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INTERNATIONAL COURT OF JUSTICE

UKRAINE v. RUSSIAN FEDERATION

PRIMARY DETAILS OF THE CASE

Case Title:  Ukraine v. Russian Federation

Date of Judgment: 31 January 2024

General List No.: 166

Subject Matter: 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

Presiding Members: President DONOGHUE; Judges TOMKA, ABRAHAM, BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, SALAM, IWASAWA, NOLTE, CHARLESWORTH, BRANT; Judges ad hoc POCAR, TUZMUKHAMEDOV; Registrar GAUTIER.

Abstract

The case of Ukraine v. Russian Federation before the International Court of Justice (ICJ) revolves around alleged breaches of two key international treaties: 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). Filed by Ukraine in 2017, the case challenges Russia’s alleged financing of separatist activities in eastern Ukraine and its discriminatory practices against Crimean Tatars and ethnic Ukrainians following the annexation of Crimea. The ICJ issued provisional measures in April 2017 to safeguard minority rights and Ukrainian-language education. While Russia contested the Court’s jurisdiction and denied the allegations, the ICJ’s 2024 judgment found Russia in violation of provisional measures, particularly concerning the banning of the Mejlis and the suppression of Crimean Tatars’ cultural rights. The judgment illustrates the role and limitations of the ICJ in enforcing treaty compliance amidst ongoing geopolitical conflicts, drawing parallels with previous cases such as LaGrand and Bosnia. It highlights the Court’s strategic use of provisional measures to protect rights but also its challenges in securing comprehensive resolutions in complex disputes.

Keywords: Ukraine v. Russia, ICJ, provisional measures, ICSFT, CERD, Crimean Tatars, international law, treaty obligations, racial discrimination, separatist financing.

Introduction

The conflict between Ukraine and the Russian Federation has posed profound challenges for international law and institutions tasked with dispute resolution. In 2017, Ukraine initiated proceedings against Russia before the International Court of Justice (ICJ), alleging violations of two crucial treaties: 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). Ukraine’s claims center on Russia’s alleged financial support for separatist groups operating in eastern Ukraine and systematic discriminatory actions against ethnic Ukrainians and Crimean Tatars in Crimea following its annexation.

The proceedings have encompassed not only substantive questions regarding treaty breaches but also urgent requests for provisional measures to prevent irreparable harm. The ICJ’s issuance of provisional measures in 2017 aimed to mitigate immediate risks, particularly concerning minority rights and the preservation of Ukrainian-language education. However, the case has also exposed procedural complexities, with Russia raising jurisdictional objections and the Court navigating between political tensions and legal principles. The 2024 judgment, while affirming certain violations, particularly in relation to the rights of Crimean Tatars, also underscored the inherent limitations of international judicial mechanisms in resolving deep-seated geopolitical conflicts. This case study provides insight into the evolving role of the ICJ and the enforcement of international norms amid contemporary interstate disputes.

FACTS OF THE CASE:

On 16 January 2017, Ukraine filed an application with the International Court of Justice (ICJ) against the Russian Federation, alleging 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). Ukraine sought to establish the ICJ’s jurisdiction based on Article 24 of the ICSFT and Article 22 of CERD, along with Article 36 of the ICJ Statute. Alongside the application, Ukraine requested provisional measures under Article 41 of the ICJ Statute to address urgent issues. The Registrar communicated these filings to the Russian Federation and the United Nations, informing all Member States of the proceedings. The Court’s initial actions included informing the parties about their respective rights to choose ad hoc judges due to the absence of judges from the respective nationalities on the Court. Ukraine selected Mr. Fausto Pocar, while the Russian Federation initially chose Mr. Leonid Skotnikov and later Mr. Bakhtiyar Tuzmukhamedov. On 19 April 2017, the Court issued provisional measures requiring Russia to uphold the rights of the Crimean Tatar community and ensure education in Ukrainian in Crimea. In 2018 and 2019, Ukraine raised concerns about Russia’s compliance with these measures, leading to further exchanges of information between the parties. The Court fixed deadlines for the submission of written pleadings, including a Memorial from Ukraine and Counter-Memorial from Russia. Russia raised preliminary objections to the Court’s jurisdiction and the admissibility of Ukraine’s claims, which led to a suspension of merits proceedings and additional hearings on these objections. By November 2019, the ICJ confirmed its jurisdiction and the admissibility of the application. Subsequent procedural steps included extensions for filing pleadings, public hearings, and submission of written comments on expert reports. The Court held public hearings in June 2023, where both parties presented oral arguments. The proceedings involved discussions on the implications of certain arguments raised by the Russian Federation and the opportunity for both parties to respond.

