What Ukraine won and lost at the International Court of Justice

ICJ2

 

Analysis & Opinion, Featured

Article by: Serhiy Sydorenko

On Wednesday, April 19, the International Court of Justice (ICJ), the United Nations’ top court, issued its first interim ruling in the Ukraine vs. Russia case — the judgment on provisional measures.

This document left many questions. Those who wanted to see “victory” for Ukraine could find it (since the court ordered Russia to restore the Mejlis of the Crimean Tatars). Similarly, people could also find “betrayal” (especially regarding events in eastern Ukraine, since the court rejected provisional measures against the Russian Federation).

International lawyers are studying the 38-page judgment, as well as the individual views of seven judges, examining literally their every word. After all, in these kinds of documents even suggestions hidden between the lines are important.

But it is already possible to draw the first conclusions from the judgment: what it means and how it will shape the future actions of Ukraine. Additionally (and this is equally important),  it is possible to determine which statements now appearing in media are obvious fakes.

The Mejlis and Crimea: the implications of the court’s ruling

First of all, let us emphasize again that on Wednesday the court did not rule on the merits of the case. There are still several years and thousands of pages of evidence that Ukraine and Russia have yet to submit to The Hague before we reach that stage. But the current decision on the so-called “provisional measures” is important in itself as well as a means to assess the position of the judges.

Reactions are really divided when it comes to the interim judgment that the ICJ released on Wednesday. We have seen posts about total betrayal as well as posts proclaiming Kyiv’s undeniable victory. About the only thing most contributors and all the lawyers can agree on is that the judgment on Crimea is really in Ukraine’s favor. Then let us begin with the simplest episode — the Crimean one, because even here there is much that can be read between the lines.

Therefore, the ICJ not only confirmed that it can continue to consider the complaint about the discrimination against Crimean Tatars and Ukrainians in Crimea, but it also confirmed previous measures on three points:

  1. The Russian Federation must refrain from maintaining or imposing new restrictions on the ability of the Crimean Tatar community to keep their representative institutions, including the Mejlis.
  2. The Russian Federation must ensure access to education in the Ukrainian language.
  3. Both sides (Ukraine and the Russian Federation) must refrain from actions that could worsen and expand the dispute (for example, violating minority rights) or complicate its resolution.

The third point, although it applies to both countries, in reality does not impose any restrictions on Ukraine. Kyiv has never even assumed there could be any restrictions on ethnic Ukrainians or Crimean Tatars based on nationality in occupied Crimea. But even the theoretical possibilities by Ukrainian authorities are fairly limited here. However, this point may be quite significant when used against the Russians: the persecution of minorities, including the Crimean Tatars, may be seen as contempt of the court by the Russian Federation and affect the subsequent process.

The second point regarding Ukrainian education is also important, but Russia will be able to bypass it — for example, by demonstrably establishing a number of Ukrainian language classes while making sure that very few students sign up for them. In the current atmosphere in Crimea, intimidation is easy.

The first point, with its reference to representative bodies of the Crimean Tatars, is an incredible victory. The ICJ did more than we had expected. It agreed to mention the Mejlis directly in the preliminary decision — that is before beginning to review the bulk of Ukrainian evidence. Moreover, the ICJ in its arguments emphasized that the puppet “alternative organizations” of the Tatars, created under auspices of the Russian Federation, are not and will not be accepted as “substitute Mejlis,” since international institutions and the Crimean Tatars themselves do not recognize them as representing the interests of the community.

Furthermore, the ICJ resorted to extreme measures and ordered  Russia to revoke or suspend the national decision to ban the Mejlis. And even though this ban was confirmed by a decision of the Russian Supreme Court and a decree by President Putin, Russia must now find a way to stop it itself. The court simply did not take into account Russian arguments that the Mejlis is a  “terrorist organization.” Of course, the Kremlin may refuse to execute a court order, but this will be a strong argument against the Russian Federation in a future trial. And, in general, the text of the court order suggests that Ukraine’s chances of winning the trial are in fact quite high.

Voting on the provisional measures was either unanimous or by a 13-3 decision. Even the judges that Kyiv considered “relatively pro-Russian” voted for it without providing separate opinions. Similarly, the text of the judgment does not indicate that the ICJ has any doubts about Ukraine’s position under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) – the document used to complain about Russia’s actions in Crimea.

Finally, Ukraine’s Ministry of Foreign Affairs and the Ministry of Justice understand how to proceed. After all, the ICJ has often considered cases under CERD, there is legal experience, and there are examples of successful and unsuccessful processes from which to draw conclusions.

Of course, the Russians will not sit idly by either, and this is why the Ukrainian legal team will have to do considerable work, providing additional evidence to the Hague and refuting the opponent’s arguments. But the prospects for the ” Crimean piece” are quite good.

What happened to the argument on Russian terrorism?

There is no reason to hide the fact that Kyiv hoped to see a better result on the issue of Russian aggression in eastern Ukraine (under the Convention on the Suppression of the Financing of Terrorism).

Even Ukraine’s representative in the process, Olena Zerkal, recognized it in her rather optimistic column on the motivations behind the court’s  judgment. However, it is also important to note that specialists considered this part of Ukraine’s claim more difficult from the beginning, since the ICJ has little practical experience using this convention.

Anyway, on Wednesday, April 19, the judges rejected Ukraine’s request for preventive measures under this convention.

Why did this happen? What will it mean for Ukraine?

The best answers to these questions can be found in the text of the judges’ decision and the Statutes of the International Court of Justice. Unfortunately, the news here is not very good.

