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Home EJIL Analysis Ukraine Takes Russia to the International Court of Justice: Will It Work?

Ukraine Takes Russia to the International Court of Justice: Will It Work?

Published on January 26, 2017        Author: 

In a much-anticipated move, on 17 January 2017 Ukraine submitted the lawsuit against Russia at the ICJ alleging the violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The move did not come as a surprise, since Ukraine earlier announced its plans to take Russia to the ICJ over the annexation of Crimea and the conflict in eastern Ukraine. Although the major issue at stake is the unlawful use of force by Russia by annexing Crimea and conducting the war by proxy in eastern Ukraine, Ukraine invokes the breach of the two UN conventions that, although are relevant to the issues at stake, however, do not directly address the core of the dispute with Russia. The issues pertaining to terrorism financing and racial discrimination are largely peripheral to the major issue at stake. It is hard not to draw an obvious parallel between Ukraine’s and Georgia’s action before the ICJ. Following Russia-Georgia military standoff in 2008 in Georgia’s breakaway republics of Abkhazia and South Ossetia, which Russia viewed as a peacekeeping operation to protect human rights of its nationals, Georgia launched the lawsuit against Russia before the ICJ on the basis of the violation of CERD. Similar to Ukraine v Russia, the issues with respect to violation of CERD were not central to the dispute. Undoubtedly, Ukraine was inspired by the Georgian example and, while preparing its submission to the ICJ, attempted to avoid pitfalls that were encountered by Georgia and led to the dismissal of the case on jurisdictional grounds.

Jurisdictional Issues

The exercise of the ICJ jurisdiction in contentious proceedings is premised on state consent. As Russia does not recognize the compulsory jurisdiction of the ICJ, the only avenue for bringing the action before the ICJ is to rely upon a treaty that provides for the possibility of judicial settlement in the ICJ and has been ratified by both parties. Given that both Ukraine and Russia are parties to the Terrorism Financing Convention and CERD, Ukraine invoked those two instruments as the basis for its action before the ICJ. Although the choice of the conventions as a jurisdictional basis is rather peculiar, it is explained by the fact that none of the treaties ratified by Russia and Ukraine provide for a jurisdictional basis to address the real issue at stake i.e. the unlawful use of force. Therefore, Ukraine followed in the footsteps of Georgia and alleged the breach of CERD, claiming Russia’s denial of rights – accorded by CERD Convention – to non-Russian ethnic groups, such as the Crimean Tatar and ethnic Ukrainian communities in Crimea. The jurisdictional basis for Ukraine’s action before the ICJ could be found in Article 22 of CERD:

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in his Convention, shall at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

When the same article was invoked by Georgia as a jurisdictional basis for its claims, Russia argued that Georgia did not honour the procedural requirements in CERD. It contended that Georgia failed to adduce evidence demonstrating that it attempted to negotiate or employ any other mechanisms provided for in CERD to resolve the dispute. The Court upheld Russia’s preliminary objection and dismissed the case on procedural grounds, concluding that Georgia neither attempted to negotiate CERD-related matters with the Russian Federation nor invoked any other procedures expressly provided for in CERD to settle the dispute (ICJ Georgia v Russia, paras 182-183).

Ukrainian officials have earlier stated that they were building up the case against Russia by attempting to negotiate in good faith with Russia over the alleged violations of both conventions, which is the prerequisite for bringing the case before the ICJ. Judging by Russia’s response to Ukraine’s lawsuit in the commentary posted by the Russian MFA, Russia clearly has a different perception of Ukraine’s negotiation attempts. It maintains that despite Russia’s “genuine” attempts to clarify the nature of Ukraine’s claims with respect to the alleged violations of the UN Terrorism Financing Convention, it encountered “persistent unwillingness of Ukrainian authorities to engage in the substantive dialogue”, which “ultimately ended with Ukraine’s unilateral withdrawal from consultations”. Russia also stated that Ukraine dismissed the prospect of settling the dispute through an independent arbitration tribunal and claimed that “Ukraine does not seek to settle the dispute, but rather attempts to find any excuse to bring the case before the ICJ”. The settlement of dispute provided for in the Terrorism Financing Convention differs from the settlement mechanism provided for in CERD. Article 24 of the Terrorism Financing Convention reads as follows: “any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation within a reasonable time shall, at the request of one of them, be submitted to arbitration”. The same article imposes the six-month period from the date of the request for arbitration, during which the arbitration mechanism for the dispute should be in place, before the case could be brought up before the ICJ.