This case represents a complex legal battle over alleged violations of international conventions, with procedural nuances reflecting the ongoing disputes between Ukraine and the Russian Federation.

ISSUES & KEY REMEDIES

The ICJ case “Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation)” involves multiple legal issues stemming from Russia’s alleged violations of international treaties. The primary issues in the case relate to whether Russia violated the International Convention for the Suppression of the Financing of Terrorism (ICSFT) by supporting separatist groups in eastern Ukraine through the financing and supplying of arms, which Ukraine claims led to acts of terrorism, including the downing of Malaysia Airlines flight MH17. Another key issue pertains to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), with Ukraine accusing Russia of discriminatory practices against Crimean Tatars and ethnic Ukrainians in Crimea following Russia’s annexation of the territory in 2014. Ukraine argues that Russia has suppressed these groups’ cultural, political, and educational rights in violation of CERD.

As the petitioner, Ukraine demanded several key remedies from the Court. It sought a declaration that Russia had violated both the ICSFT and CERD and requested that the Court order Russia to cease its alleged violations. Under the ICSFT, Ukraine demanded that Russia be held accountable for financing terrorism in eastern Ukraine and that Russia must refrain from further support of separatist forces. Under CERD, Ukraine requested the Court to compel Russia to reverse its discriminatory policies in Crimea, particularly by ensuring the protection of the rights of Crimean Tatars and ethnic Ukrainians, including the restoration of their political and cultural freedoms. Ukraine also sought reparations for the harm caused by Russia’s actions. These demands reflect Ukraine’s broader goal of addressing both the ongoing conflict in eastern Ukraine and the treatment of minority populations in Crimea through international legal mechanisms.

ARGUMENTS

Ukraine: In its case against the Russian Federation before the International Court of Justice (ICJ), Ukraine alleges numerous violations of international law, specifically under 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). Ukraine contends that Russia has failed to prevent the financing of terrorism within its borders, specifically by allowing Russian state officials, private actors, and other non-governmental third parties to fund illegal armed groups in Ukraine, such as the DPR, LPR, and Kharkiv Partisans. This includes financing terrorism-related activities that resulted in severe attacks such as the downing of Flight MH17 and the shelling of Volnovakha, Mariupol, and Kramatorsk. Ukraine claims that Russia violated its obligations under ICSFT by failing to take practicable measures to stop such activities, including policing its borders with Ukraine, monitoring fundraising activities, freezing assets, and prosecuting individuals involved in terrorism financing. Furthermore, Ukraine argues that Russia has not cooperated in criminal investigations or provided assistance in investigating or prosecuting offenders involved in terrorism financing. Additionally, Ukraine claims that Russia has committed multiple violations of CERD by engaging in pervasive racial discrimination against the Crimean Tatar and Ukrainian communities in Crimea. This includes policies and practices of racial discrimination, failure to ensure equal treatment under the law, promoting racial hatred, and preventing access to education in the Ukrainian language. Ukraine argues that Russia has failed to guarantee the political, civil, and cultural rights of the Crimean Tatar and Ukrainian populations in Crimea, and that its actions constitute severe racial discrimination, violating several articles of CERD. In particular, Russia is accused of not protecting these communities from violence, promoting racial incitement, and failing to provide remedies against discrimination. Ukraine requests that the ICJ declare Russia responsible for these violations and order Russia to cease its activities, adopt preventive measures to stop further financing of terrorism, and ensure compliance with CERD obligations. Additionally, Ukraine seeks financial compensation for the harm suffered as a result of Russia’s violations of the ICSFT and CERD, with moral damages to reflect the gravity of these breaches. Ukraine also asks the Court to mandate Russia’s compliance with the ICJ’s 2017 provisional measures order, which includes lifting the ban on the Mejlis of the Crimean Tatar People and ensuring the availability of education in the Ukrainian language in Crimea.

