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‘Terrorism’ at the World Court: Ukraine v Russia as an Opportunity for Greater Guidance on Relevant Obligations?

Published on April 17, 2017        Author: 

Recently, Ukraine instituted proceedings against Russia before the ICJ, alleging violations of both the International Convention for the Suppression of the Financing of Terrorism (the ‘Convention’) and the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), followed up by a provisional measures request. This post is primarily concerned with the allegations formulated under the former instrument, including Russia’s alleged financing and support of illegal armed groups and terrorist activities in Ukraine, notably with respect to the downing of Flight MH17 (which the UNSC condemned in Resolution 2166 and demanded accountability). Given that a brief provisional measures overview has already been given on this blog, along with broader discussion of the case, I will highlight a few particular points of interest.

Shedding Light on the Convention

The Convention forms part of a series of multilateral conventions (the so-called ‘sectoral’ treaties) dealing specifically with terrorism-related offences and imposing obligations upon parties to criminalise relevant conduct domestically, falling short in many instruments of actually defining ‘terrorism’. The Convention is a notable exception, defining terrorism at Article 2(1) as:

‘[a]n act which constitutes an offence within the scope and as defined in one of the treaties listed in the annex; or…[a]ny 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’.

The ‘treaties listed’ limb refers to nine of the ‘sectoral’ treaties, including the 1971 Montreal Convention, which has relevance in this case.

Much of the content of these conventions is relatively untried and untested. Some contain compromissory clauses granting jurisdiction to the ICJ in the case of a dispute, including Article 24 of the Convention, on which Ukraine relies. While scholars have lobbied for greater resort to this jurisdictional avenue to bring terrorism cases to the Court, Ukraine’s case marks only the third instance of litigation involving a sectoral anti-terrorism treaty before the international judiciary, alongside the two Lokerbie cases. This is an important moment for the Court, but also for international law.

This collection of anti-terrorism conventions has been described in the most anti-cohesive fashion: a ‘patchwork’ of instruments, a ‘piecemeal’ approach, etc. This is a unique opportunity for the Court to provide helpful interpretive guidance on Article 2(1) and related issues, especially the notion of ‘intent’, a matter of considerable contention between the parties. There is no authoritative judicial pronouncement on this front, despite Ukraine’s efforts in tracking down an Italian Supreme Court of Cassation decision which weakens Russia’s argument by holding that:

‘an action against a military objective must also be regarded as terrorism if the particular circumstances show beyond any doubt that serious harm to the life and integrity of the civilian population are inevitable, creating fear and panic among the local people’ (CR/3, pp 39–40).

While there are many unresolved issues surrounding the legal concept of ‘terrorism’, Ukraine’s case shows that civilians have been targeted for purposes that include ‘intimidat[ing] a population’ and ‘compel[ling] a government or an international organization to do or abstain from doing any act’, with Russia’s support (CR/3, pp 40ff). And that is the essence of ‘terrorism’ under the Convention. Read the rest of this entry…