As to Ukraine’s claims on the violation of CERD, Russia maintained that it engaged in the dialogue with Ukraine in good faith, however, Ukraine “showed the lack of interest in the substantive discussion of the issues at dispute”. Russia submits that it suggested to Ukraine to compare Russian and Ukrainian legislation on racial discrimination “in order to find a common understanding of the best way to protect the people’s rights and substantively deal with each specific situation”. It is not entirely clear what exactly Russia was trying to get out of the suggested “comparative exercise”, as the parties had to attempt to negotiate their way out of the impasse, rather than exchange best practices on the implementation of the Convention. Russia also claimed that it encouraged Ukraine to review its practices with respect to the implementation of the Convention in Crimea “prior to its reunification with Russia”. It is clear that Russia advanced a flipside argument and, in doing so, attempted to divert the attention from the current issues at stake. It also maintains that Ukraine ignored its questions regarding the rights of the Russian and Russian speaking population in Ukraine, which are not relevant to the current dispute.

Although negotiations were attempted, the parties do not seem to have communicated about the same issues which form basis for Ukraine’s action before the ICJ. The ICJ judges will have to evaluate whether negotiations within the meaning of both conventions indeed have taken place. A helpful guidance could be found in the case of Georgia v Russia, in which the ICJ construed what constitutes negotiations and to what extent they have to be pursued before it can be concluded that the requisite preconditions for bringing the case before the ICJ have been met:

Negotiations entail more than the plain opposition of legal views or interests between two parties (…). As such, the concept of “negotiations” (…) requires (…) a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute (ICJ Georgia v Russia, para. 157).

Proving that that both parties made a genuine attempt to engage in discussions, with a view of resolving the impasse, may prove to be a stumbling block in the proceedings. Of course, an attempt to negotiate does not have to lead to an actual agreement (ICJ Georgia v Russia, para. 158). However, the absence of evidence demonstrating a “genuine attempt to negotiate” would translate into the failure to meet the required preconditions. In the situations “where negotiations are attempted or have commenced”, the preconditions would be considered to be met “when there has been a failure of negotiations, or when negotiations have become futile or deadlocked” (ICJ Georgia v Russia, para. 159). Russia’s litigation strategy would most probably be to undermine Ukraine’s attempts to negotiate as being genuine. Ukraine would most likely maintain that the negotiations have become futile or deadlocked. The ICJ judges will have a difficult task to ascertain whether the procedural preconditions have been met given a highly politicised context, which underlines the ongoing dispute.

Substantive Law Issues

With respect to the violations of the Terrorism Financing Convention, Ukraine alleged that since 2014 Russia has escalated its interference in Ukrainian domestic affairs by “intervening militarily in Ukraine, financing acts of terrorism, and violating the human rights of millions of Ukraine’s citizens”. Ukraine submitted that by instigating and sustaining an armed insurrection in eastern Ukraine, Russia violated fundamental principles of international law enshrined in the Convention. In light of the on-going armed conflict in eastern Ukraine, which has been recognised by the ICRC, various international NGOs and more recently by the ICC Prosecutor as being governed by the rules of international humanitarian law, one cannot help but wonder whether the choice of the convention is the right one. Although the government of Ukraine treats rebels who are fighting in eastern Ukraine as “terrorists”, the international community has described the situation in Ukraine as “hybrid warfare” where an international armed conflict runs in parallel to a non-international armed conflict. As the response to Ukraine’s claims with respect to the violation of the Convention, Russia maintains that Ukraine did not provide any information that was supportive of its allegations on the breach of the Convention. It also hinted that the situation in eastern Ukraine is governed by the rules of international humanitarian law, questioning Ukraine’s treatment of the DPR and the LPR representatives as “terrorists” in light of their earlier participation in the Minsk process with the view to resolve the dispute. The same objection on substantive law will be inevitably advanced by Russia in the ICJ. Ukraine’s rationale behind invoking the Convention as a jurisdictional basis is well understood, however, the prospect of the ICJ going into the substance of those claims is very slim, since a more accurate description of the situation in eastern Ukraine would be the violation of the rules and customs of war.

