Green Light from the ICJ to Go Ahead with Ukraine’s Dispute against the Russian Federation Involving Allegations of Racial Discrimination and Terrorism Financing

On 8 November 2019, the ICJ delivered its highly anticipated judgment in Ukraine v Russia on the preliminary objections raised by the Russian Federation with respect to the Court’s jurisdiction and the admissibility of Ukraine’s claims under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The ICJ overwhelmingly rejected Russia’s preliminary objections that the Court lacks jurisdiction to entertain Ukraine’s claims under both CERD and ICSFT, and found that Ukraine’s Application in relation to CERD claims was admissible. The ruling was hailed as a victory by Ukraine, as it clearly achieved more than it bargained for at this stage of proceedings, given rather modest provisional measures that were earlier granted by the Court only under CERD (see more here). Ukraine succeeded in avoiding the fate of Georgia, whose case against Russia under CERD – arising out of the 2008 Russia-Georgia war – was rejected on jurisdictional grounds and did not proceed to the merits stage.

The Ukraine v Russia dispute is narrowly limited to Ukraine’s claims under CERD with respect to the situation in Crimea, and claims under ICSFT with respect to the ongoing armed conflict in eastern Ukraine. However, it touches upon some broader highly contested issues related to the unlawful occupation/annexation of Crimea and Russia’s degree of military involvement in the conflict in eastern Ukraine, which are beyond the scope of the judicial inquiry at the ICJ (see more here). The proceedings are complicated by the Parties’ divergent accounts of factual circumstances surrounding the situation in Crimea and eastern Ukraine, which will become even more prominent at the merits stage. In order to determine its jurisdiction ratione materiae under the respective compromissory clauses in both CERD and ICSFT, the Court had to determine whether the acts of which Ukraine complained fall within the provisions of both treaties. Further to this, the Court had to ascertain the fulfilment of the procedural preconditions for the seisin of the Court under both instruments.

ICSFT

As for the subject matter of the dispute under ICSFT, the Court had to determine whether: (1) Russia had the obligation to take measures and to cooperate in the prevention and suppression of the alleged financing of terrorism in eastern Ukraine and, if so, whether (2) Russia breached such an obligation (para. 32). As mentioned before, a highly divisive issue between the Parties was the scope of obligations imposed on States Parties under ICSFT. At the provisional measures stage, Ukraine was advancing a rather broad interpretation of obligations under ICSFT, reading the state’s prohibition of financing of terrorism into the duty to prevent terrorism financing offences (see more here). The Court made an important clarification that the state financing of acts of terrorism lies outside the scope of ICSFT, although it subsequently stated that such finding did not imply that state sponsored terrorism was lawful under international law (paras 59-60).

Another divisive issue concerned the definition of perpetrators of terrorism financing offences, in particular whether the Convention covered both persons acting in a private capacity and state agents. Although the ICJ found that both categories of persons were covered by ICSFT, it nevertheless clarified that the commission of terrorism financing offences by a state official does not in itself engage the responsibility of the State concerned under the Convention (para. 61). In other words, state responsibility is only engaged insofar as 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” (ibid).  

The thorniest issue at dispute between the Parties was whether the necessary mens rea standard was satisfied with respect to alleged terrorism financing offences and underlying terrorist acts. At the provisional measures stage, the Court concluded that evidence put forward by Ukraine “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” (Order, para. 75). In its ruling on jurisdiction, the Court held that the question surrounding the existence of the required mens rea did not affect the scope of ICSFT and therefore, was not relevant to the Court’s jurisdiction ratione materiae (para. 63). It reserved the question of mens rea for the merits stage. Ukraine was fortunate that the ICJ found the question of mens rea to be irrelevant to the Court’s jurisdiction ratione materiae and did not delve into Ukraine’s rather inconsistent articulation of the requisite mens rea. Hence, Ukraine now has another chance to rehearse its arguments on mens rea and will hopefully seize this opportunity to furnish the Court with more robust evidence in support of the requisite mens rea standard in relation to alleged terrorism financing offences, which give rise to the breaches by the State of its obligations under ICSFT.

As for the procedural preconditions under Art 24(1) of ICSFT, the Court held that both preconditions of negotiations and attempted recourse to arbitration have been met (para. 77). An interesting issue arose during the proceedings as to whether Ukraine’s insistence on the submission of the dispute to the ad hoc chamber of the ICJ could satisfy the fulfilment of the arbitration requirement (see more here). Although the judgment does not shed much light on that issue, it does confirm that the ad hoc chamber dispute settlement mechanism does not constitute arbitration. The judgment reads in a way that the ad hoc chamber mechanism was one of the options put forward by Ukraine when it was engaged in the arbitration related negotiations (para. 76).

