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The ICJ Issues Provisional Measures Against Russia on Ukraine’s Racial Discrimination Claims

 

Russian media are reporting that the International Court of Justice (ICJ) “rejected” Ukraine’s request for provisional measures against the Russian Federation in the case Ukraine filed recently before the Court (my backgrounders are here, here, and here).  Not surprisingly perhaps, these outlets are peddling an incomplete account.

While the ICJ did decline to issue provisional measures under the International Convention for the Suppression of the Financing of Terrorism (ICSFT), it did in fact issue provisional measures with respect to the Ukrainian claims founded on the Convention on the Elimination of all forms of Racial Discrimination (CERD). The full opinion is here.

In this regard, the ICJ—citing reports of the Office of the High Commissioner for Human Rights—found that the Crimean Tatars and ethnic Ukrainians in Crimea remain vulnerable when it comes to their full enjoyment of the political, civil, economic, social, and cultural rights set forth in Article 5 of CERD. In its order on provisional measures (akin to an injunction, which is issued prior to the Court reaching the full merits), the ICJ directed Russia to 

  • Make education in Ukrainian language available in Crimea,
  • Refrain from imposing measures enabling Ukrainians to work through their representative institutions, such as the Mejlis, and
  • Ensure the non-aggravation of the dispute between the parties.

The Court also reminded the parties of their obligations to implement the Package of Measures for the Implementation of the Minsk Agreements (2015) unanimously endorsed by the U.N. Security Council (Resolution 2202). Provisions of these Agreements call for the imposition of a comprehensive ceasefire, the removal of heavy weapons and foreign armed troops from regions of Ukraine, the disarmament of illegal groups, the creation of a security zone, etc.  The Court indicated that it expects the parties

through individual and joint efforts, to work for the full implementation of this “Package of Measures” in order to achieve a peaceful settlement of the conflict in the eastern regions of Ukraine.

The Court indicated that it would not issue provisional measures on Ukraine’s terrorist financing claims because Ukraine had put forth insufficient evidence at this stage in the proceedings to justify such extraordinary measures.  In particular, Ukraine had argued that it has a right under Article 18 of the ICSFT to Russian cooperation in preventing the financing of terrorism.  The Court, however, appeared skeptical that the acts complained of constitute offenses under Article 2 of the ICSFT, which prohibits the provision of 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 of terrorism as defined by an array of international treaties or (b) any other act intended to cause death or serious bodily injury to a civilian 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.

The ICJ specifically noted deficiencies in the record with respect to the various mens rea elements in the above definition. The ICJ did, however, indicate that the parties’ obligations under the ICSFT remain intact.

The point of preliminary relief is to preserve the respective rights claimed by the parties in a case pending a final decision on the merits. To grant provisional measures, the Court must be satisfied that the applicant’s claims are plausible and that there is a real and imminent risk that the party will suffer irreparable prejudice to its rights were the requested measures not imposed.  There must also be “a link” between the measures that the party requests and the rights that are claimed to be at risk of irreparable prejudice. This standard is similar to that employed in the United States for the granting of a preliminary injunction during the pendency of litigation (high likelihood of success on the merits and the probability of irreparable harm)—an extraordinary remedy in most courts of law.

The biggest wins for Ukraine, perhaps, are the rulings establishing that the Court indeed has prima facie jurisdiction over its claims against Russia.  The Court thus agreed with Ukraine that there was a dispute arising out of the interpretation and application of the two multilateral treaties and that Ukraine’s claims fairly fell within the obligations imposed upon Russia by those treaties. Russia, by contrast, had tried to argue that the acts complained of by Ukraine did not fall within the definition of acts of terrorism in the ICSFT or within the anti-discrimination provisions of the CERD. In addition, Russia had argued that Ukraine had not satisfied the procedural preconditions for the ICJ’s jurisdiction in the sense that it had not tried to resolve the dispute directly through negotiations (as required by the CERD and ICSFT) or arbitration (as additionally required by ICSFT) before resorting to the Court.

The ICJ will now move to the merits phase of the case.

Image: Spencer Platt/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).