The International Court of Justice recognized Russia as a violator of international law for the first time. But Ukraine is still not satisfied. Why? Analysis for the thoughtful ones

On January 31, 2024, the International Court of Justice (ICJ) of the United Nations (UN) recognized that Russia violates international law. In particular, two international conventions: on the fight against the financing of terrorism and on the elimination of all forms of racial discrimination. Since January 2017, Ukraine has been proving that Russia has been financing militants and leading them in the occupied parts of Donbas since 2014. In addition, it tried to prove that Russia oppresses Ukrainians and Crimean Tatars in occupied Crimea. Ukrainian lawyers, led by Lana Zerkal, delivered a whole busload of evidence to the UN International Court of Justice. The decision turned out to be controversial. The court agreed with only a few of Ukraineʼs demands — one for each convention — and rejected the majority. And did not assign any compensations. The agent of Ukraine at the UN International Court of Justice Anton Korynevych, who replaced Zerkal in May 2022, considers this a victory, because Russia was still recognized as a violator of international law. Lana Zerkal and some other lawyers, on the contrary, say that such a decision can have negative consequences not only for Ukraine, but also for the world. In any way, this case is still unique. Ukraine is the first country to reach a court decision on the merits of the Convention on Racial Discrimination. And the convention on the financing of terrorism has never been considered in the UN International Court of Justice. Babel correspondent and lawyer Oksana Kovalenko listened to the decision in full, read the court documents, asked the main questions to Anton Korynevych and figured out — Ukraine lost or won.

Convention on the prevention of financing of terrorism

Ukraine asked the court to recognize that Russia, through its state bodies, representatives and other persons, violated its obligations to fight terrorism. The lawsuit referred to five violations:

• Pro-Russian militants organized a number of terrorist acts in Donbas: in 2014 they shot down a Malaysian Boeing; in 2015 they fired at a checkpoint in Volnovakha, and a few days later — a district in Mariupol, as well as Kramatorsk and Avdiivka; then they staged a terrorist attack, in particular in Kharkiv, far from the front. These militants were supported by both Russian high-ranking officials and private individuals and businessmen. Russia did not block the funds of these people.
  
  What did the court decide? The court did not receive sufficient evidence that the Russian donors knew that they were giving funds to a specific group of militants specifically for the organization of a terrorist attack. At the same time, the court noted that according to the convention, the state must freeze the assets of those who finance terrorism, and Russia received information from Ukraine about the probable use of funds and accounts for terrorism. But, according to the court, these requests do not contain specific and detailed evidence, so Russia could not have suspected that these funds could be used for terrorist attacks, and was not obliged to freeze them.
• Russia has not systematically investigated alleged crimes related to the financing of terrorism by people who were on the territory of Russia, despite the fact that Ukraine has repeatedly requested this in writing. Russia should have immediately started checking these requests, even though specific people were not indicated there.
  
  What did the court decide? At least three notes of the Ministry of Foreign Affairs of Ukraine contained information that was sufficient to start an investigation of the stated facts. But Russia did not do this and only a year later sent a formal note, which can be called a withdrawal. This is the only Ukrainian demand under this convention that was satisfied by the court.
• Russia has ignored requests to extradite or prosecute people believed to be funding terrorists in Ukraine.
  
  What did the court decide? Ukraine did not provide Russia with enough evidence to be able to talk about the financing of terrorism, so Russia had no obligation to extradite its citizens.
• Russia had to contribute as much as possible to the investigation of cases related to the financing of terrorism by people who were on its territory.
  
  What did the court decide? In Ukraineʼs requests to Russia, there was not enough information about the fact that this funds was deliberately given for the organization of terrorist attacks. Therefore, Russia had no obligation to assist Ukraine in the investigation.
• The convention provides for a change in legislation to prevent the financing of terrorism. Here, Ukraine developed the complaint in several directions at once: Russia did not instruct its officials not to participate in the financing of terrorism, did not prohibit private individuals from financing terrorism, and generally pursued a policy of financing armed groups in the east of Ukraine.
  
  What did the court decide? This request goes beyond the scope of the articles of the convention. The court also believes that Russia did not have evidence that "LPR" and "DPR" are terrorist organizations, so it did not have to stop fundraising for them.