CERD

As for the subject matter of the dispute under CERD, the Court had to determine whether Russia breached its obligations under CERD through discriminatory measures allegedly taken against the Crimean Tatar and Ukrainian communities in Crimea (para. 32). Russia’s major contention was that the dispute had nothing to do with racial discrimination but solely purported to the status of Crimea, which stands in stark contrast to Ukraine’s account of multiple breaches of CERD through the implementation of Russian discriminatory policy and “a campaign of cultural erasure” directed against Crimean Tatars and ethnic Ukrainians in Crimea (para. 88). Whereas at this stage of proceedings, the Court did not have to establish whether the acts of which Ukraine complained actually constituted racial discrimination, it was satisfied that such acts are capable of “having an adverse effect on the enjoyment of certain rights protected under CERD”, thus concluding that Ukraine’s claims fall within CERD (para. 96).

As for the procedural preconditions under Art 22 of CERD, the Parties disagreed whether the requirements of negotiations and resort to the CERD committee procedure were alternative or cumulative, given existing ambiguity and unanswered questions in that regard stemming from Georgia v Russia. Finally, the Court provided a much-needed clarification, stating that ‘negotiation’ and ‘resort to the CERD committee procedure’ were two means to achieve the same objective of settling a dispute by agreement, which were alternative and not cumulative. Having given proper attention to the context of Art 22, the Court held that it would be unreasonable to require States Parties, which have already failed at negotiations, to engage in an additional set of negotiations in accordance with the CERD committee procedure (para. 101). It was recognised by the Court that the cumulative character of the procedural preconditions would also go against the object and purpose of the Convention, which requires States Parties to eliminate racial discrimination ‘without delay’. This finding is a welcome clarification on the scope of the compromissory clause in Art 22 of CERD, which was also subject to disagreement between the parties in Qatar v UAE. However, in the latter case, the Court refrained from ruling on the alternative or cumulative character of the procedural preconditions under Art 22 of CERD, as the issue was not related to the assessment of the plausibility of rights for the purposes of indicating provisional measures requested by the UAE (Order, para. 25).

As for the procedural requirement of negotiation, the Court found that despite the lack of success in reaching a negotiated solution, Ukraine genuinely attempted to negotiate through its engagement in both diplomatic correspondence and face-to-face meetings. However, negotiations between the Parties had become futile or deadlocked by the time Ukraine filed its lawsuit (para. 120). In light of its finding on the alternative character of the procedural preconditions, the fulfilment of the negotiation requirement was sufficient in itself to satisfy jurisdictional prerequisites under Art 22 of CERD.

Another question arising out of the present case was whether the rule of exhaustion of local remedies in international law was applicable to inter-State claims under CERD. The Court appears to have concurred with the ECtHR that found that the rule does not apply where the applicant state complains of a practice as such, without seeking the Court to rule on individual cases that were put forward for illustration purposes (Georgia v Russia II, Admissibility Decision, para. 85). Therefore, the ICJ found that the rule of exhaustion of local remedies did not apply in the present case, given that Ukraine alleged Russia’s discriminatory pattern of conduct in Crimea and did not advance individual cases of its nationals (para. 130).

Significance of the ruling for Ukraine and international law

The ruling in Ukraine v Russia is significant for a variety of reasons both for Ukraine as a party to the dispute and international law more generally. First, it appears that Ukraine’s strategy of ‘lawfare’ against Russia in different international courts starts to bear fruit (see more here). Using this strategy, Ukraine has so far achieved more than Georgia has in its strategic litigation arising out of the Georgia-Russia war. However, the stakes are high as Ukraine’s claims under both CERD and ICSFT will be heard on the merits for the very first time in the history of the Court on the basis of both instruments. Ukraine cast its net wide under CERD, alleging a broad range of violations under the Convention. The ICJ has a daunting task ahead to construe broadly formulated rights and obligations under CERD, including the non-exhaustive list of rights in Article 5, in the context of the numerous discriminatory measures in Crimea alleged by Ukraine.

Despite my earlier prediction that Ukraine’s claims under ICSFT were unlikely to proceed to the merits stage, Ukraine managed to pull through largely due to the fact that the question of mens rea in relation to terrorism financing offences, which belongs to the examination of the plausibility of claims, was reserved by the ICJ for the merits stage. However, the question of mens rea is not going anywhere. In fact, Ukraine will have to completely revise its rather weak submissions on mens rea, as earlier evidenced by the Court’s denial of provisional measures under ICSFT.

A few commentators on this forum (see more here and here), including myself, were enthusiastic about the potential application of the ICJ Bosnian Genocide case reasoning to the interpretation of the duty to prevent under ICSFT in a way that would encompass the prohibition of state sponsored terrorism. However, the ICJ ruled that the prohibition of state sponsored terrorism was beyond the scope of ICSFT, having settled the issue of the scope of state obligations under ICSFT. Given the recent popularity of CERD as an instrument for bringing lawsuits before the ICJ, the Court helpfully clarified that the procedural preconditions under Art 22 of CERD were alternative and not cumulative. Ukraine v Russia is a case to be watched. It does not only have the potential to deliver credible fact-finding at the backdrop of the Parties’ alternative accounts of events in Crimea and eastern Ukraine, but it is also capable of shedding light on important matters of international law stemming from the interpretation of CERD and ICSFT.