ICJ’s Judgment in Ukraine v. Russia regarding CERD’s Scope of Racial Discrimination: ICJ’s Approach to CERD Committee’s Views

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On 31 January 2024, the International Court of Justice (ICJ) delivered its judgment on the merits of the case in 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. Russian Federation). One of the issues was Ukraine’s assertion that Russia had breached its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) through a campaign of racial discrimination against Crimean Tatars and ethnic Ukrainians in Crimea.

The ICJ has already had the occasion to rule on interpreting CERD provisions (Qatar v. UAE) and other human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR) in the Wall Advisory Opinion and the case of Ahmadou Sadio Diallo. Although treaty monitoring bodies (TMB) were established under CERD and ICCPR that had already interpreted the provisions under review in these cases, the ICJ has been reluctant to unconditionally embrace their interpretations of human rights norms. The ICJ has ascribed “great weight” to the pronouncements of TMB, but it has been careful to qualify that it is not obliged to adopt their interpretations (Ahmadou Sadio Diallo, Judgment of 30 November 2010, para 66).

In the Wall Advisory Opinion and in Ahmadou Siado Diallo, the ICJ recalled the pronouncements of the Human Rights Committee (HRC) but finally decided to conduct its own interpretative assessment. In both cases, the ICJ’s conclusions resembled the HRC’s interpretations.

However, in the case of Qatar v. UAE (see here and here for an overview of the case) the ICJ departed from the CERD Committee’s views by conducting its own interpretation process (following the rules of Articles 31 and 32 of the Vienna Convention on the Law of Treaties), which reached a different conclusion on the meaning and scope of racial discrimination in relation to differential treatment between citizens and non-citizens (see my article here).

In the Terrorism/CERD case of Ukraine v. Russia, there were two issues that the ICJ had to address that deviated from the interpretations adopted by the CERD Committee regarding the meaning and scope of “racial discrimination”. The first one was in relation to indirect discrimination, and the second issue was in relation to differential treatment between citizens and non-citizens.  

Indirect discrimination

The overall dispute concerned the meaning and scope of “racial discrimination” as contained in Article 1, paragraph 1, of CERD, which states that racial discrimination is “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.

Ukraine maintained that this definition encompasses three elements: (1) a “distinction, exclusion, restriction or preference” that is (2) “based on” any of the protected grounds that are “race, colour, descent, or national or ethnic origin”, and that has (3) “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms”.

Regarding the third element, Ukraine argued that CERD covered both a discriminatory purpose and effects-based discrimination or indirect discrimination, citing the CERD Committee’s General Recommendation No. XIV on the definition of racial discrimination. Therefore, if a measure has a disproportionate prejudicial impact on a protected group, it would be considered as racial discrimination, unless it is legitimate when “judged against the objectives and purposes of the Convention” (General Recommendation XIV, para 2). For that purpose, the measure must be necessary, pursue a legitimate aim, and be proportionate to the objective envisaged. The CERD Committee has maintained that to determine if the measure is compatible with CERD’s objectives, it is necessary to see whether the action has “an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin” (General Recommendation XIV, para 2).

On its part, Russia agreed that the definition of racial discrimination included both purpose and effects. However, it rejected Ukraine’s broad understanding of indirect discrimination, maintaining that “disparity of results between ethnic groups does not by itself constitute racial discrimination, unless it is an objective consequence of a distinction, exclusion, restriction or preference based on race, colour, descent, national origin or ethnic origin” (Ukraine v. Russia, Judgment of 31 January 2024, para 189).

According to Russia, the measure must be “causally linked” to an act of discrimination based on the protected grounds. Thus, disparities that constitute a collateral or secondary effect would not amount to racial discrimination. Also, Russia argued that a measure would not be discriminatory if it can be reasonably justified, which includes limitations to human rights that are necessary in a democratic society.

The ICJ maintained that indirect discrimination is covered by the definition of racial discrimination in CERD. However, the ICJ delimited its scope by covering measures that seem neutral, “but whose effects show that it is ‘based on’ a prohibited ground” (Ukraine v. Russia, Judgment of 31 January 2024, para 196), unless the measure can be justified according to criteria unrelated to the protected grounds. The ICJ argued that “mere collateral or secondary effects on persons who are distinguished by one of the prohibited grounds do not, in and of themselves, constitute racial discrimination within the meaning of the Convention” (Ukraine v. Russia, Judgment of 31 January 2024, para 196).

