By Tatyana Eatwell
On 16 January 2017 Ukraine instituted proceedings against Russia, and an application for provisional measures, in the International Court of Justice. The case is one of many initiated by the Ukraine against Russia in a number of different international forums that arise out of the on-going armed conflict in eastern Ukraine and unilateral annexation of the Crimean peninsula to Russia in March 2014. Other proceedings include three inter-state cases in the European Court of Human Rights and arbitration proceedings under Annex VII of the UN Convention on the Law of the Sea.
The crisis in Ukraine was triggered by the security service’s violent crackdown of protests against President Yanukovich’s decision not to enter into a trade association agreement with the European Union in November 2013. Rather than quelling the demonstrations, the protests spread from Kiev to other regions in Ukraine. Protesters called for President Yanukovich’s resignation and on 22 February 2014 the parliament voted to impeach the President. President Yanukovich denounced the vote as a ‘coup’ but fled for Russia the same day.
On 27 February 2014, unidentified armed men stormed the Crimean parliament. That evening a new pro-Russian prime minister was elected. The following day armed men wearing unmarked uniforms took over Simferopol airport and surrounded a Ukrainian military facility at Sevastopol. Within four weeks the Crimean peninsular had supposedly seceded from Ukraine. Russia recognised the Crimea as a ‘sovereign state’ and, on 21 March, formally annexed the region to the Federation. Meanwhile violence escalated in the eastern regions of Ukraine. In the Donetsk and Luhansk regions pro-Russian separatists established self-declared ‘people’s republics’.
Ukraine’s application alleges that Russia intervened military in the Ukraine, financed acts of terrorism and violated the human rights of Ukraine’s citizens. In eastern Ukraine Russia is said to have ‘instigated and sustained an armed insurrection against the authority of the Ukrainian state, including by systematically supplying illegal armed groups with heavy weaponry, money, personnel, training, and other support’. In Crimea, Russia is alleged to have committed ‘unlawful aggression’ against Ukraine by seizing and occupying the territory through the use of military force.
However, Russia’s acts of aggression, occupation of Crimea and participation in the armed conflict in the eastern regions through ‘proxies’, issues central to the dispute between the two States, only provide the setting for Ukraine’s application. Instead Ukraine has brought its application under the International Convention on the Suppression of Terrorism Financing, 1999 (Terrorism Financing Convention) and article 22 of the Convention on Elimination of All Forms of Racial Discrimination 1963 (CERD). As such, the application concerns Russia’s alleged financing and support of terrorism, failure to investigate and punish terrorist acts, and policy of harassment and ‘campaign to erase the distinct cultures of ethnic Ukrainian and Tatar people in Crimea carried out through a broad-based pattern of discriminatory acts’. These matters are certainly important, but are peripheral to the core to the dispute between the two States.
Issues relating to Jurisdiction
It is likely that Ukraine has invoked the Terrorism Financing Convention and CERD in order to establish a basis for the Court’s jurisdiction through the Conventions. Russia has not accepted the compulsory jurisdiction of the Court. However, as a parties to the Terrorism Financing Convention and CERD, Ukraine and Russia have accepted the Court’s jurisdiction over ‘any dispute... concerning the interpretation or application’ of each Convention. Both Conventions require the State Party referring the matter to the ICJ to have fulfilled certain procedural preconditions before doing so. Article 24 Terrorism Financing Convention requires the parties to attempt to settle the matter through negotiation or arbitration before it may be referred to the ICJ. Article 22 CERD requires the parties to attempt to settle the matter by negotiation or the special procedures provided for by the Convention, before it may be referred to the ICJ.
In Georgia v Russia the ICJ dismissed Georgia’s application brought pursuant to article 22 CERD on the ground that Georgia had failed to satisfy the procedural preconditions. Ukraine appears to have taken note of the procedural obstacles faced by Georgia and to have attempted to satisfy both procedural preconditions required by article 24 Terrorism Financing Convention (attempt to negotiate or settle in arbitration) and the first precondition required by article 22 CERD (attempt to negotiate). Russia’s initial response to the application, made by the Ministry of Foreign Affairs, suggests that this will be firmly disputed. Further, Ukraine does not claim to have attempted to have used the special procedures provided by CERD to resolve the dispute. With this in mind, the question whether the preconditions are cumulative is likely to arise again.
Ukraine alleges that Russia is in violation of its obligations under the Terrorism Financing Convention by pursuing ‘a campaign to finance terrorist violence in Ukraine through the provision of weapons, funds, and training to illegal armed groups’ and notes particular attacks against civilians including the missile attack against Malaysian airlines flight MH17. Thus, Ukraine frames the situation in eastern Ukraine in terms of ‘terrorism’. This is understandable given that the application is brought under the Terrorism Financing Convention. But it is of note that the ICRC and the ICC have characterised the situation as a non-international armed conflict, governed by international humanitarian law (IHL). Moreover, Ukraine has lodged two declarations under article 12(3) of the Rome Statute that together accept jurisdiction of the ICC over alleged crimes committed on its territory from 21 November 2013 onwards with no end date.
Early comments from the Russian Ministry of Foreign Affairs suggest that Russia will dispute the applicability of the Terrorism Financing Convention to the matters complained of. In its statement the Ministry questions Ukraine’s characterisation of the self-proclaimed Luhansk and Donetsk people’s republics as ‘terrorist’ and refers to the participation of those groups in the Minsk peace process, with a view to resolving the armed conflict. However, it is questionable whether the determination of the situation in Ukraine as an armed conflict precludes the application of the Terrorism Financing Convention to the matters complained of. Article 2(1)(b) of the Terrorism Financing Convention provides that a person commits an offence if that person finances any ‘act intended to cause death or serious injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict’. Such acts are also prohibited under the laws of armed conflict. It is arguable article 2(1)(b) envisages the operation of the Convention in situations of armed conflict, but the scope of the Convention is limited to attacks against civilians and persons hors de combat, and is not applicable to acts that are not prohibited under the laws of armed conflict. There is therefore no clash between a State’s obligations under the two legal regimes.
With regard to the alleged violations of CERD committed in Crimea, so far Russia has not denied that its obligations under the Convention apply to the region. The Ministry of Foreign Affairs’ comment merely states that Russia ‘pays great attention to compliance with its obligations under’ CERD. However, Ukraine may have some difficulty substantiating its claim relating to violations of CERD before the referendum and the annexation of Crimea to Russia. Although third-party States had accused Russia of forcibly taking over military and civilian airports and infrastructure in Crimea, Russia had initially denied that the unidentified armed men were members of its armed forces or acting under its instructions, direction or effective control. Following annexation President Putin acknowledged that Russian servicemen ‘stood behind’ these self-defence groups. Ukraine will need to satisfy the Court that Russian servicemen did more than stand behind these self-defence groups in order to first establish jurisdiction, and second attribution of any conduct of the self-defence groups to Russia.
The oral hearing on provisional measures is scheduled for 6-9March 2017.