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Ukraine v. Russia: Before the International Court of Justice

With all the news around President Donald Trump taking office, and the mass protests, controversial executive orders, and pending lawsuits that followed, it may have escaped notice that Ukraine filed suit against the Russian Federation before the International Court of Justice (ICJ) on January 16 (the official Application is here).  Ukraine has accused Russia of “intervening militarily in Ukraine, financing acts of terrorism, and violating the human rights of millions of Ukraine’s citizens,” following a March 2014 “referendum” in Crimea that the United Nations has condemned and that many analysts believe was held “at gunpoint.”  Ukraine’s claims are premised on two multilateral treaties, both of which grant jurisdiction to the ICJ for disputes involving their interpretation or application:

Ukraine’s Application to the Court presents a mix of overlapping claims, covering at once allegations of Russia’s financing of terrorism in the region, as well as its persecution of ethnic minorities within Ukraine, including the mistreatment of Crimean Tatars and the destruction of cultural property. The Application describes this as

a deliberate campaign of cultural erasure.

Ukraine also seeks immediate provisional measures (equivalent to a temporary injunction or restraining order) to prevent ongoing harm and to protect the fundamental human rights of people in Ukraine.

This new suit joins prior legal efforts by Ukraine to seek redress for events in Crimea before other international courts, including the International Criminal Court (ICC) and the European Court of Human Rights, as discussed below. Notably, in none of these cases is the legality of Russia’s use of force, per se, directly at issue, because there is no international court with jurisdiction over any claims Ukraine may have.  Ukraine has, however, prosecuted some individual Russians for the crime of waging “aggressive war” under an idiosyncratic penal code provision.  However, all of these international courts will be in a position to adjudicate the destructive consequences of Russia’s annexation of Crimea and its intervention in eastern Ukraine.

Ukraine’s Human Rights Claims Before the ICJ

Ukraine’s human rights claims are premised on CERD’s prohibition of “racial discrimination,” which is broadly defined (Article 1(1)) to include

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.

CERD signatories are under an obligation not to engage in racial discrimination and to refrain from sponsoring, defending, or supporting racial discrimination by any persons or organizations under their jurisdiction. States parties must also guarantee the right to everyone—without distinction as to race, color, or national or ethnic origin—to equality before the law and the enjoyment of a whole range of civil, political, economic, social, and cultural rights (Article 5). These include the rights to: freedom of movement, freedom of thought and religion, freedom of peaceful assembly, political participation, work, and equal participation in cultural activities.

Since the occupation and annexation of Crimea, Crimean Tatars and other ethnic groups have been subjected to systematic mistreatment, discrimination, and repression, involving extrajudicial killings, abductions, and disappearances as well as violations of the rights of assembly, of religion, to a fair trial, and to freedom of speech.  This includes a crackdown on journalists as well as restrictions on learning or speaking the Tatar and Ukrainian languages. In addition, manifestations of Ukrainian heritage and cultural property have been destroyed, and the Mejlis, the self-governing representative body of the 300,000 Tatars in Crimea, has been banned.

The U.N. General Assembly (Resolution A/C.3/71/L.26 of October 2016) and the U.N. High Commissioner for Human Rights have strongly condemned these abuses and acts of discrimination. Many of the United Nations’ human rights experts (so-called “Special Procedures” mandate holders) have visited Ukraine, including the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Execution, the Special Rapporteur on the Human Rights of Internally Displaced Persons, the Special Rapporteur on Minority Issues, and the Working Group on Arbitrary Detention.

Ukraine asks the Court to find Russia in breach of CERD by (inter alia) systematically discriminating against the Tatars and other ethnic Ukrainian communities, holding an unlawful referendum, suppressing the political and cultural expression of the Tatar people, perpetrating and tolerating a campaign of disappearances and killings, and breaching other human rights.

