On January 31, 2024, the International Court of Justice (ICJ) issued its final judgment in the 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). The case was opened in 2017 on the basis of Ukraine’s application in response to Russia’s role in events in Crimea and the Ukrainian Peninsula in 2014, including artillery attacks and bombings of civilians in eastern Ukraine and the shooting down of Malaysia Airlines Flight 17. (Application Instituting Proceedings.) (A separate, unrelated case between Ukraine and Russia involving the Convention on the Prevention and Punishment of the Crime of Genocide was opened at the ICJ in 2022. (Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening.) The court has yet to reach a final judgment in that case.)
The case raised claims 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). The ICSFT, which entered into force in 2002, is a treaty designed to enhance international cooperation in combating financing for terrorist activities, while CERD, which entered into force in 1969, is a treaty designed to speedily and effectively eliminate racial discrimination as defined in the 1948 Universal Declaration of Human Rights. (ICSFT at 1–2; CERD at 2–3.) The decision focuses on a variety of issues under both treaties.
Ukraine’s claims under the ICSFT concerned the definition of terms, scope of coverage by the treaty provisions, proof of predicate acts, and standard of proof related to acts performed by Russia or supported by the Russian government. The present article discusses only those claims considered violations by the court; it does not cover the majority of the claims, which were rejected by the court. The claims under CERD concerned evidentiary standards and the definition of terms related to alleged discrimination against ethnic Ukrainians and Crimean Tatars in law enforcement and education practices. Again, the court rejected the majority of the claims and this article discusses only those the court considered violations under the treaty.
ICJ Procedure and the History of Case
The ICJ presides over two kinds of cases: contentious cases, or disputes between two countries, and requests for advisory proceedings. Russia v. Ukraine is considered a contentious case. Contentious cases are instituted by an application, which is followed by a written phase, where each party submits its pleadings explaining their position on the facts and the relevant laws, and then an oral phase, where public hearings are held in which agents and counsel present their arguments to the court. The court then deliberates and issues its judgment publicly. Judgments are binding, and there is no appellate process. If a party does not adhere to the judgment, it can be referred to the United Nations Security Council for further measures. There are also provisions available for preliminary objections, where a party can request interim measures to protect its interests. Parties can also challenge whether an issue falls under the jurisdiction of the court.
Ukraine submitted both its application and a request for provisional measures on January 16, 2017. A public hearing on the request for provisional measures was held on March 6, 2017, and a decision was issued on April 19, 2017. Of note, the provisional measures ordered the parties to “refrain from any action which might aggravate or extend the dispute.” (Order on Provisional Measures.) Russia then submitted its own preliminary objections on September 12, 2018, with public hearings held June 3–7, 2019. Following the court’s decision on November 8, 2019, the parties entered the written pleading phase, with a public hearing held on June 14, 2023. The final judgment in the case was delivered on January 31, 2024. (Judgment at pp. 11–26.)
Violation of Provisional Measures
The ICJ found that the “special military operation” against Ukraine was a breach of the provisional measures ordered in 2017. (Judgment at pp. 110–112.) The court considered its declaration that there was a breach to be a sufficient remedy.
Claims Under the ICSFT
Allegations under the ICSFT were brought over the downing of Malaysia Airlines Flight MH17; artillery strikes against civilians in Volnovakha, Mariupol, and Kramatorsk; and the bombing of civilians in Kharkiv. Ukraine suggested that Russia had financed the actors in these attacks and sought an order from the ICJ for Russia to uphold its obligations under the ICSFT to undertake investigations of terrorist financing. Ukraine also asked for reparations for all incidents. (Judgment at pp. 15–17.)
The court ruled on five specific claims brought under the ICSFT. Ukraine filed claims under article 8 (Judgment at p. 43), concerning an obligation to freeze funds when there was reasonable suspicion that funds may be used to fund terrorism; article 10 (Judgment at p. 50), related to an obligation to prosecute an act of financing terrorism; article 12 (Judgment at p. 52), related to providing legal assistance to other treaty parties in response to the commission of funding terrorism; and article 18 (Judgment at p. 54), related to reasonable measures to be taken, including legislation or regulation, to combat the financing of terrorism. The court did not find that Russia violated its obligations under any of these articles.
The court did find, however, that Russia had violated its obligations under article 9 of the treaty, related to the evidentiary standard for triggering an investigation into financing terrorism. (Judgment at p. 49.) The court explained that invoking the obligation to investigate alleged terrorism financing required only a low threshold of evidence and there need not be proof of the commission of an offense; an allegation would satisfy the obligation to begin an investigation. (Judgment at p. 48.) According to the court, an allegation was distinct from an unsubstantiated claim, and it needed to determine if Ukraine had provided enough information regarding this allegation to invoke Russia’s obligation to investigate. (Judgment at pp. 48–49.) The court determined that sufficient information had been provided to Russia regarding the attacks in Donetsk and Luhansk. (Judgment at p. 49.)
Claims Under CERD
Claims under CERD included allegations that there had been systematic discrimination against Crimean Tatars and ethnic Ukrainian communities in Crimea, suppression of the political and cultural expression of Crimean Tatars, suppression of education in the Crimean Tatar and Ukrainian languages, unfair treatment by law enforcement and disappearances of members of these communities, and suppression of media. Ukraine also asked for reparations for all victims of the alleged erasure of these communities as a result of discrimination. (Judgment at pp. 17–19.)
The court ruled on eight specific claims brought under CERD on behalf of persons of Crimean Tatar origin and ethnic Ukrainians. The claims ranged from allegations of physical violence directed toward those groups because of their political and ideological positions to racially motivated behavior by law enforcement toward members of these groups. Claims also included restrictions on media, cultural gatherings, cultural heritage, and education. (Judgment at pp. 65–99.) The court found no obligations under CERD for Russia to fulfill related to these claims.
The court did find that Russia was obligated under CERD to protect educational opportunities in the Ukrainian language. Specifically, the court found there were violations of articles 2 and 5 of CERD regarding the implementation of school education in Ukrainian. (Judgment at p. 106.) The court explained that simply declining to offer education in a minority language did not constitute racial discrimination under CERD. (Judgment at pp. 102–105.) However, the court also explained that “structural changes” to languages of instruction in schools may be considered discrimination and that structural changes made it unreasonably difficult for individuals to receive education in their primary language. (Judgment at p. 103.) The court noted that there was a significant decline in Ukrainian language students from 2014 onward and quoted a report from the U.N. Office of the High Commissioner for Human Rights (OHCHR) that attributed the decline to the “departure of thousands of pro-Ukrainian Crimean residents to mainland Ukraine.” (Judgment at p. 103.) Nevertheless, the court did not find this decline, along with a “reorientation of the Crimean school system towards Russia,” was solely responsible for a 90% reduction in demand for Ukrainian language instruction. (Judgment at p. 104.) The court also weighed evidence of harassment toward those wishing to continue their education in Ukrainian, ultimately finding that Russia did not protect the rights of ethnic Ukrainians. (Judgment at p. 104.) The court concluded that Russia violated its obligations under CERD regarding the educational system in Crimea after 2004 with regard to the Ukrainian language. (Judgment at p. 106.)
Louis Myers, Law Library of Congress
March 18, 2024
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