Why did the court make such decisions? The key issue is the interpretation of the concept of funds. Ukraine believes that this is a broad concept that includes not only financial assets, but also the supply of weapons, training of fighters, trucks with cash, military equipment. For example, the Russian Buk air defense system, which shot down a Boeing 777 in 2014. But the court narrowed this concept only to financing through bank accounts. Therefore, according to the court, weapons, equipment or training of militants are outside the scope of the convention.

Another important question is what exactly is considered terrorist financing. According to the court decision, this can be said when the donor knew and was aware that the funds sent by him would be used to organize a terrorist attack.

Will there be no compensation? In the lawsuit, Ukraine demanded restitution and compensation for moral damages. Although the court rejected them, because of all the demands, it agreed only with the fact that Russia did not investigate the crimes of terrorism. According to the court, this article does not provide grounds for restitution.

Anton Korynevych says that there is no problem here: "We raise the issue of compensation further in our proceedings regarding the Convention on the Prevention of the Crime of Genocide. Moreover, our Ministry of Justice team is working hard on this issue at the European Court of Human Rights. Well, the third is the creation of an international compensation mechanism. Thatʼs why it wasnʼt a sticking point today."

Convention on the Elimination of All Forms of Racial Discrimination

According to Ukraine, after the occupation of Crimea in 2014, Russia openly violates the convention. It discriminates against Crimean Tatars and Ukrainians on the territory of the peninsula, physically persecutes, arrests, kills, restricts the rights to education, language and peaceful assembly. Specific arguments are as follows:

• Russia persecutes the leadership of the Mejlis of the Crimean Tatar people and local activists, and does not investigate cases of physical violence against Crimean Tatars. Ukraine provided data on 13 such cases, including the murder of Reşat Amet in 2014. Ukraine also cited the reports of the Office of the UN High Commissioner for Human Rights that Russia does not investigate the disappearance of people.
  
  What did the court decide? Despite the fact that there are indeed doubts about the Russian investigations, Ukraine has not provided evidence that all these crimes were racially or ethnically motivated. At the same time, the court recognized that Ukraine could not provide additional evidence because it does not have access to Crimea, and therefore refers to the reports of international organizations and statistical data. But in all cases, the court sees political persecution, not the intention of the Russians to discriminate against ethnic groups.
  
  Anton Korynevych says that international monitoring missions and missions of international organizations — in particular the Office of the UN High Commissioner for Human Rights — do not have access to Crimea. Therefore, this case is important for the court in the context of how to work with the facts and data in such cases.
  "I think this will contribute to the further development of the legal practice of the court. Be that as it may, I assure you that the Ukrainian legal team did everything possible to provide all possible evidence and testimony," says Korynevych.
• Russia banned Mejlis.
  
  What did the court decide? Russia banned Mejlis not because of ethnic origin, but because of political activity. In addition, the Mejlis is not the main institution representing the Crimean Tatar community. It is the executive body of the elected Kurultay, and the Kurultay was not banned. At the same time, the court noted that international organizations and monitoring bodies called on the Russian Federation to cancel the Mejlis ban because of its negative impact on civil and political rights. But Russia never did it. However, in this case, the court does not consider this prohibition in the context of human rights as a whole, but only within the framework of the Convention on the Elimination of All Forms of Discrimination.
  
  There is one more detail. In 2017, the UN International Court of Justice itself issued an order to Russia to lift the ban on the Mejlis while the case is pending. And then another one — it forbade Russia to do anything that could complicate the proceedings. Now the court has recognized that Russia has violated these two prescriptions: it did not cancel the Mejlis ban and started a full-scale invasion of Ukraine. And therefore, it is also a violation of international law.
• Russians force Crimean Tatars and Ukrainians in Crimea to accept Russian citizenship. Ukraine claims that Russia has threatened to limit the rights of anyone who wants to keep their Ukrainian passport.
  
  What did the court decide? Ukraine has not provided evidence that the citizenship regime that Russia has introduced on the occupied peninsula discriminates against Crimean Tatars and ethnic Ukrainians.
• Russia restricts the right to peaceful assembly in Crimea. Russian officials — unlike Ukrainian officials — have the right not to allow rallies and peaceful meetings. Ukraine referred to two decisions of the ECtHR, in which this court ruled that Russian norms in this area "are often applied in an arbitrary and discriminatory manner."
  