Russian Federation Response: In response to the claims made by Ukraine, the Government of the Russian Federation has consistently sought dismissal of all allegations. In its Counter-Memorial, Russia requested that the International Court of Justice dismiss Ukraine’s claims under both 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), reserving the right to amend or supplement its submission as necessary. Similarly, in its Rejoinder, Russia reiterated this request for dismissal with respect to both conventions. During the hearing on 14 June 2023, Russia elaborated that its request was based on the reasons detailed in its written submissions and oral arguments, and it sought the dismissal of all claims made by Ukraine under both the ICSFT and CERD. Thus, Russia’s position throughout the proceedings has been a firm denial of the allegations and a call for the rejection of Ukraine’s claims.

OPINIONS OF THE JUDGES

In the Ukraine v. Russian Federation case, several judges provided separate opinions, reflecting diverse perspectives on key issues. President Donoghue agreed with the Court’s findings, concluding that Russia violated its obligations under CERD by banning the Mejlis and breached Article 12 of ICSFT. Judge Charlesworth also supported most of the majority’s reasoning but argued that non-financial assets should be included under “funds” in ICSFT, finding Russia’s actions against the Crimean Tatars unjustified. Judge ad hoc Pocar dissented, opposing the exclusion of weapons from “funds” under ICSFT and asserting that Russia’s actions against the Mejlis violated CERD. Judge Tomka disagreed with the finding of a CERD violation and opposed the 2017 provisional measures but supported a narrow interpretation of “funds.” Judge Abraham dissented, believing Russia’s recognition of the DPR and LPR should not influence the case. Judges Bennouna and Yusuf criticized the application of non-aggravation measures, with Yusuf emphasizing they should not cover unrelated military actions. Judge Sebutinde dissented, finding Russia in violation of ICSFT and CERD for its treatment of the Crimean Tatars. Judge Bhandari argued that “funds” under ICSFT should include weapons, while Judge ad hoc Tuzmukhamedov concurred with some aspects of the majority but disagreed on the inclusion of weapons and rejected claims of racial discrimination. Finally, Judge Brant viewed the Mejlis ban as lawful and disagreed with the finding that Russia violated the provisional measures.

DECISION OF INTERNATIONAL COURT OF JUSTICE

On January 31, 2024, the International Court of Justice (ICJ) delivered its judgment in the case concerning Ukraine’s allegations against the Russian Federation under 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), as well as violations of provisional measures ordered on April 19, 2017. The Court found that Russia had breached the provisional measures by maintaining the ban on the Mejlis, a key representative body of the Crimean Tatar community, thus failing to comply with the measure aimed at preserving the community’s ability to conserve its institutions. The Court concluded that this action violated the provisional measure requiring Russia to refrain from maintaining or imposing such limitations. However, it found that Russia had not violated the provisional measure concerning the availability of education in the Ukrainian language, as the evidence did not sufficiently demonstrate a breach in this regard. Furthermore, the Court determined that Russia’s actions, including recognizing the DPR and LPR as independent states and initiating a military operation against Ukraine, had aggravated the dispute and made its resolution more difficult, thereby violating the measure to refrain from such actions. The Court’s findings were complemented by a declaration that the breaches identified provided adequate satisfaction to Ukraine, and no further restitution or additional remedies were deemed necessary. The judgment reflects a nuanced examination of Russia’s compliance with the Court’s provisional measures and its obligations under international law, concluding with specific findings on the breaches and the dismissal of other claims.