Terrorism Claims Before the ICJ

Ukraine’s terrorism claims are premised on allegations that Russia is supplying arms and funds to terrorist groups operating in Ukraine, including the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR).  Evidence of Russian support and control of the separatists abounds. The Terrorist Financing Treaty prohibits the financing of acts of terrorism (Article 2):

Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(a) An act which constitutes [terrorism as defined by a list of international treaties]; or

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

States parties are obliged to take all measures to prevent (Article 18) and prosecute the commission of this offense by individuals (Articles 4-7, 9-10) and legal entities (Article 5), including through the identification, detection and freezing or seizure of any funds used to finance terrorism (Article 8) and the provision of mutual legal assistance to other states pursuing prosecutions (Article 12).

The Ukrainian Application to the ICJ charges Russia with being in breach of the whole range of its obligations under the Terrorism Financing Treaty.  It cites a number of terrorist acts within Ukraine—including the bombardment of residential areas and attacks on civilians, a civilian bus, and a peaceful rally—all allegedly sponsored by Russia.  In addition, the ICJ will consider Russia’s responsibility for the downing of Malaysian Airlines flight MH-17 by pro-Russian rebels in Eastern Ukraine, who launched a Russian-made surface-to-air Buk missile, killing all 298 people onboard. Most of the passengers, en route to Kuala Lumpur from Amsterdam, were Dutch citizens, including close to 100 children. The Dutch sought the establishment of something akin to the Lockerbie Tribunal, but Russia—not surprisingly—vetoed the Security Council resolution that would have established such a hybrid tribunal. A U.N. Joint Investigation Team, blessed by the Security Council and composed of criminal law experts from five nations, has issued a report that strongly implicates Russia. Russia has, of course, rejected the JIT’s conclusions. Accordingly, the ICJ may be the only court to adjudicate Russian responsibility for these deaths.

Ukraine has asked the Court to order Russia

  • to stop supporting terrorist groups and providing weaponry to armed groups in Ukraine;
  • to exercise control over its border;
  • to prevent further acts of terrorist financing;
  • to halt the movement of arms, funds, and materiel to Ukraine;
  • to cooperate with Ukraine’s efforts to investigate and prosecute acts of terrorism on its territory; and
  • to make reparation for the shelling of civilians and civilian areas, and the downing of MH-17.

In its request for provisional measures, Ukraine seeks an order halting Russia’s arms transfers and the provision of other forms of material support for armed groups carrying out terrorist attacks in Eastern Ukraine as well as Russia’s acts of political and cultural suppression.

In recent years, Russia has taken a strong stand against the financing of terrorism—indeed in 2015, Russia and the United States co-sponsored a resolution in the Security Council to strengthen international efforts to stop the funding of ISIL in the first meeting of finance ministers from member states—so there is some irony to this set of allegations.

Russia’s Response So Far

In an online statement, the Russian government simply fell back on arguments that ultimately prevailed in the proceedings brought by Georgia against Russia before the ICJ. In short, it argues that the parties have not sufficiently negotiated Ukraine’s claims. This argument reflects the fact that CERD provides that only those disputes not settled by negotiation can be referred to the ICJ. The Terrorism Financing Convention also requires one party to submit the matter to arbitration. Only once the parties are unable to agree on the organization of the arbitration may a party refer the matter to the ICJ. Russia claims that Ukraine has not satisfied these procedural preconditions for ICJ jurisdiction.

In its Application, by contrast, Ukraine indicates that it

has made extensive efforts to negotiate a resolution to the dispute, including the exchange of more than 40 diplomatic notes and participation in four rounds of bilateral negotiation sessions.  However, the Russian Federation largely failed to respond to Ukraine’s correspondence, declined to engage on the substance of the dispute, and consistently failed to negotiate in a constructive manner.

Ukraine eventually delivered the necessary request for arbitration, but apparently no agreement on arbitral modalities (e.g., rules of procedure, etc.) could be reached.  Given that Ukraine has spent a much more time attempting to resolve the dispute than Georgia did before filing its suit, Ukraine’s suit before the ICJ appears ripe.

In the meantime, there has been “an upsurge in fighting between pro-Russian rebels and government forces in eastern Ukraine,” which the EU says, “is an outright breach of the Minsk truce accords, which are tied to sanctions against Moscow,” according to AFP.