  What did the court decide? The court drew attention to the remarks of the Office of the UN High Commissioner for Human Rights that due to the ban on rallies, "the Crimean Tatars, who received such warnings on the eve of the memorable dates, were particularly affected." But at the same time, the court did not find an ethnic basis here, because not only Ukrainians and Crimean Tatars are restricted in these rights, but some Ukrainian and Crimean Tatar organizations were allowed to hold actions.
• Russia closed Ukrainian and Crimean Tatar media in Crimea.
  
  What did the court decide? The Russian authorities close various mass media not only in the occupied Crimea, but also on the territory of the Russian Federation, so there is no ethnic discrimination here.
• Russians in Crimea are destroying the cultural heritage of Ukrainians and Crimean Tatars. For example, the Khanʼs Palace in Bakhchisarai, in which the occupation authorities started repairs and partially destroyed ancient materials and technologies. Or the palace of Kalga-Sultan, the excavations of which were planned to be built.
  
  What did the court decide? Ukraine has not substantiated how the situation with individual buildings amounts to ethnic discrimination. Russia has provided evidence that it is trying to preserve cultural heritage.
• The Russians are closing schools with the Ukrainian language of instruction.
  
  What did the court decide? There is a violation of the convention. The Russians insisted that the number of Ukrainian-language schools in Crimea had decreased because there was no demand. But the court noted that "language often provides an essential social bond between members of an ethnic group," and recognized this as discrimination.

Why did the court make such decisions? To talk about discrimination within the framework of the Convention on the Elimination of All Forms of Racial Discrimination, it is necessary to prove that Ukrainians and Crimean Tatars are oppressed precisely because of their nationality or ethnic origin.

Both Russia and Ukraine agree that Crimean Tatars and Ukrainians in Crimea are groups protected by this convention. But Russia believes that the Mejlis ban, criminal cases against the Crimean Tatars and other cases are purely political matters that this convention does not regulate. Ukraine, in turn, claims that these issues are related to the Crimean Tatars and Ukrainians in Crimea. They are discriminated against for both political reasons and origin. The court sided with Russia and assumed that the political identity and position of a person or group is not relevant for determining ethnic origin.

The court separately noted that some violations of Russia, which were discussed in the lawsuit, go beyond the merits of the case. But this does not mean that these violations do not exist.

Will there be compensation? It wonʼt be. The court hasnʼt appointed any of them.

Did we win or lose?

Ukraineʼs agent at the UN International Court of Justice Anton Korynevych considers this a victory.

"It was a historic day. For the first time in the history of the UN International Court of Justice, the Russian Federation has been found guilty of violations of international law in relations with Ukraine," he says.

He adds that in addition to the two violations under the two conventions, the court also found that Russia violated the 2017 interim measures banning the Mejlis.

"This formula of 1+1+2 — one violation of each convention and two under the interim measures order — is a very important foundation to move forward. And the recognition of these violations will go into all other decisions of international judicial bodies, in particular, into the decision of the International Court of Justice in our second case, which concerns, among other things, the issue of a full-scale invasion," Korynevych believes.

The former agent of Ukraine at the International Court of the United Nations Lana Zerkal, on the contrary, took the courtʼs decision critically. She wrote on Facebook that this approach of the court "raises serious questions about the further application of international law in modern conditions." And in relation to both conventions.

"Any country can send a Buk and a truckload of cash and legally it canʼt be classified as terrorist financing? Because there is no receipt and bank account?" writes Zerkal. And she adds that after the court rejected the Ukrainian claim to ban the Mejlis, "ethnic minorities felt the most strongly that there is no justice in the modern world."

They are also discussing the very strategy of Ukrainian lawyers at the UN International Court of Justice. Anton Korynevych wrote a column in which he noted that they used the "kitchen sink method" — to present as many different arguments as possible so that at least one of them would work. In fact, it turned out that way — the court recognized one argument from each convention.

Lawyer Andriy Huk from the “Ante” law firm wrote that such a strategy can be dangerous.

"If any demands are made, which may be not just a refusal, but in fact the legalization of a certain behavior of the defendant, it is better to evaluate very strongly and not make such an argument. In the future, the consequences of such an approach to the UN International Court of Justice should be taken into account and it should be changed," he believes.