Ukraine has better chances to succeed with its claims under CERD. With respect to the violations of CERD, Ukraine argued that after Russia seized Crimea by military force and attempted to legitimize its act of aggression through the illegal referendum, it created a climate of violence and intimidation against non-Russian speakers in Crimea that violates their rights under CERD. In its response, Russia evades to address the issues of the impact of the annexation of Crimea on the rights of non-Russian ethnic groups in Crimea by stating that it “pays great attention compliance with its obligations under CERD”. If the Court were to proceed with the examination of Ukraine’s claims under CERD, it would not be able to rule narrowly on the issues pertinent to the violations of CERD, without addressing the context in which the alleged breaches have taken place. However, the Court will not provide answers that Ukraine wants to hear on the use of force and the legality of Crimea’s unilateral cessation, as it is limited to the examination of claims that strictly fall within CERD. If Ukraine wants to get answers to those questions, it should consider lobbying for the initiation of advisory proceedings before the ICJ at the request of the UNGA. If this were to happen, it is hoped that the UNGA learnt from the Kosovo advisory proceedings and the question to be submitted for consideration to the ICJ would be broad enough for the Court to give some meaningful answers and clarify the state of international law today (on the ICJ Kosovo advisory proceedings, see earlier Akande’s and Milanovic’s posts).

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12 Responses

  1. Nick Notan

    “… it is hoped that the UNGA learnt from the Kosovo advisory proceedings and the question to be submitted for consideration to the ICJ would be broad enough for the Court to give some meaningful answers and clarify the state of international law today”

    And hopefully the UNGA would submit a similarly broadened question for new Kosovo advisory proceedings then.

  2. Erwin Cruz

    Dear Iryna
    Thanks for this post. Could you elaborate on why you feel the Terrorism Financing Convention would be displaced by IHL in this scenario? Why couldn’t the Convention and the full body of IHL operate in parallel (perhaps especially if the focus of the litigation is going to be the MH17 incident)? Also, even if the conflict is considered a hybrid conflict today to which IHL applies, it may not be the case that this classification applied at the time of the MH17 incident.

  3. Iryna

    Dear Erwin,

    Thank you for your comment. By virtue of a jurisdictional clause, the ICJ will not be able to look beyond the claims advanced by Ukraine with respect to the violations of the two conventions. In other words, even if the ICJ wanted to address the IHL related matters, it would not have the jurisdiction to do so. You made a really good point about MH17 and whether the ICJ could narrowly focus on that incident, while addressing the violations of the Terrorism Financing Convention. However, it remains unclear whether the downing of the plane was an act of terrorism or a war crime (if we were to accept that the crime took place in the context of an armed conflict). In the case of the latter, the ICJ wouldn’t simply have the jurisdiction to deal with the matter. I looked into the prospect of the ICC assuming the jurisdiction over the downing of MH17 in the article published with the Vanderbilt J of Trans Law last year (see pp 368-369) Free download is available here https://wp0.its.vanderbilt.edu/jotl/wp-content/uploads/sites/78/2.-Marchuk.pdf

    Best regards,

    Iryna

  4. Isdore Ozuo

    Interesting read! Thank you.
    One thing I find fascinating is the language of Article 22 of CERD which is the jurisdictional basis of Ukraine’s action before the Court. It appears from the provision that a party cannot unilaterally file an application before the ICJ even when the parties have failed to settle the dispute through negotiation.For avoidance of doubt, the provision is reproduced:

    Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in his Convention, shall at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision unless the disputants agree to another mode of settlement.

    ‘[B]e referred’ as used in the provision envisages consent of both parties when they feel that negotiation cannot resolve the dispute. To be sure, any of the parties can suggest that the matter be dealt with by the ICJ and if agreeable to both parties then the dispute shall be referred to the Court. It is difficult to ‘give life’ to last clause in that provision if any of the parties, without the consent of the other, files an action before the ICJ when the party feels that negotiation has broken down. Thus, the consent of the parties is needed to approach the ICJ or resort to ‘another mode of settlement’ as contemplated in the article. if this interpretation is correct, then any objection from Russia is enough to remove the lawsuit from ICJ’s docket.

  5. Erwin Cruz

    Dear Iryna
    Thanks for your response. I think I didn’t ask my question in the best way. I don’t mean to suggest that the International Court of Justice would have jurisdiction over IHL claims, also. It is more a question of why you think the Terrorism Financing Convention would not have application just because the events in question happen to be taking place during an armed conflict. I can see how Article 2(1)(b) could make it difficult for actions taken during armed conflict to be the subject of a claim under the Terrorism Financing Convention, but what about Article 2(1)(a), which would cover an offence under the 1971 Montreal Convention on Civil Aviation, for example? So just taking the MH17 case, I’m not seeing an obvious reason why a claim about that incident would not be covered by the Terrorism Financing Convention just because it happened during an armed conflict–and even if it could also be described as a war crime. But maybe I’m missing something. Thanks again for replying to my question.