As mentioned previously, no one before Ukraine has used this convention in court, and this is a real problem. Ukraine was compelled to use it — not because it applies to Russia’s actions the best, but because this international agreement is the only one under which the Russian Federation is the “defendant” in The Hague. However, the convention’s application to events in the Donbas was considered doubtful from the beginning since the main accusation against the Kremlin is not terrorism but armed aggression against Ukraine. But lawyers decided to use this chance and prove that Russia has not only attacked Ukraine but that is is also fueling terrorist acts on Ukrainian territory.

As this publication wrote in a preview two days ago, the Russians have chosen the tactics of “combating jurisdiction.” In particular, they argued that the ICJ does not have the right to consider the Ukrainian matter and must reject it even initially when making the prima facie decision on jurisdiction. It is noteworthy that these arguments by the Russian Federation were rejected in The Hague, but this was not enough for success.

The ICJ focused on another provision of the  Convention on the Suppression of the Financing of Terrorism, according to which the  “financing of terrorism” means  providing financing, weapons, or other support but only if these weapons, financing of other support are “given with the goal or understanding” that this particular weapon or method will be used for terrorist acts.

“At this stage of the proceedings, Ukraine has not put forth before the court sufficient evidence (on providing support for terrorist acts),” is found in paragraph 75 (page 28) of the ICJ’s judgment. Such evidence may be given later when the matter is decided on its merits.

Why even this setback is not a disaster

Therefore, consideration of the “terrorist” section of Ukraine’s accusation has not ended. The rejection of provisional measures does not formally affect a further procedure. But the situation should not be viewed through rose-colored glasses because it is really complicated.

Ukraine’s Ministry of Foreign Affairs claims it can provide additional evidence needed by the court. But the issue was not that Kyiv “forgot to add a folder” since the evidence was there from the beginning. Even at public hearings in March, Ukraine’s lawyers presented arguments that Russia’s actions to support terrorists are deliberate and conscious.

Instead, Russia did not deny giving weapons but argued that there was no evidence that it was providing it for carrying out terrorist acts. And supplying weapons to militants is not a violation of the convention.The court decided that Russia had grounds for its argument. And if Ukraine does not find fundamentally different methods of evidence, it will lose the case under this convention.

But here it is important to emphasize that the court made no judgments on the presence of terrorists in the Donbas.” On the contrary, the decision recognizes that there are massive civilian casualties because of the shelling (and this is one of the signs of possible terrorism.)

It is also important to remember that the court has confirmed its prime facie jurisdiction on Ukraine’s lawsuit, which opens the way to the recognition of full jurisdiction during the consideration on merits. In fact, there were real fears that Ukraine’s lawsuit would be killed still at the stage of the preliminary jurisdiction. Therefore, no tragedy occured. There is no assurance of Ukraine’s victory under this convention, but a chance remains, and it makes sense to fight.

Let us not forget that it is not only the “verdict” — the operative part– that is important in the decisions by the international courts. If, for example, the ICJ finds that the Kremlin is actually supplying weapons and military to the Donbas, but there is no 100% evidence of their involvement in terrorist attacks and that for that reason the convention does not apply, this “loss” would actually constitute a significant victory for Ukraine. After all, no other international court has recognized yet (that Kremlin is supplying the terrorists).

What about the myths

The wave of “betrayal” comments in social media after the Court’s decision should have been expected. As usually happens, much of it is based on rumors and myths. By the way, according to analysis by European Pravda, certain theses are systematically introduced by Russian users (this is quite visible from the comments in the publications). Of course, there are genuine mistakes by Ukrainian readers as well.

Anyway, it makes sense to focus on the most common myths about the process in the ICJ. Several have already been mentioned above. If you see posts (or news articles or publications) with assertions that the ICJ has “rejected the Ukrainian complaint” or determined that “there is no terrorism in the Donbas” you can safely ignore them. There is nothing like that in the court’s decision. On the contrary, the ICJ took Ukraine’s case for further proceedings and did not rule out that terrorism has taken place.

The same applies to Crimea. We have already seen several posts claiming that the Court recognized Crimea as Russian when it considered the actions of the Russian authorities in Crimea. This is categorically false.  There will be no comment on Crimea’s affiliation — either with Russia or with Ukraine — either in this judgment or in a future decision on merits. The court simply does not have that kind of power in this process, and the presiding judge emphasized this fact.

The question arises as to why Ukraine did not bring another lawsuit, specifically on the annexation of Crimea and the aggression in the Donbas? Why do we have to prove complex legal structures on terrorism and the oppression of minorities in The Hague?

Unfortunately, Ukraine simply has no other option. Only these two conventions used by Kyiv include Moscow’s automatic agreement of the court’s jurisdiction in The Hague. In all other cases, Russia’s consent is required to begin the arbitration, and, of course, Russia does not give such consent.

As for the prosecution for aggression, the situation is even more complicated. Under the UN Charter, the Security Council deals with this exclusively, and Russia has the blocking vote there.

This is why it is necessary to look for detours. They are not simple, but still effective. Any international lawyer will confirm that the trial in The Hague is not ” for amusement.” The verdict of the ICJ is essential for taking the next steps.

Therefore, even if Kyiv’s suit if fully satisfied, this decision will not return Crimea in a day and will not force Putin to leave the Donbas. However, it is quite capable of becoming the cornerstone that will keep the international pressure on the Russian Federation, and eventually to restore justice.

Translated by: Anna Mostovych
Source: European Pravda

Tags: , ,

  • Alex George

    A good article – it doesn’t overstate the significance of this.

    The court case is relevant, and it hits the Kremlin’s propaganda effort, but it won’t be decisive of anything.