magnify
Home Posts tagged "financing of terrorism"

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

Published on November 22, 2019        Author: 

 

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. Read the rest of this entry…

 

Ukraine v Russia (Provisional Measures): State ‘Terrorism’ and IHL  

Published on May 2, 2017        Author: 

On 16 January 2017, Ukraine filed an Application against Russia before the International Court of Justice (‘ICJ’ or ‘the Court’), founding the Court’s jurisdiction (in part) on the compromissory clause (Article 24) of the Terrorism Financing Convention (‘ICSFT’). On the very same day, Ukraine filed a Request for the indication of measures of protection. On 19 April 2017, in respect of the claim based on the ICSFT, the Request was rejected, although the Court did order provisional measures in support of the claim based on CERD.

The Application and the Court’s Order on provisional measures (‘Order’) have been the subject of several blog posts, including here,  here and here, and I will not revisit their content.  Instead, I’d like to further consider some of the issues raised by the Court’s refusal to award provisional measures in respect of the ICSFT.  As noted in the terrific post by Vincent-Joel on ‘Terrorism and the World Court’, this dispute presents an important opportunity for the Court not only to clarify the nature of certain counter-terrorism obligations, but equally to interpret the ICSFT in a ‘forward-looking and purposive’ manner which reflects the post-9/11 counter-terrorism climate.  It also bears noting that this case is an opportunity for the Court to address the increasingly common – and increasingly dangerous – State practice of materially supporting non-State armed groups (‘NSAGs’), even if, for jurisdictional reasons, it must do so through the prism of terrorism financing.

There are two substantive issues which were at stake in making the case for provisional measures that I want to address:  First, Ukraine had to establish the Court’s prima facie jurisdiction under the ICSFT, in part based on whether ‘the acts complained of […] are prima facie capable of falling within the provisions of [the ICSFT]’.  Second, given that most of the NSAG conduct underlying the Application took place within the context of an armed conflict (‘AC’), the characterization of that conduct as ‘terrorist’ and falling within the scope of the ICSFT, or as merely in breach of (or at least governed by) International Humanitarian Law (‘IHL’), is put in issue.  Read the rest of this entry…