Ukraine is quietly weaving a web of court decisions around Russia, holding it accountable for crimes committed in our country. After a nine-year judicial marathon (including two years of mandatory Ukrainian-Russian pre-trial negotiations), the International Court of Justice of the United Nations issued a verdict on Ukraine’s claim regarding Russia’s violation of two UN conventions – on the elimination of all forms of racial discrimination and on the fight against the financing of terrorism.
As Lana Zerkal, an ex-agent of Ukraine, noted in a comment to ZN.UA, the court first of all had to determine “whether a country that is a permanent member of the UN Security Council can violate the norms of international law, manipulate facts, and cynically lie with impunity. This decision is important not only for documenting violations of these conventions. This verdict is crucial for the future application and development of international law.”
The strength of our position lies in the facts, in our commitment to restore justice.
But was that enough? Did the court accept the Ukrainian arguments? Did he consider the facts of Russia’s violations of the provisions of the convention proven?
In Kyiv, where they understood that the WC UN would definitely not take sides, they kept their fingers crossed and wondered what the court’s decision would be.
Unfortunately, the decision announced on Wednesday turned out to be not at all what the Ukrainians had hoped for.
What Ukraine demanded
The UN International Court, for the first time in history, rendered a decision based on two conventions: the elimination of all forms of racial discrimination and the fight against the financing of terrorism. The judges’ position will define the interpretation of the letter and spirit of these two international agreements for many years to come, including in intergovernmental relations in the sphere of counterterrorism.
Indeed, under the Convention on the Fight against the Financing of Terrorism, Ukraine argued that Russian officials consciously financed terrorist acts in our country and provided weapons and military equipment for this purpose. This includes not only the tragedy of flight MH17 but also shelling in 2014–2015 in Mariupol, Volnovakha, Kramatorsk, and the terrorist attack in Kharkiv.
Essentially, the court had to answer the question: were the intentions of committing terrorist acts and the facts of Russia’s financing of such acts proven? Victory for us meant that the court would fully or partially support the Ukrainian side’s claims, while defeat meant that the UN ICJ would state that the intentions were not proven. Optimism was fueled by the broad interpretation allowed by the Convention, and there were hopes that the judges would be able to make a revolutionary decision.
In Kyiv, there were also expectations that, under the Convention on the Elimination of All Forms of Racial Discrimination, the UN ICJ would satisfy almost all of Ukraine’s demands. Ukraine argued that Moscow, through its punitive actions, violated the basic rights of two ethnic groups residing in Crimea – Crimean Tatars and Ukrainians. Representatives of these groups were kidnapped, tortured, and killed by Russian authorities. The confidence in winning the court case was also reinforced by the Kremlin’s cessation of the work of the Mejlis and restrictions on the use of Ukrainian and Crimean Tatar languages, failing to implement temporary measures set by the UN ICJ in 2017.
Blow to the breath
However, contrary to expectations and forecasts, the court rejected most of Ukraine’s claims against Russia, including all claims for compensation.
Thus, the UN Security Council has decided that it considers Russia’s violation of the Convention on the Elimination of All Forms of Racial Discrimination as part of the ban on the activities of the Mejlis to be unproven. (Although Kyiv was confident of a positive solution to this issue.) However, the court recognized that Moscow violated its obligations regarding non-discrimination of the Ukrainian minority in the field of education. At the same time, the UN Security Council did not notice such a violation regarding the Crimean Tatars.
International lawyers, with whom ZN.UA discussed the decision of the UN Security Council regarding the Convention on the Elimination of All Forms of Racial Discrimination, claim that the main argument of the court was that Ukraine did not prove signs of discrimination, and therefore, Russia’s actions are not a violation of the provisions of this international agreement. However, it should be noted that our country was limited in the choice of international treaties under which charges could be brought against Russia.
Also, the International Court of Justice of the United Nations partially satisfied the demands of Ukraine under the Convention on Combating the Financing of Terrorism.
Although the court found most of Kyiv’s accusations against Moscow unfounded, it found Russia guilty of violating Article 9 of the Convention: the UN Security Council said that Russia had failed to fulfill its obligations to investigate cases of terrorist financing, which Ukraine had repeatedly called attention to. In general, the judges decided that the financing of terrorism under the Convention applies only to the transfer of funds and does not extend to the provision of military equipment and weapons to militants.
In the end, the UN Security Council noted that Russia did not introduce temporary measures and recognized the “LPR” and “DPR”.
As Lana Zerkal notes, “the limitation of the application of the Convention for the Suppression of the Financing of Terrorism only to financial transactions in the classical form does not answer the question of what then constitutes the supply of weapons and cash to militants. The answer to this question remains outside the scope of the Convention.”
In turn, the associate professor of the international law department of Taras Shevchenko Kyiv National University, Zakhar Tropin, in a comment to DT.UA, considers the level of evidence established by the court to be absurd, which leads to the impossibility of prosecution under the Convention on Combating the Financing of Terrorism. “In essence, today’s decision of the UN Security Council introduces legal ways of circumventing the provisions of the Convention and provides perfectly legal ways to sponsor terrorism, not only undermining the effectiveness of its provisions, but also potentially encouraging some states to engage in such activities,” the statement said. to Zakhar Tropin.
In fact, the International Court of Justice of the United Nations made conclusions that invalidate most of the provisions of the conventions on the elimination of all forms of racial discrimination and the fight against the financing of terrorism.
What’s next?
How to explain such a conservative approach of the court to the two conventions? In our opinion, there are several reasons. First, the inability of the current international legal system to adequately respond to modern challenges played its role. Second, the judges could have taken into account the position of their countries, many of which supply arms to their proxies and ban religious organizations.
In Moscow, the court decision is interpreted as a victory. Despite the fact that most of Kyiv’s demands were not met, this verdict was a victory for Ukraine, albeit a “minimal” one, and a defeat for Russia. Although this decision did not turn out to be the knockout that the Ukrainians hoped for, it is a failure for Moscow. Not only Ukraine, but also the UN Security Council for the first time recognized Russia as a violator of international law regarding two conventions.
Unfortunately, the consequences of the decision of the International Court of Justice for Russia are currently limited to minimal reputational losses. However, Moscow is obliged to eliminate the violations established by the court. (Although it is unlikely that Russia will do so.) The court’s statement only notes Russia’s failure to comply with two points of the interim measures.
As Zakhar Tropin suggested, “the fact that Russia does not conduct an effective investigation into the financing of terrorism and terrorist activities may call into question the cooperation of states with Russia, in particular in the field of combating terrorism.” Much will depend on the political will of the heads of state.
Does the decision of the International Court of Justice of the United Nations on conventions against racial discrimination and terrorist financing mean that Ukraine should not continue fighting in international courts, as it may turn out to be futile? Not at all! Kyiv needs to draw conclusions from yesterday’s verdict and be ready for the long game: the International Court of Justice is considering other claims of Ukraine against Russia, in particular, regarding the Convention on Genocide and the UN Convention on the Law of the Sea.
While the International Court of Justice’s decision on the Conventions Against Racial Discrimination and the Financing of Terrorism may be modest, it is a small step toward restoring justice in the courtroom.