In this regard, the ICJ acknowledged that Crimean Tatars and ethnic Ukrainians have suffered disparate adverse effects on the enjoyment of their rights. Nevertheless, the ICJ argued that they have been victims of violent acts due to their political ideas (which is not a protected ground under CERD) and not based on their ethnic origin. For the ICJ, it sufficed that the disparate adverse effects suffered by Crimean Tatars and ethnic Ukrainians could be fairly explained by reasons unrelated to the protected grounds in Article 1, paragraph 1, of CERD.

Unlike previous cases, the ICJ did not even consider the CERD Committee’s interpretations in this regard (for example, General Recommendation 32 that includes an intersectional approach to indirect discrimination), despite that in Ukraine’s memorial there were several references to the CERD Committee’s pronouncements and other mechanisms for the protection of human rights, for example, reports of the Office of the High Commissioner of Human Rights (OHCHR) to probe matters of law and fact. The ICJ took notice of these references but did not analyze the CERD Committee’s pronouncements. Regarding the reports of the OCHR on the situation in Ukraine, the ICJ referred to this material for some matters of fact, but it maintained that they could not be considered compelling evidence because the OHCHR did not provide first-hand evidence since it has not visited Crimea.

Differential treatment of citizens and non-citizens

Regarding differential treatment between citizens and non-citizens, the CERD Committee in its decision on admissibility in Qatar v. UAE (following its General Recommendation XXX) maintained that these differences are within the scope of CERD and must be justified by a legitimate aim in order not to be considered as racial discrimination.

Following its jurisprudence on the case Qatar v. UAE, the ICJ reaffirmed that Article 1, paragraph 3, of CERD, explicitly excludes differences in treatment between citizens and non-citizens from the definition of racial discrimination. Thus, CERD does not cover the ways in which states grant nationality, unless it discriminates on the basis of national or ethnic origin. Therefore, the ICJ concluded that Russia did not violate its obligations under CERD as its measures and actions did not fall within the scope of racial discrimination.

The ICJ’s interaction with TMB: Is reconciliation possible?

Some experts have criticized the ICJ’s approach to TMB’s interpretations because the ICJ places itself in a relationship of superiority to these bodies (see here). Others argue that states (and thus perhaps the ICJ) are bound to adopt the interpretations of TMB, as they are the specialized bodies in charge of monitoring states’ human rights obligations (see here).

One possible reason that explains the ICJ’s approach to TMB’s interpretations, in this case, is that the underlying issue at stake was not the financing of terrorism or CERD’s provisions but the context of the armed conflict and Russia’s occupation of Crimea. However, considering that the ICJ’s approach was consistent with previous cases, it might be related to TMB’s legal nature as a non-judicial entity whose pronouncements are non-binding, and therefore, the ICJ is right in pointing out that it is not obliged to adopt their views.

On the other hand, the ICJ’s approach might be related to increasing criticism regarding the TMB’s bold role with respect to human rights interpretations (see here) and lack of rigorous legal and methodological analysis (see here and here). The ICJ’s approach in this regard should be considered a wake-up call to develop human rights interpretations that demonstrate solid legal analysis and mastery of general rules of international law.

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Martin Scheinin says

February 29, 2024

As someone who was involved in the case as one of Ukraine's experts at the stage of Ukraine replying to Russia's counter-memorial (see, https://www.icj-cij.org/sites/default/files/case-related/166/166-20220429-WRI-01-01-EN.pdf p. 261-), I do not want to engage in a full analysis. But I do want to cite paragraph 287 of ICJ's judgment and ask one question: Did Crimean Tatars and Crimean ethnic Ukrainians become "foreigners" in Crimea, including for the purpose of applying international law, if they chose not to become citizens of Russia in the immediate aftermath of the occupation and annexation? Answering this question in the affirmative appears to form an important precondition for how the ICJ then interpreted CERD.

Here's the paragraph:

"287. In the present case, the Court does not find that Ukraine has convincingly established that
the application of the Russian citizenship régime in Crimea amounts to a differentiation of treatment based on ethnic origin. To establish discrimination against Crimean Tatars and ethnic Ukrainians based on their ethnic origin, Ukraine mainly relies on the difficulty faced by the persons concerned when choosing between the legal consequences of adopting Russian citizenship or retaining Ukrainian citizenship. However, the Court is of the view that those legal consequences flow from the status of being either a Russian citizen or a foreigner. The respective status applies to all persons
over whom the Russian Federation exercises jurisdiction regardless of their ethnic origin. While the measures may affect a significant number of Crimean Tatars or ethnic Ukrainians residing in Crimea, this does not constitute racial discrimination under the Convention (see Application of the international Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports 2021, pp. 108-109, para. 112)."