Thanks to Ukraine's efforts, the heavy bureaucratic machine of international law is moving forward. Recently, two days apart, the International Court of Justice in the Ukraine v. Russia case issued two important judgments: a judgment on the merits of 31 January 2024 in the case of Russia's violation 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), and a judgment of 2 February 2024 on jurisdiction in the case of genocide allegations.
Whether these decisions satisfy the Ukrainian side, what the consequences for Russia may be, and what further steps in this direction are possible - these were the issues discussed by experts on 15 February at the online briefing "Ukrainian Cases at the International Court of Justice". The event was organised by the Ukrainian Association of International Law and the ZMINA Human Rights Centre, a member of the Ukraine. Five in the Morning" coalition.
The general conclusion of the participants of the briefing is that despite the ambiguous results, this is a great promising step and valuable experience for Ukraine in the conservative system of international justice.
According to Mykhailo Buromenskyy, Professor of International Law at the Institute of International Relations of the Taras Shevchenko National University of Kyiv and ad hoc judge of the European Court of Human Rights, Ukraine's application to the International Court of Justice is a unique event. This court has considered a very limited number of cases throughout its existence, and the application procedure itself is quite complicated. Ukraine had to formulate exactly the charges over which the court would recognise its jurisdiction, and both parties - Ukraine and Russia - recognise the jurisdiction of the UN court.
"If we talk about the Terrorist Financing Convention, this is the first time the court has considered such a claim. As for the Convention on Racial Discrimination, this is the second case in history (the first was a lawsuit filed by Georgia against Russia, which ended unsuccessfully for the plaintiff). As for the genocide case, it is unique in that Ukraine is trying to prove that there is no "genocide" on its territory and that the argument used by Russia to justify its full-scale invasion is null and void," says Buromensky.
Thus, according to Buromensky, these are three unique cases where there is no significant practical experience that Ukraine can rely on. Therefore, the result can be considered positive. In the first case, the Russian Federation was accused of violating UN conventions, and in the second case, Ukraine has a real chance to refute the unfounded accusations of the aggressor state.
Anton Korynevych, Ambassador-at-Large of the Ministry of Foreign Affairs of Ukraine and Agent of Ukraine in the Ukraine v. Russia case at the International Court of Justice, also considers this result to be quite positive at this stage.
"We have a recognition of Russia as a violator of both conventions in the first case, as well as a violator of the orders for provisional measures of the International Court of Justice. They relate, in particular, to the ban on the work of the Mejlis of the Crimean Tatar people and the intensification of aggression - the recognition of the illegal L/DPR and the beginning of a full-scale invasion," the expert said.
Screenshot from the online briefingRegarding the Terrorist Financing Convention, Korynevych says that Ukraine has received a violation of the International Court of Justice (ICJ) in the investigation of terrorist financing, which can be very important in further work with Russian assets in various international jurisdictions.
According to the expert, the decision on Russia's violation of the Convention on the Prevention of All Forms of Racial Discrimination actually means that Russia has destroyed education in the Ukrainian language in Crimea. This is a very important systemic phenomenon that Ukraine should testify to at various international platforms, Korynevych believes.
He adds that the recognition of the court's jurisdiction in the genocide case allows Ukrainian representatives to debunk Russia's lies about the mythical "genocide" that Ukraine has allegedly committed since 2014. And this is also important for the 32 countries that have joined the case - you can't just slander a country and use it to launch a large-scale armed attack, adds Korynevych.
But the key, in the expert's opinion, is the ICJ's order on provisional measures of 16 March 2022, which orders Russia to cease any military actions on the territory of Ukraine that began on 24 February 2022 and not to "aggravate the dispute". Due to the fact that the case has moved to the stage of consideration on the merits, this order remains in force, meaning that every day of the ongoing aggression, Russia violates this order.
According to Zakhar Tropin, PhD in Law, Associate Professor of International Law at the Institute of International Relations of the Kyiv National University of Shevchenko, the rulings are "neither a betrayal nor a victory". The UN Court of Justice is the most conservative institution in the modern world in terms of interpretation of law, Tropin believes, and it never undermines the foundations of international law or takes revolutionary steps. Consequently, the professor says, Ukraine has also become a hostage to this conservative approach and an overly narrow interpretation of conventions, particularly on the financing of terrorism, which gives other countries an idea of the workarounds that can be used in this matter.
On the encouraging side, Tropin believes that in the first case, it is very important to note that the Russian Federation does not effectively investigate terrorist financing cases. This makes it possible to view the Russian legal system as a tool of intimidation and persecution. In particular, the warrants issued by the Russian Federation against the ICC judges and the Prime Minister of Estonia are evidence that the criminal process is used in Russia as a means of pressure, the expert adds.
"If we analyse the history of cases heard by the International Court of Justice, we see that the court almost never grants an unconditional victory to one of the parties. Of course, this does not meet the demand of Ukrainian society for justice. But the cases are very complex, with a huge amount of evidence. There is no certainty that the court has studied all the arguments of the parties in detail and was able to separate propaganda from the truth," said Oksana Zolotaryova, Director of the International Law Department of the Ministry of Foreign Affairs of Ukraine, co-agent of Ukraine in the Ukraine v. Russia cases at the International Court of Justice.
Oksana Zolotaryova and Anton Korynevych. Photo: Iryna Drabok / UkrinformShe notes the importance of paragraphs 397 and 398, in which the court recognised that Russia had violated the order for provisional measures by recognising the independence of the so-called L/DPR and launching a full-scale invasion. According to Zolotareva, this can be interpreted as Russia having already been recognised as a violator of international law, and this affects its reputation and place in the system of international relations, as well as the position of other countries regarding cooperation, increased sanctions, etc. And Ukraine will use this to strengthen its rhetoric on international platforms, the expert believes.
Zolotaryova believes that the interim results obtained are a valuable experience in preparing for further consideration of these and new cases, in understanding how the ICJ mechanism works and what needs to be emphasised to achieve the best possible result.
16.02.2024
