‘Terrorism’ at the World Court: Ukraine v Russia as an Opportunity for Greater Guidance on Relevant Obligations?

Recently, Ukraine instituted proceedings against Russia before the ICJ, alleging violations of both the International Convention for the Suppression of the Financing of Terrorism (the ‘Convention’) and the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), followed up by a provisional measures request. This post is primarily concerned with the allegations formulated under the former instrument, including Russia’s alleged financing and support of illegal armed groups and terrorist activities in Ukraine, notably with respect to the downing of Flight MH17 (which the UNSC condemned in Resolution 2166 and demanded accountability). Given that a brief provisional measures overview has already been given on this blog, along with broader discussion of the case, I will highlight a few particular points of interest.

Shedding Light on the Convention

The Convention forms part of a series of multilateral conventions (the so-called ‘sectoral’ treaties) dealing specifically with terrorism-related offences and imposing obligations upon parties to criminalise relevant conduct domestically, falling short in many instruments of actually defining ‘terrorism’. The Convention is a notable exception, defining terrorism at Article 2(1) as:

‘[a]n act which constitutes an offence within the scope and as defined in one of the treaties listed in the annex; or…[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when 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’.

The ‘treaties listed’ limb refers to nine of the ‘sectoral’ treaties, including the 1971 Montreal Convention, which has relevance in this case.

Much of the content of these conventions is relatively untried and untested. Some contain compromissory clauses granting jurisdiction to the ICJ in the case of a dispute, including Article 24 of the Convention, on which Ukraine relies. While scholars have lobbied for greater resort to this jurisdictional avenue to bring terrorism cases to the Court, Ukraine’s case marks only the third instance of litigation involving a sectoral anti-terrorism treaty before the international judiciary, alongside the two Lokerbie cases. This is an important moment for the Court, but also for international law.

This collection of anti-terrorism conventions has been described in the most anti-cohesive fashion: a ‘patchwork’ of instruments, a ‘piecemeal’ approach, etc. This is a unique opportunity for the Court to provide helpful interpretive guidance on Article 2(1) and related issues, especially the notion of ‘intent’, a matter of considerable contention between the parties. There is no authoritative judicial pronouncement on this front, despite Ukraine’s efforts in tracking down an Italian Supreme Court of Cassation decision which weakens Russia’s argument by holding that:

‘an action against a military objective must also be regarded as terrorism if the particular circumstances show beyond any doubt that serious harm to the life and integrity of the civilian population are inevitable, creating fear and panic among the local people’ (CR/3, pp 39–40).

While there are many unresolved issues surrounding the legal concept of ‘terrorism’, Ukraine’s case shows that civilians have been targeted for purposes that include ‘intimidat[ing] a population’ and ‘compel[ling] a government or an international organization to do or abstain from doing any act’, with Russia’s support (CR/3, pp 40ff). And that is the essence of ‘terrorism’ under the Convention.

Jurisdiction, Prima Facie or Otherwise

Russia contends that the Court should not take jurisdiction given that the dispute pertains to questions of recourse to force, sovereignty, territorial integrity and self-determination. Where have we seen this movie before? Right: Georgia v Russia shares similarities with this case, not least for the fact that it gave Article 22 of CERD (the compromissory clause) its day in court. As pointed out by Judge Crawford in his recent dissenting opinions in the Marshall Island cases, in the Georgia v Russia case;

‘the doubt was whether that dispute really concerned racial discrimination…or whether Article 22 was being used as a device to bring a wider set of issues before the Court’.

In reviewing the parties’ respective pre- and post- application conduct, it is to be hoped that the Court will avoid relying on its recent jurisdictional formalism, which was criticised by judges writing separately in Marshall Islands (see, eg, Judges Bennouna, Robinson and Crawford). More interestingly, the Article 24 jurisdictional preconditions are not identical to those enshrined in Article 22 of CERD. While the former also requires an attempt to settle the dispute by negotiation, Article 24, upon the expiry of a ‘reasonable time’, then requires an attempt to settle the matter through arbitration, failing which after six months the case can be submitted to the ICJ. Ukraine suggested that constituting an ICJ ad hoc chamber could fulfil the arbitration requirement (CR/3, pp 32–34). This is a novel and interesting argument.

Russia took issue with this position (CR/4, pp 29–30), as did a contributor to this blog. However, it might not be that farfetched, as the Convention does not define the term ‘arbitration’. Of course, Judge Oda opined that an ICJ ad hoc chamber is ‘essentially an arbitral tribunal’. More recently, Judge Tomka emphasised ‘the limits of the Court’s function, resulting from the fact that it has evolved from international arbitration, which is traditionally focused on bilateral disputes’. Indeed, scholars have explored the similarities between the Court and international arbitration. Further, the Gulf of Maine case demonstrated that parties retain considerable control over both the chamber’s composition and the legal questions submitted to it.

Here, Ukraine’s proposal appeared to suggest that it was open to the parties to request the Court – presumably by way of special agreement – to constitute an ad hoc chamber to attempt arbitration prior to formally seizing the Court under Article 24 of the Convention. Ukraine put forth this proposal primarily because the Court’s ‘rules would be available, making it substantially easier to reach final agreement for parties that have had great difficulty reaching agreement’, as was the case between the present parties regarding the organization of an arbitration (CR/3, p 33). In that scenario, the parties would have been free to carefully tailor the scope of questions submitted to the chamber in that special agreement. Had this quasi-arbitral process before the ad hoc chamber failed, Ukraine would not have been barred from instituting proceedings before the Court, as it has now done, pursuant to Article 24 of the Convention at the expiration of the 6-month period. Granted, this might suggest a ‘2-kicks-at-the-can’ approach to ICJ jurisdiction, but it nonetheless raises interesting questions, chief amongst them whether constituting an ad hoc chamber can fulfil an ‘arbitration precondition’ to the seisin of the Court in a compromissory clause.

