Unfulfilled Promises of the ICJ Litigation for Ukraine: Analysis of the ICJ Judgment in Ukraine v Russia (CERD and ICSFT)

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1. Summary and Context

On 31 January 2024, the ICJ delivered its long-awaited Judgment on the merits in the case Ukraine v Russia concerning alleged violations of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). It was a sobering experience for those who followed the case closely, as the vast majority of Ukraine’s claims were rejected. Notwithstanding a broad range of claims advanced by Ukraine against Russia under both Conventions, the ICJ narrowly found (13:2) that Russia violated Article 9(1) of ICSFT due to its failure to investigate individuals who allegedly committed terrorism financing offences based on information received from Ukraine, and violated Articles 2(1)(a) and 5(e)(v) of CERD with regard to the way in which it implemented its school education in the Ukrainian language in Crimea (Judgment, para. 404). Ukraine may find some consolation in the fact that the ICJ found that Russia violated its obligations under the 2017 provisional measures order, which obliged Russia to lift restrictions on the Mejlis, the highest representative executive organ of Crimean Tatars in Crimea banned by Russian authorities, and imposed the non-aggravation measure (paras 392, 398, see Marchuk). Given that Russia failed to comply with the ICJ order, the violations found in the final judgment will not fundamentally change its non-compliance stance.

While it is not a revelation that the ICJ is a conservative judicial body, the Court’s very narrow interpretation of ICSFT, as well as its application of CERD to the facts on the ground in Crimea, have been somewhat discouraging not only to Ukrainians who placed high hopes on the ICJ litigation, but also to the wider international law community. A raft of dissenting and separate opinions, which accompanied the Majority Judgment, demonstrate the ICJ judges were divided on those key issues, such as the interpretation of ‘funds’ under ICSFT (Separate Opinion of Judge Bhandari, Separate Opinion of Judge Charlesworth, Separate Opinion of Judge ad hoc Pocar cf. Separate Opinion of Judge Ad Hoc Tuzmukhamedov), the scope of non-aggravation measures (Declaration of Judge Bennouna, Declaration of Judge Yusuf, Separate Opinion of Judge Ad Hoc Tuzmukhamedov cf. Dissenting Opinion of Judge Sebutinde, Separate Opinion of Judge Charlesworth), the treatment Russia’s ban of the Mejlis under CERD (Separate Opinion of President Donoghue, Dissenting Opinion of Judge Sebutinde, Separate Opinion of Judge Charlesworth, Separate Opinion of Judge ad hoc Pocar cf. Separate Opinion of Judge Ad Hoc Tuzmukhamedov).

Ukraine willingly took the risk of being a guinea pig for the litigation before the ICJ, despite the absence of any case law that construed substantive law provisions of both Conventions. None of the CERD cases previously brought before ICJ reached the merits stage (Georgia v Russia, Qatar v United Arab Emirates, Armenia v Azerbaijan), while the ICSFT case was never tested by ICJ. There was little predictability as to how the ICJ judges will construe both Conventions, with some limited insights that the ICJ offered at the provisional measures and preliminary objections stages. The narrow scope of the provisional measures indicated by the ICJ only under CERD did not bode well for Ukraine. The Judgment on the Preliminary Objections killed enthusiasm within the academic community that obligations under ICSFT will be construed broadly in a way that would allow the prohibition of state sponsored terrorism to be read into the duty to prevent terrorism financing offences under ICSFT (Preliminary Objections Judgment, paras 59-60, see Marchuk).

2. ICSFT

Ukraine’s reliance on ICSFT was a gamble to begin with. The expectations for a positive outcome for Ukraine under ICSFT began to dwindle when the ICJ refused to indicate provisional measures under the Convention for the lack of evidence to find it plausible that mens rea for terrorism financing offences and its underlying offences was present (Order, para. 75). Although I earlier predicted that mens rea would largely determine the outcome of Ukraine’s case under ICSFT, it turned out to a be a narrow interpretation of the notion of ‘funds’ (resources provided or collected for their monetary and financial value) that sealed its fate (Judgment, para. 53). The Majority ruling excluded “the means to commit acts of terrorism” (i.e., weaponry, training of militia groups) from the definition of ‘funds’ (Ibid.). As a result, key aspects of Ukraine’s case concerning MH17 and the supply of weapons to pro-Russian militia groups for shelling civilians in Donbas crumbled.

While the Majority only established a single violation under ICSFT with respect to Russia’s failure to investigate individuals for alleged terrorism financing offences upon receiving information from Ukraine, dissenting judges pointed to additional violations which could be attributed to Russia, in particular those relating to 1) the obligation to prosecute under Art 10 (Separate Opinion of Judge ad hoc Pocar); 2) the obligation to afford the greatest assistance in the investigation of alleged terrorism financing offences under Art 12 of ICSFT (Separate Opinion of President Donoghue and Dissenting Opinion of Judge Sebutinde); 3) the obligation to undertake all practicable measures to prevent and counter preparation for the commission of terrorism financing offences under Art 18 (Dissenting Opinion of Judge Sebutinde). The utility of ICSFT for future litigation before the ICJ is doubtful. Such narrow interpretation of the scope of ‘funds’ and obligations under ICSFT would be disheartening to any party that wishes to pursue proceedings on the basis of alleged breaches under ICSFT.