  6. Iryna

    @Isdore Thank you very much for your comment. Interesting read of Article 22 of CERD! I just looked through the judgment in Georgia v Russia to see if I can find any definitive answer, but this point was not really addressed, as the focus was on the existence of negotiations between two countries prior to bringing the case before the ICJ. I personally read “at the request of any parties to the dispute” as allowing for the action to be taken by one party (provided that the other two options of the dispute settlement had failed). I see where you are coming from, however, if this very narrow textual reading were to be adopted the ICJ judges, bringing the case under CERD to the ICJ would prove to be nearly impossible.

    @Erwin Thank you very much for clarifying your point and drawing my attention to Art 2(1)(b) of the Terrorism Financing Convention that also makes references to terrorism financing in the times of an armed conflict. I got your point about the possibility of the concurrent application of IHL rules and the Convention. While I cannot give any definitive answer as to the potential interpretation of the Convention at the ICJ, I believe that the ultimate question to be answered is who shot down the plane. Are we talking about the rebel group, a party to an armed conflict, over which Russia allegedly exercised effective control? Or are we talking about terrorists (unconnected to an armed conflict) who were allegedly financed by Russia? The answer to this question should determine which body of law applies. This is my best take on the issue, but I am very interested to hear what others have to say about it.

    Great comments so far from all discussants! Thank you!

    Best regards,

    Iryna

  7. Nick Notan

    Dear Iryna,

    With regard to “…the ultimate question to be answered is who shot down the plane. Are we talking about the rebel group … over which Russia allegedly exercised effective control? Or are we talking about terrorists … who were allegedly financed by Russia?”

    I am afraid that we should be talking about some other party.

    Prof. Stiglmeier from Linz stated that he did not believe that it could be a targeting error: https://youtu.be/q5TlMLT-TGQ?t=1732

  8. Iryna

    Hi Nick,

    Thank you very much for sharing the link. There are many conspiracy theories, so it is really hard to say. BBC aired an interesting documentary about MH17 looking into various theories as to who shot down the plane http://www.bbc.co.uk/programmes/b0791ns4

  9. Nick Notan

    Dear Iryna,

    Thank you very much for your response. While the bbc documentary seems to be no longer available, I of course know that there are many different theories, and that there are different opinions on which of them are conspiracy theories and which are not.

    In particular, imho, a false flag attack cannot be written off as a conspiracy theory due to one of the Operation Northwoods options:

    “It is possible to create an incident which will demonstrate convincingly that a Cuban aircraft has attacked and shot down a chartered civil airliner en route from the United States to Jamaica, Guatemala, Panama, or Venezuela”

    BTW, the above quote was cut from the respective Wikipedia article since 2014, probably because it is too disturbing for a bigger audience, but it is in internet archive and in the US officially published documentation.

    While I could not check your bbc link, I think that the press did a very poor job in case of MH17. For example, I did not see any early reports that one launch point was claimed by Ukraine (Chernukhino) and another was claimed by the US (near Snizhne). And these points are pretty far from each other. (I found this myself when compared different reports). So, at least one party might have submitted falsified evidence (or made false statements if they did not share the evidence in the end).

    In some sense, it might be interesting to see how various courts, including ICJ, will decide in future which evidence is reliable and which is not reliable, irrelevant, or even falsified. But, unfortunately, it is likely that it will be more painful, than interesting. Of course, this relates not only to the case of MH17, but to all cases where “us vs. them” card can be played.

    Best regards,

    Nick

    P.S. Just to make it completely clear, I am not in favor of any particular MH17 theory at the moment. And I am sorry for mistyping Prof. Stadlmeier’s name in the previous message.

  10. […] Relatives of victims have sued a former rebel leader; the company that produces the Buk anti-aircraft missiles at the centre of the controversy unsuccessfully tried to have sanctions repealed at the European Court of Justice; and Ukraine has filed a suit against Russia before the International Court of Justice, partly relying on the dispute settlement clauses of the Terrorism Financing Convention. […]

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