Moreover, Russia attempted to establish a lack of prima facie jurisdiction by arguing that State responsibility for sponsoring and/or funding terrorism is not captured by the Convention. This position appears somewhat disingenuous or divorced from the broader context. As stressed by Ukraine (CR/3, p 48), the Convention’s drafters reserved the question of ‘State terrorism’, but that is an entirely different question from State responsibility for sponsoring and/or funding terrorism. More importantly, treaty interpretation should not occur in a vacuum; context is everything. Endorsing an overly formalistic construction of the Convention would ignore the tremendous legal developments that have occurred since 9/11, starting with UNSC Resolution 1373 and the counterterrorism edifice erected subsequently. In a monograph, I argue that relevant State and institutional practice places a heightened burden of prevention and due diligence upon States, translating into an enhanced obligation to prevent terrorism. Therefore, some Russian claims conflict with the spirit of both this counterterrorism edifice and the Convention, if it is interpreted in an evolutionary light.

Resolution 1373 basically universalised as mandatory the Convention’s prescriptions for all States, adding that any support – direct or indirect – of terrorism or its financing is prohibited (see James Crawford, State Responsibility, p 160). This international practice also imposes clear obligations of cooperation and mutual assistance in preventing terrorism and its financing. Ukraine alleges various violations by Russia of the Convention, the obligation to cooperate under Article 18 being central (Application, pp 40–42). Therefore, Russia’s knowledge and support, irrespective of its form, of the downing of MH17, bombings in Kharkiv and the shelling of civilians in Ukraine should be regarded as captured by this instrument, provided the underlying acts conform to the Article 2(1) definition.

This case might also have implications for State responsibility for supporting terrorism, should the Court accept Ukraine’s arguments that Russia can be held legally responsible for violating the Convention’s prohibition of financing and sponsorship of terrorism through its own organs or agents (Application, pp 40–42). It is possible that Russia will raise a preliminary objection to challenge the idea that the Convention enshrines obligations requiring States parties not to support/finance terrorism themselves. But even at this stage, the parties have debated the scope and meaning of paragraph 166 of Bosnian Genocide. Ukraine essentially maintains that it would be ‘paradoxical’ for the Convention to obligate States to prevent the financing of terrorism carried out by individuals over which they exert control or influence, but not be themselves accountable for such conduct carried out by their organs or individuals whose actions are attributable to them. Russia entertains a contrary position (CR/2, pp 37ff). In light of the above context, that posture seems to run counter to the spirit of post-9/11 counterterrorism efforts, including a forward-looking and purposive interpretation of the Convention.

Granted, the Convention’s compromissory clause does not incorporate an express reference to State responsibility claims, as compared to Article IX of the Genocide Convention. However, Ukraine is right in stating that:

‘it would be a twisted reading indeed to assume that a State can simply look the other way if its own public organs and officials are engaged in the financing of terrorism’;

this signals that ‘the duty to prevent carries meaning only if the State is prohibited from doing the very thing it is meant to prevent’. This posture clearly aligns with the spirit of Resolution 1373 and subsequent resolutions, which constitute a prism through which the Court should interpret the Convention.

Failure to consider this broader context would be short-sighted, overly formalistic, and a disservice to the underlying cause. While there was a governing treaty on self-defence (UN Charter), in the Wall Advisory Opinion (p 194) the ICJ favoured a State-centric conception of self-defence, thereby failing to consider Resolutions 1368 and 1373 and the fact that non-State actors increasingly mount ‘armed attacks’. This was criticised by judges writing separately (see Judges Higgins, Kooijmans and Buergenthal). Granted, the inter-State dynamic was arguably not relevant in the Wall case, but the Court nonetheless acknowledged that criticism and left the question open subsequently in Armed Activities (para 147).

The Implausibility of Rejecting this Case: Shared Responsibility in Promoting Global Security

A careful review of the facts suggests a plausible claim under the Convention. Ukraine is right in qualifying the definition of ‘terrorism’ broadly, which is also informed by a broad definition of the term ‘funds’ in Article 1(1) (CR/1, pp 40ff). The Court will have to grapple with competing constructions of ‘intent’, but it should not lose sight of the broader context described above. Thus, Ukraine appears justified in emphasising the terms ‘by any means’ ‘provides…funds’, which militate in favour of recognising Russia’s provision of a Buk missile to fighters used in the MH17 incident as an offence under the Convention, for example. Equally sound is Ukraine’s resistance to Russia’s ‘multiple intent requirements…imposed on the Convention’s language’.

Finally, Russia urges the Court not to ‘interfere with, the Minsk II package of measures’ given that the ‘Security Council remains seised of the situation in east Ukraine’. This argument is not entirely convincing. As the ICJ has repeated, the Council’s responsibility in maintaining global security is not exclusive. Article 12 of the UN Charter does not establish a hierarchy between both organs. Rather, they can pursue complementary roles in promoting global security and address different aspects of a broader dispute (see my recent book, pp 143ff).

In Lockerbie, Judge Bedajoui stressed that:

‘the first dispute concern[ed] the extradition of two Libyan nationals and [was] being dealt with, legally, by the Court…whereas the second dispute concern[ed]…State terrorism as well as the international responsibility of the Libyan State and [was] being dealt with, politically, by the Security Council’.

Similar reasoning applies here. The first step towards fulfilling this complementary role for the Court is to seriously consider the pending provisional measures request and taking jurisdiction to provide much-needed clarity on an important anti-terrorism instrument.