3.CERD

The most discouraging aspect of the case is the application of CERD to Russia’s discriminatory practices in Crimea. This part of the case had the most potential to be adjudged in Ukraine’s favour. The ICJ repeatedly found that Ukraine did not furnish the ICJ with convincing evidence demonstrating that discriminatory acts against Crimean Tatars and ethnic Ukrainians were based on their ethnic origin rather than their political opposition. It also failed to establish indirect discrimination, specifically that Russian measures, including the ban on the Mejlis, had a disparate adverse effect on the rights of Crimean Tatars.

Differential treatment of Crimean Tatars and ethnic Ukrainians on political grounds does not preclude that such treatment was not also based on their ethnic origin (Separate Opinion of Judge Charlesworth, para. 32). As rightly observed, one cannot always isolate ethnic identity from political views (Separate Opinion of President Donoghue, para. 17; Dissenting Opinion of Judge Sebutinde, para. 32). The ICJ failed to take into consideration a broader context in which discriminatory practices were carried out by Russian occupation authorities. Over 100,000 Crimean Tatars and ethnic Ukrainians were forced to flee Crimea, as they were subject to Russia’s pervasive discriminatory measures implemented by Russian occupation authorities. The pro-Ukrainian position of Crimean Tatars and ethnic Ukrainians was often assumed on the basis of their ethnicity. Russia’s attempts aimed at altering demographic composition of Crimea by incentivising ethnic Russians to relocate to the peninsula demonstrates that Russia deliberately created conditions aimed at disadvantaging and discriminating ethnic Ukrainians and Crimean Tatars by driving them out of Crimea. It is somewhat puzzling that the Majority was unable to see beyond discrimination on the political grounds. The ban of the Mejlis constitutes an act of racial discrimination; it undeniably had the effect of impairing the rights of Crimean Tatars (Separate Opinion of President Donoghue, paras 2-26; Dissenting Opinion of Judge Sebutinde, paras 25-32;  Separate Opinion of Judge Charlesworth, paras 31-32ft).

4.The Outcome for Ukraine and Beyond

The case can hardly be hailed as a ‘historic’ and ‘unprecedented’ victory for Ukraine as described by Covington and Burling LLP, a US law firm representing Ukraine in the ICJ. Ukraine hoped that it would be able to obtain remedies from Russia for the harm caused to Ukraine by Russia’s internationally wrongful conduct in Crimea and Donbas prior to Russia’s full-scale war. However, in light of the very narrow scope of the established violations under CERD and ICSFT, the ICJ did not find it necessary or appropriate to order an extensive list of remedies requested by Ukraine (Judgment, paras 148-150, 371-374, 401-403). This is a huge blow for Ukraine as it has sustained huge financial losses following the occupation of Crimea and the outbreak of Russia’s proxy war in Donbas. Not that Russia would comply with any damning judgment against it and willingly pay reparations to Ukraine even if they were ordered by the ICJ. However, a strong judgment on the merits in favour of Ukraine had the potential of being used by the Ukrainian government when lobbying to confiscate frozen Russian assets. Ukraine spent exorbitant amounts of money on the ICJ litigation by hiring Covington and Burling LLP to represent its legal interests in the ICJ (both in this case and another case concerning the alleged violations of the Genocide Convention) and inter-State arbitration proceedings under UNCLOS. Only for the last quarter (Q4) of 2023, the Ukrainian MFA paid a staggering 4 million USD in legal representation costs to the law firm. As the case was filed in 2017 and only completed in 2024 (with the second case pending on the merits), the final cost must be enormous and difficult to justify for the war-torn country.

The reactions in Ukraine and Russia to the ICJ judgment ranged from sober in Ukraine to celebratory in Russia. The Ukrainian MFA issued a brief press release which states that ICJ found that Russia violated both CERD and ICSFT, and confirmed Russia’s contempt for international law. The Russian MFA published two elaborate press releases (here and here), which commended the ICJ for “having heard Russia” in parts where the ICJ did not attribute any violations to Russia. Both press releases emphasize that Russia was not ordered to pay reparations and therefore, the final judgment cannot be leveraged by Ukraine to lobby for the confiscation of ‘stolen’ Russian assets. 

The ICJ has seen the surge of cases arising out of the conflicts and linked to atrocity crimes in various parts of the world, with parties (both injured and non-injured states) bringing proceedings before the ICJ invoking international instruments, such as the Genocide Convention and CERD (The Gambia v Myanmar, South Africa v Israel, Armenia v Azerbaijan). While the international legal community has been enthusiastic about the role that the ICJ can potentially play in advancing the international justice agenda, the ICJ does not appear to be too keen on assuming this role and is treading cautiously in uncharted territories. At some point, the ICJ will need to get out of its comfort zone if it wishes to preserve its legitimacy.   

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