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.
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).