RELEVANT CASES REFERRED

In the case Ukraine v. Russian Federation (2017), the International Court of Justice (ICJ) addressed Ukraine’s claims regarding the alleged violations of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) by Russia. While making its decision on provisional measures, the ICJ referred to several important precedents. These included:

1. LaGrand Case (Germany v. United States of America) [ICJ Reports 2001, p. 466] – This case established key principles related to provisional measures, emphasizing that such measures are binding and should be treated as obligations of states under international law.
2. Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Convention on the Prevention and Punishment of the Crime of Genocide) [ICJ Reports 1996, p. 595] – This case was instrumental in shaping the ICJ’s approach to cases involving serious allegations of state responsibility, including matters related to genocide, terrorism, and racial discrimination.
3. Jadhav Case (India v. Pakistan) [ICJ Reports 2019, p. 418] – Though this case occurred later, it further underscored the court’s role in ensuring that states comply with their obligations under international treaties related to fundamental human rights, including rights of foreign nationals.

The court emphasized provisional measures in Ukraine v. Russia, focusing on CERD-related claims concerning minority rights in Crimea. However, the ICJ found insufficient evidence at that stage to grant provisional measures regarding the Financing of Terrorism Convention claims, pointing to the high threshold of proof required for such claims.

COMMENT AND OBSERVATIONS

The International Court of Justice’s judgment in Ukraine v. Russian Federation presents a nuanced examination of provisional measures within the framework of international obligations. The Court found that Russia violated provisional measures by maintaining the ban on the Mejlis, the representative body of the Crimean Tatar community, thereby underscoring the binding nature of such measures in preserving the status quo during ongoing disputes. This finding reaffirms the ICJ’s role in ensuring that parties do not take actions that could aggravate or complicate the conflict. However, the Court’s decision regarding the availability of Ukrainian language education in Crimea was more cautious. Despite evidence of a significant decline in such education, the Court did not find Russia in breach of its obligations under the provisional measures. This approach reflects a careful balancing act between the Court’s judicial mandate and respect for state sovereignty. Furthermore, the Court’s acknowledgment that Russia’s subsequent actions, including recognizing the DPR and LPR and launching military operations, aggravated the dispute is significant. Yet, the Court’s decision not to impose additional remedies or restitution may be seen as a limitation in fully addressing the ongoing nature of the conflict. This decision raises questions about the efficacy of provisional measures in resolving complex geopolitical disputes.

Comparatively, this case aligns with other instances where provisional measures played a critical role in international adjudication. For example, in the LaGrand Case (Germany v. United States)[1], the ICJ found that the United States violated provisional measures by executing German nationals despite a Court order to stay execution, emphasizing the binding nature of such measures. Similarly, in Bosnia and Herzegovina v. Serbia and Montenegro[2], the ICJ’s provisional measures aimed to protect civilians during conflict, reflecting a similar intent to manage interim conditions. The Jadhav Case (India v. Pakistan)[3] also involved provisional measures to protect an individual’s rights pending final adjudication, illustrating the role of such measures in safeguarding legal standards.

Overall, the ICJ’s judgment in this case highlights the complexities of implementing provisional measures in ongoing conflicts and raises important questions about their effectiveness in achieving long-term resolution. The Court’s findings affirm the importance of provisional measures while also indicating the challenges in addressing the broader consequences of state actions and ensuring effective remedies.

REFERENCES

• International Court of Justice, Application of the ICSFT and CERD (Ukraine v. Russia), Judgment of 31 January 2024, I.C.J. Reports 2024, p. __.
• Marko Milanovic, ICJ Delivers Preliminary Objections Judgment in the Ukraine v. Russia Genocide Case, EJIL: Talk! (Feb. 4, 2024), https://www.ejiltalk.org.
• Just Security Editorial Board, Analysis on Ukraine v. Russia Case, Just Security, https://www.justsecurity.org.

• LIST OF CASES
• LaGrand (Germany v. United States), Judgment, 2001 I.C.J. 466 (June 27).
• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. 43 (Feb. 26).
• Jadhav (India v. Pakistan), Judgment, 2019 I.C.J. 418 (July 17).

[1] LaGrand (Germany v. United States), Judgment, 2001 I.C.J. 466 (June 27).

[2]Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. 43 (Feb. 26).

[3]Jadhav (India v. Pakistan), Judgment, 2019 I.C.J. 418 (July 17).