military Air Force”. The very wording of this phrase might indicate that in the future Russia could admit that the Buk launcher had been brought from Russian territory.

Regarding the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, Ukraine demands all the ethnic groups in Russia-controlled Crimea (including Crimean Tatars and Ukrainians) are granted equal rights, as envisaged by this Convention, as well as cessation of discriminatory practices by Russia against Crimean Tatars and Ukrainians.

At this point Ukraine, due to the urgency of this matter, is seeking from the ICJ “provisional measures” which would oblige Russia to refrain from actions which violate both conventions and which would help to defend civilian population in eastern Ukraine, as well as Crimean Tatars and Ukrainians in Crimea. Ukraine is expecting the ICJ to recognize its jurisdiction prima facie in this dispute.

At the same time, Ukraine is not asking the ICJ to recognize Russia’s aggression against Ukraine. In other words, Ukraine fully understands that the ICJ’s jurisdiction under these conventions is limited and strives to remain within the stringent limits of this jurisdiction.

It is setting up quite a battle in the courts. Russia as an overbearing, seemingly unstoppable Goliath; Ukraine as that famous biblical underdog —David. The ICJ will decide whether Ukrainians can pull off a repeat of David’s unlikely victory.

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