Other Efforts Before International Courts

Since Russia’s unlawful annexation of Crimea, Ukraine has actively pressed its claims before an array of international courts: the International Criminal Court, the European Court of Human Rights, and even the Law of the Sea Tribunal.  In addition, private claimants, including European firms, have brought claims against Russia before the Permanent Court of Arbitration (PCA) in The Hague that turn on the legal status of Crimea under international law.

The International Criminal Court (ICC)

In April 2014, Ukraine lodged an Article 12(3) Declaration before the ICC accepting ad hoc jurisdiction from November 21, 2013, through February 22, 2014, corresponding to the violent crackdown of the Euromaidan protests, when Ukrainians took to the streets to protest former Ukrainian President Yanukovych’s failure to ratify a treaty with the European Union.  A second declaration filed in September 2015 accepted jurisdiction from February 20, 2014, onward.  That declaration specifically mentions “crimes against humanity and war crimes committed by senior officials of the Russian Federation and leaders of terrorist organizations ‘DNR’ and ‘LNR.’” (Notwithstanding these references, the Prosecutor will consider the entire situation in any preliminary examination, investigation, or prosecution).  The downing of MH-17 falls within that latter period of time. While that tragic act may be unlawful under ordinary domestic law or human rights law, it is not clear if it would constitute a war crime or crime against humanity under international criminal law, as discussed by Alex Whiting here.

The Prosecutor, as is her practice, has opened a preliminary examination to determine whether the requirements of jurisdiction, complementarity, and gravity are satisfied and to consider whether there are any countervailing interests of justice.  Ukraine has not ratified the ICC Statute, because a 2001 ruling of the Ukrainian Constitutional Court identified a constitutional impediment that has yet to be resolved. In particular, the Court ruled that the ICC’s system of complementarity cannot be reconciled with Article 124 of the Constitution, which states that the administration of justice is the exclusive competence of domestic courts and cannot be delegated.

In November 2016, Russia “unsigned” the ICC Statute, although this largely symbolic act has no implications on ongoing legal proceedings before the Court.

European Court of Human Rights

Ukraine also filed two state-to-state petitions (a rarity before the Court) before the European Court of Human Rights (ECHR) pursuant to Article 33 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), which Ukraine ratified in 1997.  The first petition (Application no. 20958/14) concerns events in Crimea from March 2014 onward when Russia invaded, occupied, and annexed the peninsula. In this petition, Ukraine invoked a number of human rights provisions of the ECHR. Ukraine successfully sought interim measures before the ECHR to enjoin Russia from taking any measures (in particular military action) that “might threaten the life and health of the civilian population on the territory of Ukraine.”

The second petition (application no. 43800/14) concerns the abduction on three separate occasions by Ukrainian separatists of groups of orphans from Eastern Ukraine and their transfer to Russia in the summer of 2014. Ukraine sought emergency interim measures under Rule 39 of the ECHR Rules of Procedure. After the ECHR imposed temporary protective measures, all the children were eventually returned.  Victims have also lodged a number of individual petitions before the ECHR concerning events in Crimea.  Russia is contesting the admissibility of the cases and these proceedings remain pending.  Both ECHR suits will raise the issue of the extraterritorial application of states’ human rights obligations as we have covered at length.

Law of the Sea Tribunal

Ukraine has even invoked the 1982 U.N. Convention on the Law of the Sea (UNCLOS).  The arbitral suit concerns coastal rights in maritime zones adjacent to Crimea in the Black Sea and environs.

It remains to be seen if Ukraine’s legal efforts bear fruit. As the United States’ stance towards the annexation of Crimea is poised to shift under a Trump presidency—from a policy of strong condemnation to one of forgive-and-forget—this community of international courts will be in a position to offer an important counter narrative grounded on international law.

Image: Brendan Hoffman/Getty

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About the Author

Fellow at the Center for Advanced Study in the Behavioral Sciences (CASBS) at Stanford University, Former Leah Kaplan Visiting Professor of Human Rights at Stanford Law School, Former Professor of Law at Santa Clara University School of Law, Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department All views are her own. Follow her on Twitter (@BethVanSchaack).