Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. In relation to the fulfilment of jurisdictional prerequisites provided for in Article 24 of ICSFT, Ukraine argues that Russia ignored central issues to the dispute and therefore, it could not have reasonably been expected “to continue participating in fruitless negotiation sessions”. In turn, Russia argues that Ukraine did not engage in negotiations bona fide, as the only objective it had allegedly pursued was to take Russia to the Court. Russia further submits that during the negotiations, when the parties were in the course of agreeing on yet another round of negotiations, Ukraine unilaterally walked away from the negotiations.

Regarding the parties’ negotiations on arbitration, Ukraine submits that the parties were unable to agree on the organization of arbitration in the six-month period provided by the Convention. Russia claims that although it produced the full draft of an arbitration agreement, Ukraine never responded with specific comments on the draft (this was later denied by Ukraine). Despite different accounts of the attempted arbitration proceedings, it appears that the parties engaged in the negotiations. Nonetheless, they were unable to agree either on the arbitration setup or on the enforcement of a possible arbitral award. Of particular interest is that Ukraine suggested setting up an arbitral tribunal within the meaning of Article 24 of ICSFT by way of creation of an ad hoc chamber of the ICJ with subsequent enforcement of the future arbitral award through the UNSC under Article 94(2) of the UN Charter. Ukraine appears to have conflated an arbitral tribunal with the ad hoc chamber of the Court that delivers judgments of the Court but not arbitral awards that could be enforced through the UNSC. This begs the question if the arbitration mechanism within the meaning of Article 24 of ICSFT was attempted at all, given Ukraine’s suggestion to institute the ad hoc chamber of the ICJ for the purposes of such proceedings.

With respect to Article 22 of CERD, Ukraine submits that despite extensive diplomatic correspondence and three rounds of negotiations, Russia “never provided straight and specific responses on the issues raised by the Ukrainian side”. Russia maintains that Ukraine did not engage in bona fide negotiations and “abruptly decided to end the consultations” in December 2016. During the oral proceedings, Russia was advancing arguments on Ukraine’s practice of discrimination of Crimean tatars prior to the annexation of Crimea, while providing examples as to how the situation regarding the protection of minority rights has improved after Crimea became part of Russia. Although the parties have placed different emphases on various factual circumstances surrounding the human rights situation in Crimea, there appears to exist a dispute between the parties on the interpretation and application of CERD, as the acts alleged by Ukraine are capable of infringing upon the rights enshrined in CERD (in the words of ICJ Georgia v Russia, Order on Provisional Measures, para 112). It should be sufficient at this stage that Ukraine attempted to initiate discussions with Russia on issues that fall under CERD (ibid., para. 114)

Plausibility of The Most Disputed Claims under ICFST

The most interesting part of the proceedings relates to the parties’ exchange regarding the plausibility of claims under ICFST. Two major points of contention deserve particular attention. The first one relates to the prohibition of state financed terrorism that, as argued by Russia, was not contemplated by the drafters of the Convention. ICFST does not explicitly impose an obligation upon a state to refrain from rendering its support for terrorism, as it only speaks of an obligation in the prevention of the terrorism financing offences, as well as an obligation to cooperate in order to investigate and prosecute those offences. However, an obligation not to engage in the terrorism offences on the part of a state, although not explicitly mentioned, appears to be implied. In that respect, Ukraine was right to seek inspiration from the ICJ Bosnian Genocide case where the ICJ found that an obligation not to commit genocide follows from the expressly stated obligation to prevent the commission of genocide (ICJ Bosnian case, para 166). One can hardly disagree with the ICJ that it would be “paradoxical” if states were only under an obligation to prevent, but “were not forbidden to commit such acts” (ibid). Although the Genocide Convention is different from the ICFST, it would be logical if similar reasoning prevailed in the context of the present case, since an obligation to prevent the terrorism financing offences should imply the prohibition of committing such offences.

Another important aspect of dispute concerns the interpretation of mens rea with respect to the terrorist acts listed in Ukraine’s application that Russia allegedly provided support for. Given that Ukraine alleges that specific incidents of shelling civilians, bombings in Kharkiv and shooting down of MH17 constitute the acts of terrorism within the meaning of Article 2(1) of ICFST that had been financed by Russia, it is unfortunate that Ukraine’s counsel was ambiguous in addressing the mens rea standard for the crime of terrorism and did not spend more time on showing the linkage between the alleged acts of terrorism and knowing financing of such acts. It is clear from the wording of ICFST that an act of terrorism may occur in the context of an armed conflict if “the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. In the context of ICFST, the ‘peacetime’ definition of terrorism was included as a catch-all definition of the primary offence with an added reference to an armed conflict. The mens rea in Article 2(1)(b) is twofold. First of all, it requires (1) the intent to cause death or serious bodily injury to a civilian; and (2) purpose to intimidate a population or pursue certain political objective (dolus specialis). With respect to the first limb of mens rea, the counsel erroneously stated that recklessness would suffice. As to the second limb of mens rea, the counsel merely stated that the attacks listed in Ukraine’s application “would naturally intimidate Ukrainian civilians, and they arose in the context of a group that was seeking political concessions from their Government”. Even at this preliminary stage, the counsel could have made more effort to demonstrate the existence of dolus specialis with respect to the alleged acts of terrorism, as the lack of plausibility in that regard would simply make all Ukraine’s claims under ICFST fall apart. Ukraine might well follow the fate of Yugoslavia v Belgium where, at the stage of provisional measures hearings, the ICJ dismissed the Genocide Convention on a jurisdictional basis, since it was not satisfied that the bombings which formed the subject of the Yugoslav Application “indeed entail the element of intent, towards a group as such” as required by the definition of the crime of genocide (Legality of Use of Force (Yugoslavia v. Belgium), Order on Provisional Measures, paras 40-41).

There are a number of other interesting arguments advanced by Russia, in particular with respect to the absence of the element of discrimination regarding the alleged human rights violations in Crimea, as well as the absence of urgency to order provisional measures as they could interfere with peace processes (Minsk Agreements). All in all, it is a case to be watched, as it has the potential to offer answers on the interpretation of state obligations under CERD, although it is less likely that it will engage with a substantive discussion of Ukraine’s claims under ICFST.